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|
|
Exhibit No. |
|
Description of Exhibit |
10.32* |
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Second Amendment to Credit Agreement, dated as of July 6, 2015, to Credit Agreement dated July 30, 2014, between American CareSource Holdings, Inc. and Wells Fargo Bank, National Association. |
10.33* |
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Second Amendment to Credit Agreement, dated as of August 12, 2015, to Credit Agreement dated December 4, 2014, between American CareSource Holdings, Inc. and Wells Fargo Bank, National Association |
10.34* |
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Security and Inter-Creditor Clarification Agreement, dated as of August 12, 2015, by and among American CareSource Holdings, Inc., the subsidiaries party thereto, John Pappajohn, Mark Oman, Bruce Rastetter, and Equity Dynamics, Inc. |
21.1* |
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List of Subsidiaries. |
23.1 |
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Consent of RSM US LLP. |
23.2 |
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Consent of LWBJ LLP. |
23.3* |
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Consent of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC (included in Exhibit 5.1). |
24.1* |
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Power of Attorney. |
101 |
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The following materials formatted in XBRL (eXtensible Business Reporting Language): (i) Consolidated Balance Sheets at December 31, 2014 and September 30, 2015 (unaudited), (ii) Consolidated Statements of Operations for the nine month periods ended September 30, 2014 and 2015 (unaudited), (iii) Consolidated Statements of Stockholders Equity for the nine month periods ended September 30, 2014 and 2015 (unaudited), (iv) Consolidated Statements of Cash Flows for the nine month periods ended September 30, 2014 and 2015 (unaudited), (v) Notes to Unaudited Consolidated Financial Statements, (vi) Consolidated Balance Sheets for the years ended December 31, 2013 and 2014, (vii) Consolidated Statements of Operations for the years ended December 31, 2013 and 2014, (viii) Consolidated Statements of Changes in Stockholders Equity for the years ended December 31, 2013 and 2014, (ix) Consolidated Statements of Cash Flows for the
years ended December 31, 2013 and 2014, and (x) Notes to Audited Consolidated Financial Statements. |
|
** |
Certain confidential portions of this exhibit have been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934, as amended. |
Exhibit 1.1
UNDERWRITING AGREEMENT
between
AMERICAN CARESOURCE HOLDINGS, INC.
and
AEGIS CAPITAL CORP.
as Representative of the Several Underwriters
AMERICAN CARESOURCE HOLDINGS, INC.
UNDERWRITING AGREEMENT
New York, New York
[ ● ],
2015
Aegis Capital Corp.
As Representative of the several Underwriters named on Schedule
1 attached hereto
810 Seventh Avenue – 18th Floor
New York, New York 10019
Ladies and Gentlemen:
The undersigned, American
CareSource Holdings, Inc., a corporation formed under the laws of the State of Delaware (the “Company”), hereby
confirms its agreement (this “Agreement”) with Aegis Capital Corp. (hereinafter referred to as “you”
(including its correlatives) or the “Representative”) and with the other underwriters named on Schedule 1
hereto for which the Representative is acting as representative (the Representative and such other underwriters being collectively
called the “Underwriters” or, individually, an “Underwriter”; in the event that only one
Underwriter is named on Schedule 1 hereto, then all references to "Underwriters" shall be deemed to mean and refer
to such sole Underwriter) as follows:
1. Purchase
and Sale of Securities.
1.1 Firm
Securities.
1.1.1 Nature
and Purchase of Firm Securities.
(i) On
the basis of the representations and warranties herein contained, but subject to the terms and conditions herein set forth, the
Company agrees to issue and sell to the several Underwriters, an aggregate of (i) [ ● ]
Series A Units (the “Firm Series A Units”), each Firm Series A Unit consisting of one share of the Company’s
common stock, per value $0.01 per share (the “Common Stock”), and one warrant (each, a “Warrant”
and collectively, the “Warrants”), each Warrant to purchase one share of Common Stock at an exercise price of
[ ● ] per share and (ii) [ ● ]
Series B Units (the “Firm Series B Units”), each Firm Series B unit consisting of one share of Series A Convertible
Preferred Stock (the “Preferred Shares”) and [ ● ]
Warrants, each Warrant to purchase one share of common stock, or an aggregate of [ ● ]
Warrants to purchase an aggregate of [ ● ]
shares of Common Stock. The Firm Series A Units and the Firm Series B units (each, a “Firm Security” and, collectively,
the “Firm Securities”). The securities comprising the Firm Securities will be separately transferable immediately
upon issuance.
(ii) The
Underwriters, severally and not jointly, agree to purchase from the Company the number of Firm Series A Units and Firm Series B
Units set forth opposite their respective names on Schedule 1 attached hereto and made a part hereof at a purchase price
of $[ ● ] per Firm Security (93%
of the per Firm Security offering price). The Firm Units are to be offered initially to the public at the offering price set forth
on the cover page of the Prospectus (as defined in Section 2.1.1 hereof).
1.1.2 Firm
Securities Payment and Delivery.
(i) Delivery
and payment for the Firm Securities shall be made at 10:00 a.m., Eastern time, on the third (3
rd) Business Day following the effective date (the “Effective Date”) of the Registration Statement
(as defined in Section 2.1.1 below) (or the fourth (4th) Business Day following
the Effective Date if the Registration Statement is declared effective after 4:01 p.m., Eastern time) or at such earlier time as
shall be agreed upon by the Representative and the Company, at the offices of Blank Rome LLP, 405 Lexington Avenue, New York, New
York 10174 (“Representative Counsel”), or at such other place (or remotely by facsimile or other electronic
transmission) as shall be agreed upon by the Representative and the Company. The hour and date of delivery and payment for the
Firm Securities is called the “Closing Date.”
(ii) Payment
for the Firm Securities shall be made on the Closing Date by wire transfer in federal (same day) funds, payable to the order of
the Company upon delivery of the certificates (in form and substance satisfactory to the Underwriters) representing the Firm Securities
(or through the facilities of the Depository Trust Company (“DTC”) for the respective accounts of the Underwriters).
The Firm Securities shall be registered in such name or names and in such authorized denominations as the Representative may request
in writing at least two (2) full Business Days prior to the Closing Date. The Company shall not be obligated to sell or deliver
the Firm Securities except upon tender of payment by the Representative for all of the Firm Securities. The term “Business
Day” means any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions are authorized
or obligated by law to close in New York, New York.
1.2 Over-allotment
Option.
1.2.1 Additional
Securities. The Company hereby grants to the Underwriters an option (the “Over-allotment Option”) to purchase
up to (i) an additional [ ● ]
shares of Common Stock, representing 15% of the shares of Common Stock included in the Firm Securities the Offering (the “Additional
Shares”), and (ii) [ ● ]
additional Warrants to purchase up to [ ● ]
additional shares of Common Stock, representing 15% of the Warrants included in the Firm Securities (the “Additional Warrants”)
and, together with the Additional Shares, the “Additional Securities”) for the sole purpose of covering over-allotment
of such securities, if any. The purchase price to be paid per Additional Share shall be equal to the price per Firm Security set
forth in Section 1.1.1 hereof and the purchase price per Additional Warrant shall be $0.01. The Firm Securities and the Additional
Securities are hereinafter referred to together as the “Public Securities”. The offering and sale of the Public
Securities is herein referred to as the “Offering”. The shares of Common Stock included in the Public Securities
are referred to as the “Offered Shares”; the shares of Common Stock issuable upon conversion of the Preferred Shares
are referred to as the “Conversion Shares”; and the shares of Common Stock issuable upon exercise of the Warrants are
referred to as the “Warrant Shares”).
1.2.2 Exercise
of Option. The Over-allotment Option granted pursuant to Section 1.2.1 hereof may be exercised by the Representative as to
all (at any time) or any part (from time to time) of any combination of Additional Securities from the date hereof until 45 days
after the date of the Prospectus (as defined below)(the “Option Period”). The Underwriters shall not be under
any obligation to purchase any Additional Securities prior to the exercise of the Over-allotment Option. The Over-allotment Option
granted hereby may be exercised by the giving of oral notice to the Company from the Representative, which shall be confirmed in
writing by overnight mail or facsimile or other electronic transmission, setting forth the number of Additional Shares and/or Additional
Warrants to be purchased and the date and time for delivery of and payment for the Additional Shares and/or Additional Warrants
(the “Option Closing Date”), which shall not be later than five (5) full Business Days after the date of the
notice or such other time as shall be agreed upon by the Company and the Representative, at the offices of Representative Counsel
or at such other place (including remotely by facsimile or other electronic transmission) as shall be agreed upon by the Company
and the Representative. If such delivery and payment for the Additional Shares and/or Additional Warrants does not occur on the
Closing Date, the Option Closing Date will be as set forth in the notice. Upon exercise of the Over-allotment Option with respect
to all or any portion of the Additional Securities, subject to the terms and conditions set forth herein, (i) the Company shall
become obligated to sell to the Underwriters the number of Additional Shares and/or Additional Warrants specified in such notice
and (ii) each of the Underwriters, acting severally and not jointly, shall purchase that portion of the total number of Additional
Shares and/or Additional Warrants then being purchased that the number of Firm Securities as set forth in Schedule 1 opposite
the name of such Underwriter bears to the total number of Firm Securities, subject, in each case, to such adjustments as the Representative,
in its sole discretion, shall determine.
1.2.3 Payment
and Delivery. Payment for the Additional Securities shall be made on the Option Closing Date by wire transfer in federal (same
day) funds, payable to the order of the Company upon delivery to you of certificates (in form and substance satisfactory to the
Underwriters) representing the Additional Securities (or through the facilities of DTC for the accounts of the Underwriters). The
Additional Securities shall be registered in such name or names and in such authorized denominations as the Representative may
request in writing at least two (2) full Business Days prior to the Option Closing Date. The Company shall not be obligated to
sell or deliver the Additional Securities except upon tender of payment by the Representative for applicable Additional Securities.
The Option Closing Date may be simultaneous with, but not earlier than, the Closing Date; and in the event that such time and date
are simultaneous with the Closing Date, the term “ Closing Date ” shall refer to the time and date of delivery
of the securities comprising the Firm Securities and the Additional Securities.
2. Representations
and Warranties of the Company. The Company represents and warrants to the Underwriters as of the Applicable Time (as defined
below), as of the Closing Date and as of the Option Closing Date, if any, as follows:
2.1 Filing
of Registration Statement.
2.1.1 Pursuant
to the Securities Act. The Company has filed with the U.S. Securities and Exchange Commission (the “Commission”)
a registration statement, and amendments thereto, on Form S-1 (File No. 333-201947), including any related prospectus or prospectuses,
for the registration of the Public Securities under the Securities Act of 1933, as amended (the “Securities Act”),
which registration statement and amendment or amendments have been prepared by the Company in conformity in all material respects
with the requirements of the Securities Act and the rules and regulations of the Commission under the Securities Act (the “Securities
Act Regulations”) and will contain all material statements that are required to be stated therein in accordance with
the Securities Act and the Securities Act Regulations. Except as the context may otherwise require, such registration statement,
as amended, on file with the Commission at the time the registration statement became effective (including the Preliminary Prospectus
included in the registration statement, financial statements, schedules, exhibits and all other documents filed as a part thereof
or incorporated therein and all information deemed to be a part thereof as of the Effective Date pursuant to paragraph (b) of Rule
430A of the Securities Act Regulations (the “Rule 430A Information”)), is referred to herein as the “Registration
Statement.” If the Company files any registration statement pursuant to Rule 462(b) of the Securities Act Regulations,
then after such filing, the term “Registration Statement” shall include such registration statement filed pursuant
to Rule 462(b). The Registration Statement has been declared effective by the Commission on the date hereof.
Each prospectus used
prior to the effectiveness of the Registration Statement, and each prospectus that omitted the Rule 430A Information that was used
after such effectiveness and prior to the execution and delivery of this Agreement, is herein called a “Preliminary Prospectus.”
The Preliminary Prospectus, subject to completion, dated November [●], 2015, that was included in the Registration Statement
immediately prior to the Applicable Time is hereinafter called the “Pricing Prospectus.” The final prospectus
in the form first furnished to the Underwriters for use in the Offering is hereinafter called the “Prospectus.”
Any reference to the “most recent Preliminary Prospectus” shall be deemed to refer to the latest Preliminary Prospectus
included in the Registration Statement.
“Applicable
Time” means [•] [a.m.]/[p.m.], Eastern time, on the date of this Agreement.
“Issuer Free
Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433 of the Securities
Act Regulations (“Rule 433”), including without limitation any “free writing prospectus” (as defined
in Rule 405 of the Securities Act Regulations) relating to the Public Securities that is (i) required to be filed with the
Commission by the Company, (ii) a “road show that is a written communication” within the meaning of Rule 433(d)(8)(i),
whether or not required to be filed with the Commission, or (iii) exempt from filing with the Commission pursuant to Rule
433(d)(5)(i) because it contains a description of the Public Securities or of the Offering that does not reflect the final terms,
in each case in the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained
in the Company’s records pursuant to Rule 433(g).
“Issuer General
Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is intended for general distribution to prospective
investors (other than a “bona fide electronic road show,” as defined in Rule 433 (the “Bona Fide Electronic
Road Show”)), as evidenced by its being specified in Schedule 2-B hereto.
“Issuer Limited
Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is not an Issuer General Use Free Writing
Prospectus.
“Pricing Disclosure
Package” means any Issuer General Use Free Writing Prospectus issued at or prior to the Applicable Time, the Pricing
Prospectus and the information included on Schedule 2-A hereto, all considered together.
2.1.2 Pursuant
to the Exchange Act. The Common Stock is registered pursuant to Section 12(b) of the Securities Exchange Act of 1934, as amended
(the “Exchange Act”). The Company has taken no action designed to, or likely to have the effect of, terminating
the registration of the shares of Common Stock under the Exchange Act, nor has the Company received any notification that the Commission
is contemplating terminating such registration.
2.2 Stock
Exchange Listing. The Common Stock is listed on The Nasdaq Capital Market (the “NasdaqCM”), and the Company
has taken no action designed to, or likely to have the effect of, delisting the Common Stock from the NasdaqCM, nor has the Company
received any notification that the NasdaqCM is contemplating terminating such listing, except as described in the Registration
Statement, the Pricing Disclosure Package and the Prospectus. After giving effect to the Offer and the other adjustments described
under the caption “Capitalization” in the Registration Statement, Pricing Disclosure Package and Prospectus, the Company
and will have stockholders’ equity as such stockholder’s equity would be calculated on such date by NasdaqCM of at
least $2,500,000.
2.3 No
Stop Orders, etc. Neither the Commission nor, to the Company’s knowledge, any state regulatory authority has issued any
order preventing or suspending the use of the Registration Statement, any Preliminary Prospectus or the Prospectus or has instituted
or, to the Company’s knowledge, threatened to institute, any proceedings with respect to such an order. The Company has complied
with each request (if any) from the Commission for additional information.
2.4 Disclosures
in Registration Statement.
2.4.1 Compliance
with Securities Act and 10b-5 Representation.
(i) Each
of the Registration Statement and any post-effective amendment thereto, at the time it became effective, complied in all material
respects with the requirements of the Securities Act and the Securities Act Regulations. Each Preliminary Prospectus, including
the prospectus filed as part of the Registration Statement as originally filed or as part of any amendment or supplement thereto,
and the Prospectus, at the time each was filed with the Commission, complied in all material respects with the requirements of
the Securities Act and the Securities Act Regulations. Each Preliminary Prospectus delivered to the Underwriters for use in connection
with this Offering and the Prospectus was or will be identical to the electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(ii) Neither
the Registration Statement nor any amendment thereto, at its effective time, as of the Applicable Time, at the Closing Date or
at any Option Closing Date (if any), contained, contains or will contain an untrue statement of a material fact or omitted, omits
or will omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(iii) The
Pricing Disclosure Package, as of the Applicable Time, as of the date of this Agreement, at the Closing Date or at any Option Closing
Date (if any), did not, does not and will not include an untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and each
Issuer Limited Use Free Writing Prospectus hereto does not conflict with the information contained in the Registration Statement,
any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, and each such Issuer Limited Use Free Writing Prospectus,
as supplemented by and taken together with the Pricing Prospectus as of the Applicable Time, did not include an untrue statement
of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to statements
made or statements omitted in reliance upon and in conformity with written information furnished to the Company with respect to
the Underwriters by the Representative expressly for use in the Registration Statement, the Pricing Prospectus or the Prospectus
or any amendment thereof or supplement thereto. The parties acknowledge and agree that such information provided by or on behalf
of any Underwriter consists solely of the following disclosure contained in the “Underwriting” section of the Prospectus:
(a) the second sentence of the second paragraph under the heading “Discounts,” (b) the first sentence under the heading
“Stabilization” and (c) the second sentence of the third bullet under the heading “Stabilization;” and
(ii) includes any other information about the Underwriter furnished by the Underwriter in writing for use in the Registration Statement
or Issuer Free Writing Prospectus (collectively, the “Underwriters’ Information”).
(iv) Neither
the Prospectus nor any amendment or supplement thereto (including any prospectus wrapper), as of its issue date, at the time of
any filing with the Commission pursuant to Rule 424(b), at the Closing Date or at any Option Closing Date, included, includes or
will include an untrue statement of a material fact or omitted, omits or will 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 this representation and warranty shall not apply to the Underwriters’ Information.
2.4.2 Disclosure
of Agreements. The agreements and documents described in the Registration Statement, the Pricing Disclosure Package and the
Prospectus conform in all material respects to the descriptions thereof contained therein and there are no agreements or other
documents required by the Securities Act and the Securities Act Regulations to be described in the Registration Statement, the
Pricing Disclosure Package and the Prospectus or to be filed with the Commission as exhibits to the Registration Statement, that
have not been so described or filed. Each agreement or other instrument (however characterized or described) to which either the
Company or any Subsidiary (as defined below) is a party or by which it is or may be bound or affected and (i) that is filed as
an exhibit to the Registration Statement, the Pricing Disclosure Package and the Prospectus, or (ii) is material to the Company’s
business, has been duly authorized and validly executed by the Company, is in full force and effect in all material respects and
is enforceable against the Company and, to the Company’s knowledge, the other parties thereto, in accordance with its terms,
except (x) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’
rights generally, (y) as enforceability of any indemnification or contribution provision may be limited under the federal
and state securities laws, and (z) that the remedy of specific performance and injunctive and other forms of equitable relief
may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
None of such agreements or instruments has been assigned by the Company, and neither the Company nor, to the Company’s knowledge,
any other party is in default thereunder and, to the Company’s knowledge, no event has occurred that, with the lapse of time
or the giving of notice, or both, would constitute a default thereunder, except for any default or event which would not reasonably
be expected to result in a Material Adverse Change. To the Company’s knowledge, performance by the Company of the material
provisions of such agreements or instruments will not result in a violation of any existing applicable law, rule, regulation, judgment,
order or decree of any governmental or regulatory agency, body or court, domestic or foreign, having jurisdiction over the Company
or any of its assets or business (each, a “Governmental Entity”), including, without limitation, those relating
to environmental laws and regulations, except for any violation which would not reasonably be expected to result in a Material
Adverse Change, except as may be disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
2.4.3 Prior
Securities Transactions. Since August 6, 2015, no securities of the Company have been sold by the Company or by or on behalf
of, or for the benefit of, any person or persons controlling, controlled by or under common control with the Company, except as
disclosed in the Registration Statement, the Pricing Disclosure Package and the Preliminary Prospectus.
2.4.4 Regulations.
The disclosures in the Registration Statement, the Pricing Disclosure Package and the Prospectus concerning the effects of federal,
state, local and all foreign laws, rules and regulations relating to the Company’s business as currently conducted or contemplated
are correct and complete in all material respects and no other such laws, rules or regulations are required to be disclosed in
the Registration Statement, the Pricing Disclosure Package and the Prospectus which are not so disclosed.
2.4.5 No
Other Distribution of Offering Materials. The Company has not, directly or indirectly, distributed and will not distribute
any offering material in connection with the Offering other than any Preliminary Prospectus, the Prospectus and other materials,
if any, permitted under the Securities Act and consistent with Section 3.2 below.
2.5 Changes
After Dates in Registration Statement.
2.5.1 No
Material Adverse Change. Since the respective dates as of which information is given in the Registration Statement, the Pricing
Disclosure Package and the Prospectus, except as disclosed therein: (i) there has been no material adverse change in the financial
position or results of operations of the Company and the Subsidiaries, taken as a whole, nor any change or development that, singularly
or in the aggregate, would involve a material adverse change, in or affecting the condition (financial or otherwise), results of
operations, business or assets of the Company and the Subsidiaries, taken as a whole (a “Material Adverse Change”);
(ii) there have been no material transactions entered into by the Company or any Subsidiary, other than as contemplated pursuant
to this Agreement; and (iii) no officer or director of the Company or any Subsidiary has resigned from any position with the
Company or any Subsidiary which would reasonably be expected to cause a Material Adverse Change.
2.5.2 Recent
Securities Transactions, etc. Subsequent to the respective dates as of which information is given in the Registration Statement,
the Pricing Disclosure Package and the Prospectus, and except as may otherwise be indicated or contemplated herein or disclosed
in the Registration Statement, the Pricing Disclosure Package and the Prospectus, the Company has not: (i) issued any securities,
other than shares of Common Stock issuable upon the exercise of then outstanding options, warrants and convertible securities;
(ii) incurred any liability or obligation, direct or contingent, for borrowed money; or (iii) declared or paid any
dividend or made any other distribution on or in respect to its capital stock.
2.6 Independent
Accountants. To the knowledge of the Company, McGladrey LLP (the “Auditor”), whose report is filed with
the Commission as part of the Registration Statement, the Pricing Disclosure Package and the Prospectus, is an independent registered
public accounting firm as required by the Securities Act and the Securities Act Regulations and the Public Company Accounting Oversight
Board. The Auditor has not, during the periods covered by the financial statements included in the Registration Statement, the
Pricing Disclosure Package and the Prospectus, provided to the Company any non-audit services, as such term is used in Section
10A(g) of the Exchange Act.
2.7 Financial
Statements, etc. The financial statements, including the notes thereto and supporting schedules, if any, included in the Registration
Statement, the Pricing Disclosure Package and the Prospectus, fairly present the financial position and the results of operations
of the Company at the dates and for the periods to which they apply; and such financial statements have been prepared in conformity
with U.S. generally accepted accounting principles (“GAAP”), consistently applied throughout the periods involved
(provided that unaudited interim financial statements are subject to year-end audit adjustments that are not expected to be material
in the aggregate and do not include certain information and footnote disclosure required by GAAP). Except as included therein,
no historical or pro forma financial statements are required to be included in the Registration Statement, the Pricing Disclosure
Package or the Prospectus under the Securities Act or the Securities Act Regulations. The pro forma and pro forma as adjusted financial
information and the related notes, if any, included in the Registration Statement, the Pricing Disclosure Package and the Prospectus
have been properly compiled and prepared in accordance with the applicable requirements of the Securities Act and the Securities
Act Regulations and present fairly the information shown therein, and the assumptions used in the preparation thereof are reasonable
and the adjustments used therein are appropriate to give effect to the transactions and circumstances referred to therein. All
disclosures contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus regarding “non-GAAP
financial measures” (as such term is defined by the rules and regulations of the Commission), if any, comply with Regulation
G of the Exchange Act and Item 10 of Regulation S-K of the Securities Act, to the extent applicable. The pro forma financial information
included in the Registration Statement, the Pricing Disclosure Package and the Prospectus present fairly in all material respects
the information shown therein and have been prepared in accordance with applicable rules and guidelines of the Commission with
respect to pro forma financial information. The pro forma adjustments have been properly applied to the historical amounts in the
compilation of the information and the Company believes that the assumptions underlying the pro forma adjustments are reasonable.
No other pro forma financial information is required to be included in the Registration, the Prospectus or the Pricing Disclosure
Package. Each of the Registration Statement, the Pricing Disclosure Package and the Prospectus discloses all material off-balance
sheet transactions, arrangements, obligations (including contingent obligations), and other relationships of the Company with unconsolidated
entities or other persons that may have a material current or future effect on the Company’s financial condition, changes
in financial condition, results of operations, liquidity, capital expenditures, capital resources, or significant components of
revenues or expenses. Except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, (a)
the Company has not incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions
other than in the ordinary course of business, (b) the Company has not declared or paid any dividends or made any distribution
of any kind with respect to its capital stock, (c) there has not been any change in the capital stock of the Company, (d) other
than in the ordinary course of business and consistent with the Company’s prior policies, made any grants under any stock
compensation plan, and (e) there has not been any Material Adverse Change in the Company’s long-term or short-term debt.
2.8 Authorized
Capital; Options, etc. The Company had, at the date or dates indicated in the Registration Statement, the Pricing Disclosure
Package and the Prospectus, the duly authorized, issued and outstanding capitalization as set forth therein. Based on the assumptions
stated in the Registration Statement, the Pricing Disclosure Package and the Prospectus, the Company will have on the Closing Date
the adjusted stock capitalization set forth therein. Except as set forth in, or contemplated by, the Registration Statement, the
Pricing Disclosure Package and the Prospectus, on the Effective Date , as of the Applicable Time and on the Closing Date and any
Option Closing Date, there will be no stock options, warrants, or other rights to purchase or otherwise acquire any authorized
but unissued shares of Common Stock of the Company or any security convertible or exercisable into shares of Common Stock of the
Company, or any contracts or commitments to issue or sell shares of Common Stock or any such options, warrants, rights or convertible
securities.
2.9 Valid
Issuance of Securities, etc.
2.9.1 Outstanding
Securities. All issued and outstanding securities of the Company issued prior to the transactions contemplated by this Agreement
have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no contractual rights
of rescission or put rights with respect thereto, and are not subject to personal liability by reason of being such holders; and
none of such securities were issued in violation of the preemptive rights, rights of first refusal or rights of participation of
any holders of any security of the Company or similar contractual rights granted by the Company. The authorized shares of Common
Stock conform in all material respects to all statements relating thereto contained in the Registration Statement, the Pricing
Disclosure Package and the Prospectus. The offers and sales of the outstanding shares of Common Stock, options, warrants and other
rights to purchase or exchange such securities for shares of the Common Stock were at all relevant times either registered under
the Securities Act and the applicable state securities or “blue sky” laws or, based in part on the representations
and warranties of the purchasers of such shares of Common Stock, exempt from such registration requirements.
2.9.2 Securities
Sold Pursuant to this Agreement. The Public Securities, the Offered Shares and the Warrants have been duly authorized for issuance
and sale and, when issued and paid for as set forth herein, will be validly issued, fully paid and non-assessable; the holders
thereof are not and will not be subject to personal liability by reason of being such holders; the Public Securities are not and
will not be subject to the preemptive rights of any holders of any security of the Company or similar contractual rights granted
by the Company; and all corporate action required to be taken for the authorization, issuance and sale of the Public Securities
has been duly and validly taken. The Public Securities conform in all material respects to the description thereof contained in
the Registration Statement, the Pricing Disclosure Package and the Prospectus. All corporate action required to be taken for the
authorization, issuance and sale of the Warrant Shares issuable upon exercise of the Warrants and the Conversion Shares issuable
upon conversion of the Preferred Shares have been duly authorized and such Warrant Shares and Conversion Shares have been reserved
for issuance by all necessary corporate action on the part of the Company. The Warrant Shares and the Conversion Shares will be
validly issued, fully paid and non-assessable and, when paid for and issued in accordance with the Warrants and the agreement evidencing
the Warrants (the “Warrant Agreement”) or the Certificate of Designation of Preferences, Rights and Limitations
of Series A Convertible Preferred Stock (the “Certificate of Designation”), as the case may be; the holders thereof
are not and will not be subject to personal liability by reason of being such holders; and such shares of Common Stock are not
and will not be subject to the preemptive rights of any holders of any security of the Company or similar contractual rights granted
by the Company.
2.10 Registration
Rights of Third Parties. Except as set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus,
no holders of any securities of the Company or any options, warrants, rights or other securities exercisable for or convertible
or exchangeable into securities of the Company have the right to require the Company to register any such securities of the Company
under the Securities Act or to include any such securities in the Registration Statement or any other registration statement to
be filed by the Company.
2.11 Validity
and Binding Effect of Agreements. Each of this Agreement, the Certificate of Designation and the Warrant Agreement has been
duly and validly authorized by the Company, and the Agreement constitutes and the Certificate of Designation and the Warrant Agreement,
when executed and delivered, will constitute, the valid and binding agreement of the Company, enforceable against the Company in
accordance with its terms, except: (i) as such enforceability may be limited by bankruptcy, insolvency, reorganization or
similar laws affecting creditors’ rights generally; (ii) as enforceability of any indemnification or contribution provision
may be limited under the federal and state securities laws; and (iii) that the remedy of specific performance and injunctive
and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought. The Certificate of Designation will be duly filed with the Secretary of State of the State
of Delaware.
2.12 No
Conflicts, etc. The execution, delivery and performance by the Company of this Agreement, the Certificate of Designation, the
Warrants, the Warrant Agreement and all ancillary documents, the filing of the Certificate of Designation with the Secretary of
State of the State of Delaware, the consummation by the Company of the transactions herein and therein contemplated and the compliance
by the Company with the terms hereof and thereof do not and will not, with or without the giving of notice or the lapse of time
or both: (i) result in a material breach of, or conflict with any of the terms and provisions of, or constitute a material
default under, or result in the creation, modification, termination 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 indenture, mortgage, deed of trust, loan agreement or any
other agreement or instrument to which the Company or any Subsidiary is a party or as to which any property of the Company or any
Subsidiary is a party; (ii) result in any violation of the provisions of the Company’s Certificate of Incorporation
(as the same have been amended or restated from time to time, the “Charter”) or the by-laws of the Company or
the formation documents of any Subsidiary (as the same may be amended or restated from time to time); or (iii) violate any
existing applicable law, rule, regulation, judgment, order or decree of any Governmental Entity as of the date hereof (including,
without limitation, those promulgated by the U.S. Department of Health and Human Services (the “HHS”) or by
any foreign, state or local Governmental Entity performing functions similar to those performed by the HHS), except in the cases
of clauses (i) and (iii) for such breaches, conflicts or violations which would not reasonably be expected to cause a Material
Adverse Change.
2.13 No
Defaults; Violations. No material default exists in the due performance and observance of any term, covenant or condition of
any material license, contract, indenture, mortgage, deed of trust, note, loan or credit agreement, or any other agreement or instrument
evidencing an obligation for borrowed money, or any other material agreement or instrument to which the Company or any Subsidiary
is a party or by which the Company or any Subsidiary may be bound or to which any of the properties or assets of the Company or
any Subsidiary is subject. Neither the Company nor any Subsidiary is (i) in violation of any term or provision of its Charter or
by-laws, or (ii) in violation of any franchise, license, permit, applicable law, rule, regulation, judgment or decree of any Governmental
Entity, except in the cases of clause (ii) for such violations which would not reasonably be expected to cause a Material Adverse
Change.
2.14 Corporate
Power; Licenses; Consents.
2.14.1 Conduct
of Business. Except as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, each of
the Company and each Subsidiary has all requisite corporate power and authority, and has all necessary consents, authorizations,
approvals, orders, licenses, certificates, qualifications, registrations and permits (collectively, the “Authorizations”)
of and from all Governmental Entities that it needs as of the date hereof to conduct its business purpose as described in the Registration
Statement, the Pricing Disclosure Package and the Prospectus, except where the failure to possess such Authorizations would not
reasonably be expected to cause a Material Adverse Change.
2.14.2 Transactions
Contemplated Herein. The Company has all corporate power and authority to enter into this Agreement, the Certificate of Designation,
the Warrants and the Warrant Agreement and to carry out the provisions and conditions hereof and thereof, and all Authorizations
required in connection therewith have been obtained. No Authorization of, and no filing with, Governmental Entity is required for
the valid issuance, sale and delivery of the Public Securities, the Offered Shares, the Warrants, the Warrant Shares and the Conversion
Shares, and the consummation of the transactions and agreements contemplated by this Agreement and as contemplated by the Registration
Statement, the Pricing Disclosure Package and the Prospectus, except with respect to applicable federal and state securities laws
and the rules and regulations of the Financial Industry Regulatory Authority, Inc. (“FINRA”).
2.15 D&O
Questionnaires. To the Company’s knowledge, all information contained in the questionnaires (the “Questionnaires”)
completed by each of the Company’s directors and officers immediately prior to the Offering (the “Insiders”)
as supplemented by all information concerning the Company’s directors and officers as described in the Registration Statement,
the Pricing Disclosure Package and the Prospectus, provided to the Underwriters is true and correct in all material respects and
the Company has not become aware of any information which would cause the information disclosed in the Questionnaires to become
inaccurate and incorrect in any material respect.
2.16 Litigation;
Governmental Proceedings. There is no action, suit, proceeding, inquiry, arbitration, investigation, litigation or governmental
proceeding pending or, to the Company’s knowledge, threatened against, or involving the Company or any Subsidiary or, to
the Company’s knowledge, any executive officer or director of the Company which has not been disclosed in the Registration
Statement, the Pricing Disclosure Package and the Prospectus which is required to be disclosed.
2.17 Good
Standing. Each of the Company and each Subsidiary has been duly organized and is validly existing as a corporation and is in
good standing under the laws of its jurisdiction of incorporation, and is duly qualified to do business and is in good standing
in each other jurisdiction in which its ownership or lease of property or the conduct of business requires such qualification,
except where the failure to qualify, singularly or in the aggregate, would not have or reasonably be expected to result in a Material
Adverse Change.
2.18 Insurance.
Each of the Company and each Subsidiary carries or is entitled to the benefits of insurance (including, without limitation, as
to directors and officers insurance coverage), with, to the Company’s knowledge, reputable insurers, in such amounts and
covering such risks which the Company believes are adequate, and all such insurance is in full force and effect. Neither the Company
nor any Subsidiary has no reason to believe that it will not be able (i) to renew its existing insurance coverage as and when such
policies expire or (ii) to obtain comparable coverage from similar institutions as may be necessary or appropriate to conduct its
business as now conducted and at a cost that would not result in a Material Adverse Change.
2.19 Transactions
Affecting Disclosure to FINRA.
2.19.1 Finder’s
Fees. Except as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, there are no claims,
payments, arrangements, agreements or understandings relating to the payment of a finder’s, consulting or origination fee
by the Company or any Insider or Subsidiary with respect to the sale of the Public Securities hereunder or any other arrangements,
agreements or understandings of the Company or, to the Company’s knowledge, any of its shareholders that may affect the Underwriters’
compensation, as determined by FINRA.
2.19.2 Payments
Within Six (6) Months. Except as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus,
the Company has not made any direct or indirect payments (in cash, securities or otherwise) to: (i) any person, as a finder’s
fee, consulting fee or otherwise, in consideration of such person raising capital for the Company or introducing to the Company
persons who raised or provided capital to the Company; (ii) any FINRA member; or (iii) any person or entity that has any
direct or indirect affiliation or association with any FINRA member, within the six (6) months prior to the initial filing of the
Registration Statement, other than the payment to the Underwriters as provided hereunder in connection with the Offering.
2.19.3 Use
of Proceeds. None of the net proceeds of the Offering will be paid by the Company to any participating FINRA member or its
affiliates, except as specifically disclosed therein.
2.19.4 FINRA
Affiliation. To the knowledge of the Company, there is no (i) officer or director of the Company, (ii) beneficial owner of
5% or more of any class of the Company’s securities or (iii) beneficial owner of the Company’s unregistered equity
securities which were acquired during the 180-day period immediately preceding the filing of the Registration Statement that is
an affiliate or associated person of a FINRA member participating in the Offering (as determined in accordance with the rules and
regulations of FINRA).
2.19.5 Information.
All information provided by the Company in its FINRA questionnaire to Representative Counsel specifically for use by Representative
Counsel in connection with its Public Offering System filings (and related disclosure) with FINRA is true, correct and complete
in all material respects.
2.20 Foreign
Corrupt Practices Act. Neither the Company, any Subsidiary nor, to the Company’s knowledge, any director, officer, agent,
employee or affiliate of the Company nor any other person acting on behalf of the Company, has, directly or indirectly, given or
agreed to give any money, gift or similar benefit (other than legal price concessions to customers in the ordinary course of business)
to any customer, supplier, employee or agent of a customer or supplier, or official or employee of any governmental agency or instrumentality
of any government (domestic or foreign) or any political party or candidate for office (domestic or foreign) or other person who
was, is, or may be in a position to help or hinder the business of the Company or any Subsidiary (or assist it in connection with
any actual or proposed transaction) that (i) might subject the Company or any Subsidiary to any material damage or penalty
in any civil, criminal or governmental litigation or proceeding, (ii) if not given in the past, might have had a Material
Adverse Change or (iii) if not continued in the future, might adversely affect the assets, business, operations or prospects
of the Company or any Subsidiary. Each of the Company and each Subsidiary has taken reasonable steps to ensure that its accounting
controls and procedures are sufficient to cause the Company and each Subsidiary to comply in all material respects with the Foreign
Corrupt Practices Act of 1977, as amended.
2.21 Compliance
with OFAC. Neither the Company, any Subsidiary nor, to the Company’s knowledge, any director, officer, agent, employee
or affiliate of the Company nor any other person acting on behalf of the Company, is currently subject to any U.S. sanctions administered
by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”), and neither the Company
nor any Subsidiary will not, directly or indirectly, use the proceeds of the Offering hereunder, or lend, contribute or otherwise
make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the
activities of any person currently subject to any U.S. sanctions administered by OFAC.
2.22 Money
Laundering Laws. The operations of the Company and each Subsidiary are and have been conducted at all times in compliance with
applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, the money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules,
regulations or guidelines, issued, administered or enforced by any Governmental Entity (collectively, the “Money Laundering
Laws”); and no action, suit or proceeding by or before any Governmental Entity involving the Company or any Subsidiary
with respect to the Money Laundering Laws is pending or, to the best knowledge of the Company, threatened.
2.23 Forward-Looking
Statements. No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange
Act) contained in either the Registration Statement, Pricing Disclosure Package or the Prospectus has been made or reaffirmed without
a reasonable basis or has been disclosed other than in good faith.
2.24 Officers’
Certificate. Any certificate signed by any duly authorized officer of the Company and delivered to you or to Representative
Counsel shall be deemed a representation and warranty by the Company to the Underwriters as to the matters covered thereby.
2.25 Lock-Up
Agreements. Schedule 3 hereto contains a complete and accurate list of each of the Company’s officers, directors
and 5% or greater holders of the Company’s securities (collectively, the “Lock-Up Parties”). The Company
has caused each of the Lock-Up Parties to deliver to the Representative an executed Lock-Up Agreement, in the form attached hereto
as Exhibit A (the “Lock-Up Agreement”), prior to the execution of this Agreement.
2.26 Subsidiaries.
The Company owns the membership interests in the following corporations and limited liability companies: Ancillary Care Services,
Inc., a Delaware corporation, ACSH Urgent Care Holdings, LLC, a Delaware limited liability company, and ACSH Primary Care Holdings,
LLC, a Delaware limited liability company (each a “Subsidiary” and collectively, the “Subsidiaries”).
The Company has no other interest, nominal or beneficial, direct or indirect, in any other corporation, partnership, limited liability
company, joint venture or other business entity that would be a “significant subsidiary,” as that term is defined in
Rule 1-02 of Regulation S-X. All of the outstanding membership interests of each Subsidiary have been duly authorized and validly
issued, are fully paid and non-assessable and, except to the extent set forth in the Registration Statement or the Prospectus,
are owned by the Company directly or indirectly through one or more wholly-owned subsidiaries, free and clear of any claim, lien,
encumbrance, security interest, restriction upon voting or transfer or any other claim of any third party. Except as disclosed
in the Registration Statement or the Prospectus, no director, officer, or key employee of the Company named in the Prospectus holds
any direct equity, debt or other pecuniary interest in any Subsidiary or, to the best of the Company’s knowledge, any Person
with whom the Company or any Subsidiary does business or is in privity of contract with, other than, in each case, indirectly through
the ownership by such individuals of shares of Common Stock.
2.27 Related
Party Transactions.
2.27.1 Business
Relationships. There are no business relationships or related party transactions involving the Company or any Subsidiary or
any other person required to be described in the Registration Statement, the Pricing Disclosure Package and the Prospectus that
have not been described as required.
2.27.2 No
Unconsolidated Entities. There are no transactions, arrangements or other relationships between and/or among the Company, any
of its Subsidiaries or affiliates (as such term is defined in Rule 405 of the Securities Act) and any unconsolidated entity, including,
but not limited to, any structure finance, special purpose or limited purpose entity that could reasonably be expected to materially
affect the Company’s or any Subsidiary’s liquidity or the availability of or requirements for its capital resources
required to be described in the Pricing Disclosure Package and the Prospectus or a document incorporated by reference therein which
have not been described as required.
2.27.3 No
Loans or Advances to Affiliates. There are no outstanding loans, advances (except normal advances for business expenses in
the ordinary course of business) or guarantees or indebtedness by the Company or any Subsidiary to or for the benefit of any of
the officers or directors of the Company or any Subsidiary or any of their respective family members, except as disclosed in the
Registration Statement, the Pricing Disclosure Package and the Prospectus.
2.28 Board
of Directors. The Board of Directors of the Company is comprised of the persons set forth under the heading of the Pricing
Prospectus and the Prospectus captioned “Management.” The qualifications of the persons serving as board members and
the overall composition of the board comply with the Exchange Act and the rules and regulations of the Commission promulgated thereunder
(the “Exchange Act Regulations”), the Sarbanes-Oxley Act of 2002 and the rules promulgated thereunder (the “Sarbanes-Oxley
Act”) applicable to the Company and the listing rules of the Nasdaq Stock Market LLC. At least one member of the Audit
Committee of the Board of Directors of the Company qualifies as an “audit committee financial expert,” as such term
is defined under Regulation S-K and the listing rules of the Nasdaq Stock Market LLC. In addition, at least a majority of the persons
serving on the Board of Directors qualify as “independent,” as defined under the listing rules of the Nasdaq Stock
Market LLC.
2.29 Sarbanes-Oxley
Compliance.
2.29.1 Disclosure
Controls. The Company has developed and currently maintains disclosure controls and procedures that comply with Rule 13a-15
or 15d-15 under the Exchange Act Regulations, and such controls and procedures are effective to ensure that all material information
concerning the Company will be made known on a timely basis to the individuals responsible for the preparation of the Company’s
Exchange Act filings and other public disclosure documents.
2.29.2 Compliance.
The Company is, or at the Applicable Time and on the Closing Date will be, in material compliance with the provisions of the Sarbanes-Oxley
Act applicable to it, and has implemented or will implement such programs and taken reasonable steps to ensure the Company’s
future compliance (not later than the relevant statutory and regulatory deadlines therefor) with all of the material provisions
of the Sarbanes-Oxley Act.
2.30 Accounting
Controls. Except as disclosed in the Registration Statement, Pricing Disclosure Package and the Prospectus, the Company maintains
systems of “internal control over financial reporting” (as defined under Rules 13a-15 and 15d-15 under the Exchange
Act Regulations ) that comply in all material respects with the requirements of the Exchange Act and have been designed by, or
under the supervision of, their respective principal executive and principal financial officers, or persons performing similar
functions, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements
for external purposes in accordance with GAAP, including, but not limited to, internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations;
(ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain
asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization;
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. Except as disclosed in the Registration Statement, the Pricing Disclosure Package and
the Prospectus, the Company is not aware of any material weaknesses in its internal controls. The Company’s auditors and
the Audit Committee of the Board of Directors of the Company have been advised of: (i) all significant deficiencies and material
weaknesses in the design or operation of internal controls over financial reporting which are known to the Company’s management
and that have adversely affected or are reasonably likely to adversely affect the Company’s ability to record, process, summarize
and report financial information; and (ii) any fraud known to the Company’s management, whether or not material, that involves
management or other employees who have a significant role in the Company’s internal controls over financial reporting.
2.31 No
Investment Company Status. Neither the Company nor any Subsidiary is and, after giving effect to the Offering and the application
of the proceeds thereof as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, neither
the Company nor any Subsidiary will be, required to register as an “investment company,” as defined in the Investment
Company Act of 1940, as amended.
2.32 No
Labor Disputes. No labor dispute with the employees of the Company or any Subsidiary exists or, to the knowledge of the Company,
is imminent. The Company is not aware that any key employee or significant group of employees of the Company or any Subsidiary
plans to terminate employment with the Company or any Subsidiary.
2.33 Intellectual
Property Rights. The Company owns or possesses or has valid rights in certain patents, patent applications, trademarks, service
marks, trade names, trademark registrations, service mark registrations, copyrights, licenses, inventions, trade secrets, software,
databases, know-how, internet domain names, other unpatented and/or unpatentable proprietary confidential information systems,
processes or procedures and similar rights (“Intellectual Property Rights”) relating to the conduct of the business
of the Company as currently carried on and as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
We have no reason to believe that the Intellectual Property described in the Registration Statement, Pricing Disclosure Package
and the Prospectus is not valid, binding upon and enforceable against the parties thereto in accordance with its terms. To the
knowledge of the Company, no action or use by the Company necessary for the conduct of its business as currently carried on and
as described in the Registration Statement and the Prospectus will involve or give rise to any infringement of any Intellectual
Property Rights of others, where such infringement would cause a Material Adverse Change. Neither the Company nor any Subsidiary
has received any notice alleging any such infringement, fee or conflict with asserted Intellectual Property Rights of others. Except
as would not reasonably be expected to result, individually or in the aggregate, in a Material Adverse Change, to the knowledge
of the Company (A) there is no infringement, misappropriation or violation by third parties of any of the Intellectual Property
Rights owned by the Company or any Subsidiary; (B) there is no pending or threatened action, suit, proceeding or claim by others
challenging the rights of the Company or any Subsidiary in or to any such Intellectual Property Rights, and the Company is unaware
of any facts that would form a reasonable basis for any such claim, that would, individually or in the aggregate, together with
any other claims in this Section 2.34, reasonably be expected to result in a Material Adverse Change; (C) the Intellectual Property
Rights owned by the Company and each Subsidiary and the Intellectual Property Rights licensed to the Company and each Subsidiary
have not been adjudged by a court of competent jurisdiction invalid or unenforceable, in whole or in part, and there is no pending
or threatened action, suit, proceeding or claim by others challenging the validity or scope of any such Intellectual Property Rights,
and the Company is unaware of any facts that would form a reasonable basis for any such claim that would, individually or in the
aggregate, together with any other claims in this Section 2.34, reasonably be expected to result in a Material Adverse Change;
(D) there is no pending or threatened action, suit, proceeding or claim by others that the Company or any Subsidiary infringes,
misappropriates or otherwise violates any Intellectual Property Rights or other proprietary rights of others, neither the Company
nor any Subsidiary has received any written notice of such claim and the Company is unaware of any other facts that would form
a reasonable basis for any such claim that would, individually or in the aggregate, together with any other claims in this Section
2.34, reasonably be expected to result in a Material Adverse Change; and (E) no employee of the Company or any Subsidiary is in
or has ever been in violation in any material respect of any term of any employment contract, patent disclosure agreement, invention
assignment agreement, non-competition agreement, non-solicitation agreement, nondisclosure agreement or any restrictive covenant
to or with a former employer where the basis of such violation relates to such employee’s employment with the Company or
any Subsidiary, or actions undertaken by the employee while employed with the Company or any Subsidiary and could reasonably be
expected to result, individually or in the aggregate, in a Material Adverse Change. To the Company’s knowledge, all material
technical information developed by and belonging to the Company or any Subsidiary that has not been patented or published has been
kept confidential. To the Company’s knowledge, neither the Company nor any Subsidiary is a party to or bound by any options,
licenses or agreements with respect to the Intellectual Property Rights of any other person or entity that are required to be set
forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus and are not described therein. The Registration
Statement, the Pricing Disclosure Package and the Prospectus contain in all material respects the same description of the matters
set forth in the preceding sentence. To the Company’s knowledge, none of the technology employed by the Company or any Subsidiary
has been obtained or is being used by the Company or any Subsidiary in violation of any contractual obligation binding on the Company
or any of its Subsidiaries, officers, directors or employees, or otherwise in violation of the rights of any persons, where such
violation would cause a Material Adverse Change.
2.34 Taxes.
Each of the Company and each Subsidiary has filed all returns (as hereinafter defined) required to be filed with taxing authorities
prior to the date hereof or has duly obtained extensions of time for the filing thereof, except in any case in which the failure
so to file would not reasonably be expected to cause a Material Adverse Change and except as set forth in or disclosed in the Registration
Statement, Pricing Disclosure Package or Prospectus. Each of the Company and each Subsidiary has paid all taxes (as hereinafter
defined) shown as due on such returns that were filed and has paid all taxes imposed on or assessed against the Company or such
Subsidiary, except for any such taxes that are currently being contested in good faith or as would not reasonably be expected to
cause a Material Adverse Change and except as set forth in or disclosed in the Registration Statement, Pricing Disclosure Package
or Prospectus. The provisions for taxes payable, if any, shown on the financial statements filed with or as part of the Registration
Statement are sufficient for all accrued and unpaid taxes, whether or not disputed, and for all periods to and including the dates
of such consolidated financial statements. Except as disclosed in writing to the Underwriters, (i) no issues have been raised (and
are currently pending) by any taxing authority in connection with any of the returns or taxes asserted as due from the Company
or any Subsidiary, and (ii) no waivers of statutes of limitation with respect to the returns or collection of taxes have been given
by or requested from the Company or any Subsidiary. There are no material tax liens against the assets, properties or business
of the Company or of any Subsidiary. The term “taxes” means all federal, state, local, foreign and other net
income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use,
withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties or
other taxes, fees, assessments or charges of any kind whatever, together with any interest and any penalties, additions to tax
or additional amounts with respect thereto. The term “returns” means all returns, declarations, reports, statements
and other documents required to be filed in respect to taxes.
2.35 Compliance
with Environmental Laws. Except as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus
and except as would not, singly or in the aggregate, reasonably be expected to result in a Material Adverse Change, (i) neither
the Company nor any Subsidiary is in violation of any federal, state, local or foreign statute, law, rule, regulation, ordinance,
code, policy or rule of common law or any judicial or administrative interpretation thereof, including any judicial or administrative
order, consent, decree or judgment, relating to pollution or protection of human health, the environment (including, without limitation,
ambient air, surface water, groundwater, land surface or subsurface strata) or wildlife, including, without limitation, laws and
regulations relating to the release or threatened release of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous
substances, petroleum or petroleum products (collectively, “Hazardous Materials”) or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials (collectively, “Environmental
Laws ), (ii) each of the Company and each Subsidiary has all material permits, authorizations and approvals required under
any applicable Environmental Laws and is in compliance with their requirements, (iii) there are no pending or, to the Company’s
knowledge, threatened administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigation or proceedings relating to any Environmental Law against the Company or any Subsidiary
and (iv) to the Company’s knowledge, there are no events or circumstances that might reasonably be expected to form the basis
of an order for clean-up or remediation, or an action, suit or proceeding by any private party or governmental body or agency,
against or affecting the Company or any Subsidiary relating to Hazardous Materials or any Environmental Laws, except where such
non-compliance with Environmental Laws, failure to receive or comply with required permits, authorizations or approvals, liability
or status as a potentially responsible party would not reasonably be expected to cause a Material Adverse Change and except as
set forth in or disclosed in the Registration Statement, Pricing Disclosure Package or Prospectus.
2.36 ERISA
Compliance. Except in each case as would not reasonably be expected to cause a Material Adverse Change: (A) The Company, each
Subsidiary and any “employee benefit plan” (as defined under the Employee Retirement Income Security Act of 1974, as
amended, and the regulations and published interpretations thereunder (collectively, “ERISA”)) established or
maintained by the Company, any Subsidiary or any of their “ERISA Affiliates” (as defined below) are in compliance in
all material respects with ERISA. “ERISA Affiliate” means, with respect to the Company or any Subsidiary, any
member of any group of organizations described in Sections 414(b),(c),(m) or (o) of the Internal Revenue Code of 1986, as amended,
and the regulations and published interpretations thereunder (the “Code”) of which the Company or any Subsidiary
is a member. (B) No “reportable event” (as defined under ERISA) has occurred or is reasonably expected to occur with
respect to any “employee benefit plan” established or maintained by the Company or any of its Subsidiaries or ERISA
Affiliates. No “employee benefit plan” established or maintained by the Company or any of its Subsidiaries or ERISA
Affiliates, if such “employee benefit plan” were terminated, would have any “amount of unfunded benefit liabilities”
(as defined under ERISA). (C) Neither the Company nor any of its Subsidiaries or ERISA Affiliates has incurred or reasonably expects
to incur any material liability under (i) Title IV of ERISA with respect to termination of, or withdrawal from, any “employee
benefit plan” or (ii) Sections 412, 4971, 4975 or 4980B of the Code. (D) Each “employee benefit plan” established
or maintained by the Company or any of its Subsidiaries or ERISA Affiliates that is intended to be qualified under Section 401(a)
of the Code is so qualified and, to the knowledge of the Company, nothing has occurred, whether by action or failure to act, which
would cause the loss of such qualification. The execution of this Agreement, or consummation of the Offering does not constitute
a triggering event under any employee benefit plan or any other employment contract, whether or not legally enforceable, which
(either alone or upon the occurrence of any additional or subsequent event) will or may result in any payment (of severance pay
or otherwise), acceleration, increase in vesting, or increase in benefits to any current or former participant, employee or director
of the Company or any Subsidiary other than an event that is not material to the financial condition or business of the Company
and the Subsidiaries, taken as a whole.
2.37 Compliance
with Laws. Except as otherwise disclosed in the Registration Statement, Pricing Disclosure Package and Prospectus and as could
not, individually or in the aggregate, be expected to result in a Material Adverse Change, each of the Company and each Subsidiary:
(A) has operated and currently operates its business in substantial compliance with all statutes, rules, or regulations 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 manufactured or distributed by the Company or any Subsidiary
(“Applicable Laws”); (B) has not received any written notices, statements or other correspondence or notice
from the HHS or any foreign, state or local Governmental Entity performing functions similar to the HHS or any other Governmental
Entity alleging or asserting noncompliance with any Applicable Laws or any Authorizations; (C) possesses all material Authorizations
and such Authorizations are valid and in full force and effect and are not in material violation of any term of any such Authorizations;
(D) has not received written notice of any claim, action, suit, proceeding, hearing, enforcement, investigation, arbitration or
other action from any Governmental Entity or third party alleging that any product operation or activity is in violation of any
Applicable Laws or Authorizations and has no knowledge that any such governmental authority or third party is threatening any such
claim, litigation, arbitration, action, suit, investigation or proceeding; (E) has not received written notice that any Governmental
Entity has taken, is taking or intends to take action to limit, suspend, modify or revoke any Authorizations and has no knowledge
that any such governmental authority is threatening such action; and (F) has filed, obtained, maintained or submitted all material
reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments as required by any
Applicable Laws or Authorizations and that all such reports, documents, forms, notices, applications, records, claims, submissions
and supplements or amendments were complete and correct in all material respects on the date filed (or were corrected or supplemented
by a subsequent submission).
2.38 Smaller
Reporting Company. As of the time of filing of the Registration Statement, the Company was a “smaller reporting
company,” as defined in Rule 12b-2 of the Exchange Act Regulations.
2.39 Industry
Data. The statistical and market-related data included in each of the Registration Statement, the Pricing Disclosure
Package and the Prospectus are based on or derived from sources that the Company reasonably and in good faith believes are reliable
and accurate or represent the Company’s good faith estimates that are made on the basis of data derived from such sources.
2.40 Margin
Securities. Neither the Company nor any Subsidiary owns any “margin securities” as that term is defined in Regulation
U of the Board of Governors of the Federal Reserve System (the “Federal Reserve Board”), and none of the proceeds
of the Offering will be used, directly or indirectly, for the purpose of purchasing or carrying any margin security, for the purpose
of reducing or retiring any indebtedness which was originally incurred to purchase or carry any margin security or for any other
purpose which might cause any of the shares of Common Stock to be considered a “purpose credit” within the meanings
of Regulation T, U or X of the Federal Reserve Board.
2.41 Integration.
Neither the Company, nor any of its Subsidiaries or affiliates, nor any person acting on its or their behalf has, directly or indirectly,
made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would cause the
Offering to be integrated with prior offerings by the Company for purposes of the Securities Act that would require the registration
of any such securities under the Securities Act.
2.42 Title
to Real and Personal Property. Each of the Company and each Subsidiary has good and marketable title in fee simple to, or have
valid rights to lease or otherwise use, all items of real or personal property that are material to the business of the Company
and each Subsidiary, free and clear of all liens, encumbrances, security interests, claims and defects that do not, singularly
or in the aggregate, materially affect the business of the Company and the Subsidiaries, taken as a whole, and do not interfere
with the use made of such property by the Company or such Subsidiary; and all of the leases and subleases material to the business
of the Company and each Subsidiary, and under which the Company or any Subsidiary holds properties described in the Registration
Statement, the Pricing Disclosure Package and the Prospectus, are, to the Company’s knowledge, in full force and effect,
and neither the Company nor any Subsidiary has received any notice of any material claim of any sort that have been asserted by
anyone adverse to the rights of the Company or any Subsidiary under any of the leases or subleases mentioned above, or affecting
or questioning the rights of the Company or any Subsidiary to the continued possession of the leased or subleased premises under
any such lease or sublease, which would result in a Material Adverse Change.
2.43 Confidentiality
and Non-Competitions. To the Company’s knowledge, no director, officer, key employee or consultant of the Company or
any Subsidiary is subject to any confidentiality, non-disclosure, non-competition agreement or non-solicitation agreement with
any employer or prior employer that could materially affect his ability to be and act in
his respective capacity of the Company or such Subsidiary or be expected to result in a Material Adverse Change.
2.44 Corporate
Records. The minute books of the Company have been made available to the Underwriters and counsel for the Underwriters, and
such books (i) contain a complete and accurate summary of all material meetings and actions of the board of directors (including
each board committee) and stockholders of the Company, and (ii) reflect all material transactions referred to in such minutes.
2.45 Testing-the-Waters
Communications. Neither the Company nor any Subsidiary has (i) alone engaged in any Testing-the-Waters Communications, other
than Testing-the-Waters Communications with the written consent of the Representative and with entities that are qualified institutional
buyers within the meaning of Rule 144A under the Securities Act or institutions that are accredited investors within the meaning
of Rule 501 under the Securities Act and (ii) authorized anyone other than the Representative to engage in Testing-the-Waters Communications.
The Company confirms that the Representative has been authorized to act on its behalf in undertaking Testing-the-Waters Communications.
Neither the Company nor any Subsidiary has distributed any Written Testing-the-Waters Communications. “Written Testing-the-Waters
Communication” means any Testing-the-Waters Communication that is a written communication within the meaning of Rule
405 under the Securities Act.
2.46 Electronic
Road Show. The Company has made available a Bona Fide Electronic Road Show in compliance with Rule 433(d)(8)(ii) of the Securities
Act Regulations such that no filing of any “road show” (as defined in Rule 433(h) of the Securities Act Regulations)
is required in connection with the Offering.
3. Covenants
of the Company. The Company covenants and agrees as follows:
3.1 Amendments
to Registration Statement. The Company shall deliver to the Representative, prior to filing, any amendment or supplement to
the Registration Statement or Prospectus proposed to be filed after the Effective Date and not file any such amendment or supplement
to which the Representative shall reasonably object in writing.
3.2 Federal
Securities Laws.
3.2.1 Compliance.
The Company, subject to Section 3.2.2, shall comply with the requirements of Rule 430A of the Securities Act Regulations, and will
notify the Representative promptly, and confirm the notice in writing, (i) when any post-effective amendment to the Registration
Statement shall become effective or any amendment or supplement to the Prospectus shall have been filed; (ii) of the receipt
of any comments from the Commission; (iii) of any request by the Commission for any amendment to the Registration Statement
or any amendment or supplement to the Prospectus or for additional information; (iv) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment or of any order preventing
or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Public
Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes
or of any examination pursuant to Section 8(d) or 8(e) of the Securities Act concerning the Registration Statement; and (v) if
the Company becomes the subject of a proceeding under Section 8A of the Securities Act in connection with the Offering of
the Public Securities. The Company shall effect all filings required under Rule 424(b) of the Securities Act Regulations, in the
manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and shall take such steps as it
deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for
filing by the Commission and, in the event that it was not, it will promptly file such prospectus. The Company shall use its best
efforts to prevent the issuance of any stop order, prevention or suspension and, if any such order is issued, to obtain the lifting
thereof at the earliest possible moment.
3.2.2 Continued
Compliance. The Company shall comply with the Securities Act, the Securities Act Regulations, the Exchange Act and the Exchange
Act Regulations so as to permit the completion of the distribution of the Public Securities as contemplated in this Agreement and
in the Registration Statement, the Pricing Disclosure Package and the Prospectus. If at any time when a prospectus relating to
the Public Securities is (or, but for the exception afforded by Rule 172 of the Securities Act Regulations (“Rule 172”),
would be) required by the Securities Act to be delivered in connection with sales of the Public Securities, any event shall occur
or condition shall exist as a result of which it is necessary, in the opinion of counsel for the Underwriters or for the Company,
to (i) amend the Registration Statement in order that the Registration Statement will not include an untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(ii) amend or supplement the Pricing Disclosure Package or the Prospectus in order that the Pricing Disclosure Package or
the Prospectus, as the case may be, 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 not misleading in the light of the circumstances existing at the time it is delivered to
a purchaser or (iii) amend the Registration Statement or amend or supplement the Pricing Disclosure Package or the Prospectus,
as the case may be, in order to comply with the requirements of the Securities Act or the Securities Act Regulations, the Company
will promptly (A) give the Representative notice of such event; (B) prepare any amendment or supplement as may be necessary
to correct such statement or omission or to make the Registration Statement, the Pricing Disclosure Package or the Prospectus comply
with such requirements and, a reasonable amount of time prior to any proposed filing or use, furnish the Representative with copies
of any such amendment or supplement and (C) file with the Commission any such amendment or supplement; provided that the Company
shall not file or use any such amendment or supplement to which the Representative or counsel for the Underwriters shall reasonably
object. The Company will furnish to the Underwriters such number of copies of such amendment or supplement as the Underwriters
may reasonably request. The Company has given the Representative notice of any filings made pursuant to the Exchange Act or the
Exchange Act Regulations within 48 hours prior to the Applicable Time; the Company will give the Representative notice of its intention
to make any such filing from the Applicable Time to the Closing Date and will furnish the Representative with copies of any such
documents a reasonable amount of time prior to such proposed filing, as the case may be, and will not file or use any such document
to which the Representative or counsel for the Underwriters shall reasonably object.
3.2.3 Exchange
Act Registration. For a period of three (3) years after the date of this Agreement, the Company shall use commercially reasonable
efforts to maintain the registration of the Common Stock under the Exchange Act, provided that such provision shall not prevent
a sale, merger or similar transaction involving the Company.
3.2.4 Free
Writing Prospectuses. The Company agrees that, unless it obtains the prior written consent of the Representative, it shall
not make any offer relating to the Public Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise
constitute a “free writing prospectus,” or a portion thereof, required to be filed by the Company with the Commission
or retained by the Company under Rule 433; provided that the Representative shall be deemed to have consented to each Issuer General
Use Free Writing Prospectus hereto and any “road show that is a written communication” within the meaning of Rule 433(d)(8)(i)
that has been reviewed by the Representative. The Company represents that it has treated or agrees that it will treat each such
free writing prospectus consented to, or deemed consented to, by the Underwriters as an “issuer free writing prospectus,”
as defined in Rule 433, and that it has complied and will comply with the applicable requirements of Rule 433 with respect thereto,
including timely filing with the Commission where required, legending and record keeping. If at any time following issuance of
an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing
Prospectus conflicted or would conflict with the information contained in the Registration Statement or included or would include
an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the
Underwriters and will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct
such conflict, untrue statement or omission.
3.3 Delivery
to the Underwriters of Registration Statements. The Company has delivered or made available or shall deliver or make available
to the Representative and counsel for the Representative, without charge, signed copies of the Registration Statement as originally
filed and each amendment thereto (including exhibits filed therewith) and signed copies of all consents and certificates of experts,
and will also deliver to the Underwriters, without charge, a conformed copy of the Registration Statement as originally filed and
each amendment thereto (without exhibits) for each of the Underwriters. The copies of the Registration Statement and each amendment
thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by Regulation S-T.
3.4 Delivery
to the Underwriters of Prospectuses. The Company has delivered or made available or will deliver or make available to each
Underwriter, without charge, as many copies of each Preliminary Prospectus as such Underwriter reasonably requested, and the Company
hereby consents to the use of such copies for purposes permitted by the Securities Act. The Company will furnish to each Underwriter,
without charge, during the period when a prospectus relating to the Public Securities is (or, but for the exception afforded by
Rule 172 of the Securities Act Regulations, would be) required to be delivered under the Securities Act, such number of copies
of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request. The Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with
the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
3.5 Effectiveness
and Events Requiring Notice to the Representative. The Company shall use commercially reasonable efforts to cause the Registration
Statement to remain effective with a current prospectus for at least nine (9) months after the Applicable Time, and shall notify
the Representative immediately and confirm the notice in writing: (i) of the effectiveness of the Registration Statement and
any amendment thereto; (ii) of the issuance by the Commission of any stop order or of the initiation, or the threatening,
of any proceeding for that purpose; (iii) of the issuance by any state securities commission of any proceedings for the suspension
of the qualification of the Public Securities, the Offered Shares, the Preferred Shares, the Warrants, the Conversion Shares and
the Warrant Shares for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that
purpose; (iv) of the mailing and delivery to the Commission for filing of any amendment or supplement to the Registration
Statement or Prospectus; (v) of the receipt of any comments or request for any additional information from the Commission;
and (vi) of the happening of any event during the period described in this Section 3.5 that, in the judgment of the Company,
makes any statement of a material fact made in the Registration Statement, the Pricing Disclosure Package or the Prospectus untrue
or that requires the making of any changes in (a) the Registration Statement in order to make the statements therein not misleading,
or (b) in the Pricing Disclosure Package or the Prospectus in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. If the Commission or any state securities commission shall enter a stop order or suspend
such qualification at any time, the Company shall make every reasonable effort to obtain promptly the lifting of such order.
3.6 Financial
Public Relations Firm. As of the Effective Date, the Company shall have retained a financial public relations firm reasonably
acceptable to the Representative and the Company.
3.7 Payment
of Expenses.
3.7.1 General
Expenses Related to the Offering. The Company hereby agrees to pay on each of the Closing Date and the Option Closing Date,
if any, to the extent not paid at the Closing Date, all expenses incident to the performance of the obligations of the Company
under this Agreement, including, but not limited to: (a) all filing fees and communication expenses relating to the registration
of Public Securities, the Offered Shares, the Preferred Shares, the Warrants, the Conversion Shares and the Warrant Shares to be
issued and sold in the Offering with the Commission; (b) all filing fees associated with the review of the Offering by FINRA; (c)
all fees and expenses relating to the listing of the Offered Shares, the Conversion Shares and Warrant Shares on the NasdaqCM and
on such other stock exchanges as the Company and the Representative together determine; (d) all fees, expenses and disbursements
relating to background checks of the Company’s officers and directors not to exceed $5,000 per individual and $15,000 in
the aggregate; (e) all fees, expenses and disbursements relating to the registration or qualification of the Public Securities,
the Offered Shares, the Preferred Shares, the Warrants, the Conversion Shares and the Warrant Shares under the “blue sky”
securities laws of such states and other jurisdictions as the Representative may reasonably designate (including, without limitation,
all filing and registration fees, and the reasonable fees and disbursements of “blue sky” counsel, it being agreed
that such fees and expenses will be limited as follows: (i) if the Offering is commenced on the Nasdaq Global Market, Nasdaq Global
Select Market or NYSE AMEX, the Company will make a payment of $5,000 to such counsel at Closing or (ii) if the Offering is commenced
on the NasdaqCM or Over-the-Counter Bulletin Board, the Company will make a payment of $15,000 to such counsel upon the commencement
of “blue sky” work by such counsel and an additional payment of $5,000 at Closing); (f) all fees, expenses and disbursements
relating to the registration, qualification or exemption of the Public Securities, the Offered Shares, the Preferred Shares, the
Warrants, the Conversion Shares and Warrant Shares under the securities laws of such foreign jurisdictions as the Representative
may reasonably designate; (g) the costs of all mailing and printing of the underwriting documents (including, without limitation,
the Underwriting Agreement, any Blue Sky Surveys and, if appropriate, any Agreement Among Underwriters, Selected Dealers’
Agreement, Underwriters’ Questionnaire and Power of Attorney), Registration Statements, Prospectuses and all amendments,
supplements and exhibits thereto and as many preliminary and final Prospectuses as the Representative may reasonably deem necessary;
(h) the costs and expenses of the public relations firm referred to in Section 3.8 hereof; (i) the costs of preparing, printing
and delivering certificates representing the Public Securities, the Offered Shares, the Preferred Shares, the Warrants, the Conversion
Shares and the Warrant Shares; (j) fees and expenses of the Transfer Agent for the shares of the Public Securities; (k) stock transfer
and/or stamp taxes, if any, payable upon the transfer of securities from the Company to the Underwriters; (l) the costs associated
with post-Closing advertising of the Offering in the national editions of The Wall Street Journal and The New York Times;
(m) the costs associated with bound volumes of the public offering materials as well as commemorative mementos and lucite tombstones
not to exceed $5,000, each of which the Company or its designee will provide within a reasonable time after the Closing in such
quantities as the Representative may reasonably request; (n) the fees and expenses of the Company’s accountants; (o) the
fees and expenses of the Company’s legal counsel and other agents and representatives; (p) the fees and expenses of the Representative’s
legal counsel not to exceed $40,000; (q) the $25,000 cost associated with the Underwriters’ use of Ipreo’s book building,
prospectus tracking and compliance software for the Offering; and (r) up to $20,000 of the Underwriters’ actual accountable
“road show” expenses for the offering. The Representative may deduct from the net proceeds of the Offering payable
to the Company on the Closing Date, or the Option Closing Date, if any, the expenses set forth herein to be paid by the Company
to the Underwriters, less the Advance (as such term is defined in Section 8.3 hereof) provided, however, that in the event that
the Offering is terminated, the Company agrees to reimburse the Underwriters pursuant to Section 8.3 hereof. All expenses to be
reimbursed shall be so requested in writing, with evidence of incurrence of same.
3.7.2 Non-accountable
Expenses. The Company further agrees that, in addition to the expenses payable pursuant to Section 3.10.1, on the Closing Date
it shall pay to the Representative, by deduction from the net proceeds of the Offering contemplated herein, a non-accountable expense
allowance equal to one percent (1%) of the gross proceeds received by the Company from the sale of the Firm Securities.
3.8 Application
of Net Proceeds. The Company shall apply the net proceeds from the Offering received by it in a manner consistent with the
application thereof described under the caption “Use of Proceeds” in the Registration Statement, the Pricing Disclosure
Package and the Prospectus.
3.9 Delivery
of Earnings Statements to Security Holders. The Company shall make generally available to its security holders as soon as practicable,
but not later than the first day of the fifteenth (15th) full calendar month following the Effective Date, an earnings statement
(which need not be certified by an independent registered public accounting firm unless required by the Securities Act or the Securities
Act Regulations, but which shall satisfy the provisions of Rule 158(a) under Section 11(a) of the Securities Act) covering a period
of at least twelve (12) consecutive months beginning after the Effective Date, to the extent required by the Securities Act and/or
the Exchange Act.
3.10 Stabilization.
Neither the Company nor, to its knowledge, any of its employees, directors or shareholders (without the consent of the Representative)
has taken or shall take, directly or indirectly, any action designed to or that has constituted or that might reasonably be expected
to cause or result in, under Regulation M of 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 Public Securities.
3.11 Internal
Controls. Except to the extent disclosed in the Registration Statement, Pricing Disclosure Package and Prospectus, the Company
shall maintain a system of internal accounting controls sufficient to provide reasonable assurances that: (i) transactions
are executed in accordance with management’s general or specific authorization; (ii) transactions are recorded as necessary
in order to permit preparation of financial statements in accordance with GAAP and to maintain accountability for assets; (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 existing assets at reasonable intervals and appropriate action is taken with respect
to any differences.
3.12 Accountants.
As of the Effective Date, the Company shall retain an independent registered public accounting firm, as required by the Securities
Act and the Regulations and the Public Company Accounting Oversight Board, reasonably acceptable to the Representative, and the
Company shall continue to retain a nationally recognized independent registered public accounting firm for a period of at least
three (3) years after the Effective Date; provided that such provision shall not prevent a sale, merger or similar transaction
involving the Company. The Representative acknowledges that the Auditor is acceptable to the Representative.
3.13 FINRA.
For a period of 90 days from the later of the Closing Date or the Option Closing Date, the Company shall advise the Representative
(who shall make an appropriate filing with FINRA) if it is or becomes aware that (i) any officer or director of the Company, (ii)
any beneficial owner of 5% or more of any class of the Company’s securities or (iii) any beneficial owner of the Company’s
unregistered equity securities which were acquired during the 180 days immediately preceding the filing of the Registration Statement
is or becomes an affiliate or associated person of a FINRA member participating in the Offering (as determined in accordance with
the rules and regulations of FINRA).
3.14 No
Fiduciary Duties. The Company acknowledges and agrees that the Underwriters’ responsibility to the Company is solely
contractual in nature and that none of the Underwriters or their affiliates or any selling agent shall be deemed to be acting in
a fiduciary capacity, or otherwise owes any fiduciary duty to the Company or any of its affiliates in connection with the Offering
and the other transactions contemplated by this Agreement.
3.15 Company
Lock-Up Agreements.
3.15.1 Restriction
on Sales of Capital Stock. The Company, on behalf of itself and any Subsidiary or successor entity of the Company, agrees that,
without the prior written consent of the Representative, it will not, during the period commencing on the date of this Agreement
and ending on the 90th day thereafter (the “Lock-Up Period”), (i) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase,
lend, or otherwise transfer or dispose of, directly or indirectly, any shares of capital stock of the Company or any securities
convertible into or exercisable or exchangeable for shares of capital stock of the Company; (ii) file or cause to be filed any
registration statement with the Commission relating to the offering of any shares of capital stock of the Company or any securities
convertible into or exercisable or exchangeable for shares of capital stock of the Company other than a registration statement
on Form S-4 or S-8; or (iii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of capital stock of the Company, whether any such transaction described in clause (i), (ii)
or (iii) above is to be settled by delivery of shares of capital stock of the Company or such other securities, in cash or otherwise.
The restrictions contained
in this Section 3.15.1 shall not apply to (i) the Public Securities to be sold hereunder, the Warrants and the Preferred Shares
included in the Public Securities, the Conversion Shares or the Warrant Shares, (ii) the issuance by the Company of shares of Common
Stock upon the exercise of a stock option or warrant or the conversion of a security outstanding on the date hereof, which is disclosed
in the Registration Statement, Pricing Disclosure Package and Prospectus, (iii) the issuance by the Company of any security under
any equity compensation plan of the Company, (iv) the issuance by the Company of shares of Common Stock, or securities exercisable
or convertible into shares of Common Stock, in the connection with mergers, acquisitions or joint ventures, (v) the issuance by
the Company of shares of Common Stock to consultants in the Company’s ordinary course of business and not for capital raising
transactions and (vi) any issuance of securities disclosed in the Registration Statement, the Pricing Disclosure Package or the
Prospectus.
3.15.2 Restriction
on Continuous Offerings. Notwithstanding the restrictions contained in Section 3.15.1, the Company, on behalf of itself and
any successor entity, agrees that, without the prior written consent of the Representative, it will not, for a period of 12 months
after the date of this Agreement, directly or indirectly in any “at-the-market” or continuous equity transaction, offer
to sell, sell, contract to sell, grant any option to sell or otherwise dispose of shares of capital stock of the Company or any
securities convertible into or exercisable or exchangeable for shares of capital stock of the Company.
3.16 Release
of D&O Lock-up Period. If the Representative, in its sole discretion, agrees to release or waive the restrictions set forth
in the Lock-Up Agreement described in Section 2.26 hereof for an officer or director of the Company and provide the Company with
notice of the impending release or waiver at least three (3) Business Days before the effective date of the release or waiver,
the Company agrees to announce the impending release or waiver by a press release substantially in the form of Exhibit C
hereto through a major news service at least two (2) Business Days before the effective date of the release or waiver.
3.17 Blue
Sky Qualifications. The Company shall use its best efforts, in cooperation with the Underwriters, if necessary, to qualify
the Public Securities, the Preferred Shares, the Warrants, the Conversion Shares and the Warrant Shares for offering and sale under
the applicable securities laws of such states and other jurisdictions (domestic or foreign) as the Representative may designate
and to maintain such qualifications in effect so long as required to complete the distribution of the Public Securities, the Preferred
Shares and the Warrants; provided, however, that the Company shall not be obligated to file any general consent to service of process
or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject
itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject.
3.18 Reporting
Requirements. The Company, during the period when a prospectus relating to the Public Securities is (or, but for the exception
afforded by Rule 172, would be) required to be delivered under the Securities Act, will file all documents required to be filed
with the Commission pursuant to the Exchange Act within the time periods required by the Exchange Act and Exchange Act Regulations.
Additionally, the Company shall report the use of proceeds from the issuance of the Public Securities as may be required under
Rule 463 under the Securities Act Regulations.
3.19 Press
Releases. During the Option Period, the Company shall not issue any press release or other communication directly or indirectly
or hold any press conference with respect to the Company, its condition, financial or otherwise, or earnings, business affairs
or business prospects (except for routine oral marketing communications in the ordinary course of business and consistent with
the past practices of the Company and of which the Representative is notified), without the prior written consent of the Representative,
which consent shall not be unreasonably withheld, unless in the judgment of the Company and its counsel, and after notification
to the Representative, such press release or communication is required by law.
3.20 Sarbanes-Oxley.
The Company shall at all times comply with all applicable provisions of the Sarbanes-Oxley Act in effect from time to time, provided
that such provision shall not prevent a sale, merger or similar transaction involving the Company.
3.21 IRS
Forms. If requested by the Representative, the Company shall deliver to each Underwriter (or its agent), prior to or at the
Closing Date, a properly completed and executed Internal Revenue Service (“IRS”) Form W-9 or an IRS Form W-8,
as appropriate, together with all required attachments to such form.
3.22 Form
8-K. On or prior to November 17, 2015, the Company shall file a Form 8-K containing the information required by the Nasdaq
Stock Market for the Company to regain certification with the Nasdaq Stock Market Listing Rule 5550(b) and (b) on or prior to the
fourth (4th) business day following the closing thereof, the Company shall file a Form 8-K containing the disclosures
required by Form 8-K relating to the Medac Asset Acquisition (as defined in the Registration Statement, Pricing Disclosure Package
and Prospectus).
4. Conditions
of Underwriters’ Obligations. The obligations of the Underwriters to purchase and pay for the Public Securities, as provided
herein, shall be subject to (i) the continuing accuracy of the representations and warranties of the Company as of the date hereof
and as of each of the Closing Date and the Option Closing Date, if any; (ii) the accuracy of the statements of officers of the
Company made pursuant to the provisions hereof; (iii) the performance by the Company of its obligations hereunder; and (iv) the
following conditions:
4.1 Regulatory
Matters.
4.1.1 Effectiveness
of Registration Statement; Rule 430A Information. The Registration Statement shall have become effective not later than 5:30
p.m., Eastern time, on the date of this Agreement or such later date and time as shall be consented to in writing by you, and,
at each of the Closing Date and any Option Closing Date, no stop order suspending the effectiveness of the Registration Statement
or any post-effective amendment thereto shall have been issued under the Securities Act, no order preventing or suspending the
use of any Preliminary Prospectus or the Prospectus shall have been issued and no proceedings for any of those purposes shall have
been instituted or are pending or, to the Company’s knowledge, contemplated by the Commission. The Company has complied with
each request (if any) from the Commission for additional information. A prospectus containing the Rule 430A Information shall have
been filed with the Commission in the manner and within the time frame required by Rule 424(b) under the Securities Act Regulations
(without reliance on Rule 424(b)(8)) or a post-effective amendment providing such information shall have been filed with, and declared
effective by, the Commission in accordance with the requirements of Rule 430A under the Securities Act Regulations.
4.1.2 FINRA
Clearance. On or before the Effective Date, the Representative shall have received clearance from FINRA as to the amount of
compensation allowable or payable to the Underwriters as described in the Registration Statement.
4.1.3 NasdaqCM
Stock Market Clearance. On or before the Closing Date, the Firm Shares, the Conversion Shares and Warrant Shares shall have
been approved for listing on the NasdaqCM, subject only to official notice of issuance. On the any Option Closing Date, such Additional
Shares shall have been approved for listing on the NasdaqCM, subject only to official notice of issuance.
4.2 Company
Counsel Matters.
4.2.1 Closing
Date Opinion of Counsel to the Company. On the Closing Date, the Representative shall have received:
(i) the
favorable opinion of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, and (ii) a written statement providing certain “10b-5”
negative assurances, dated the Closing Date and addressed to the Representative, substantially in a form reasonably acceptable
to the Representative; and
(ii) Adam
S. Winger, General Counsel to the Company, dated the Closing Date and addressed to the Representative, substantially in a form
reasonably acceptable to the Representative.
4.2.2
Option Closing Date Opinions of Counsel. On the Option Closing Date, if any, the Representative shall have received the favorable
opinions of each counsel listed in Sections 4.2.1 and 4.2.2, dated the Option Closing Date, addressed to the Representative and
in form and substance reasonably satisfactory to the Representative, confirming as of the Option Closing Date, the statements made
by such counsels in their respective opinions delivered on the Closing Date.
4.2.3 Opinion
of Representative Counsel. On the Closing Date and the Option Closing Date, if any, the Representative shall have received
from Representative counsel, such opinion or opinions and negative assurances statement, dated the Closing Date and any Option
Closing Date (if such date is other than the Closing Date) addressed to the Underwriters, with respect to such matters as the Representative
may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to
pass upon such matters.
4.2.4 Reliance.
In rendering such opinions, such counsel may rely: (i) as to matters involving the application of laws other than the laws
of the United States and jurisdictions in which they are admitted, to the extent such counsel deems proper and to the extent specified
in such opinion, if at all, upon an opinion or opinions (in form and substance reasonably satisfactory to the Representative) of
other counsel reasonably acceptable to the Representative, familiar with the applicable laws; and (ii) as to matters of fact,
to the extent they deem proper, on certificates or other written statements of officers of the Company and officers of departments
of various jurisdictions having custody of documents respecting the corporate existence or good standing of the Company, provided
that copies of any such statements or certificates shall be delivered to Representative Counsel if requested.
4.3 Comfort
Letters.
4.3.1 Cold
Comfort Letter. At the time this Agreement is executed you shall have received a cold comfort letter containing statements
and information of the type customarily included in accountants’ comfort letters with respect to the financial statements
and certain financial information contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus, addressed
to the Representative and in form and substance satisfactory in all respects to you and to Representative Counsel from the Auditor,
dated as of the date of this Agreement.
4.3.2 Bring-down
Comfort Letter. At each of the Closing Date and the Option Closing Date, if any, the Representative shall have received from
the Auditor a letter, dated as of the Closing Date or the Option Closing Date, as applicable, to the effect that the Auditor reaffirms
the statements made in the letter furnished pursuant to Section 4.3.1, except that the specified date referred to shall be a date
not more than three (3) Business Days prior to the Closing Date or the Option Closing Date, as applicable.
4.4 Officers’
Certificates.
4.4.1 Officers’
Certificate. The Company shall have furnished to the Representative a certificate, dated the Closing Date and any Option Closing
Date (if such date is other than the Closing Date), of its Chief Executive Officer and its Chief Financial Officer stating that
(i) such officers have carefully examined the Registration Statement, the Pricing Disclosure Package, any Issuer Free Writing Prospectus
and the Prospectus and, in their opinion, the Registration Statement and each amendment thereto, as of the Applicable Time and
as of the date of this Agreement and as of the Closing Date (or any Option Closing Date if such date is other than the Closing
Date) did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, and the Pricing Disclosure Package, as of the Applicable Time and as
of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), any Issuer Free Writing Prospectus
as of its date and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), the Prospectus
and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue
statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the
light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Registration Statement,
no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement, the Pricing
Disclosure Package or the Prospectus, (iii) to the best of their knowledge after reasonable investigation, as of the Closing Date
(or any Option Closing Date if such date is other than the Closing Date), the representations and warranties of the Company in
this Agreement are true and correct in all material respects (except for those representations and warranties qualified as to materiality,
which shall be true and correct in all respects and except for those representations and warranties which refer to facts existing
at a specific date, which shall be true and correct as of such date) and the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date (or any Option Closing Date if
such date is other than the Closing Date), and (iv) there has not been, subsequent to the date of the most recent audited financial
statements included or incorporated by reference in the Pricing Disclosure Package, a Material Adverse Change, except as set forth
in the Prospectus.
4.4.2 Secretary’s
Certificate. At each of the Closing Date and the Option Closing Date, if any, the Representative shall have received a certificate
of the Company signed by the Secretary of the Company, dated the Closing Date or the Option Date, as the case may be, respectively,
certifying: (i) that each of the Charter and by-laws is true and complete, has not been modified and is in full force and
effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and
effect and have not been modified; (iii) as to the accuracy and completeness of all correspondence between the Company or its counsel
and the Commission; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate
shall be attached to such certificate.
4.5 No
Material Changes. Prior to and on each of the Closing Date and each Option Closing Date, if any: (i) there shall have
been no Material Adverse Change in the business activities, financial or otherwise, of the Company and the Subsidiaries, taken
as a whole, from the latest dates as of which such condition is set forth in the Registration Statement, the Pricing Disclosure
Package and the Prospectus and no material change in the capital stock or debt of the Company; (ii) no action, suit or proceeding,
at law or in equity, shall have been pending or threatened against the Company, any Subsidiary or any Insider before or by any
court or federal or state commission, board or other administrative agency wherein an unfavorable decision, ruling or finding may
reasonably be expected to cause a Material Adverse Change, except as set forth in the Registration Statement, the Pricing Disclosure
Package and the Prospectus; (iii) no stop order shall have been issued under the Securities Act and no proceedings therefor
shall have been initiated or threatened by the Commission; (iv) no action shall have been taken and no law, statute, rule, regulation
or order shall have been enacted, adopted or issued by any Governmental Entity which would prevent the issuance or sale of the
Public Securities or may reasonably be expected to cause a Material Adverse Change, except as set forth in the Registration Statement,
the Pricing Disclosure Package and the Prospectus; (v) no injunction, restraining order or order of any other nature by any federal
or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Public Securities
or materially or may reasonably be expected to cause a Material Adverse Change, except as set forth in the Registration Statement,
the Pricing Disclosure Package and the Prospectus, and (vi) the Registration Statement, the Pricing Disclosure Package and
the Prospectus and any amendments or supplements thereto shall contain all material statements which are required to be stated
therein in accordance with the Securities Act and the Securities Act Regulations and shall conform in all material respects to
the requirements of the Securities Act and the Securities Act Regulations, and neither the Registration Statement, the Pricing
Disclosure Package, the Prospectus nor any Issuer Free Writing Prospectus nor any amendment or supplement thereto shall contain
any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were made, not misleading.
4.6 No
Material Misstatement or Omission. The Underwriters shall not have discovered and disclosed to the Company on or prior to the
Closing Date and any Option Closing Date that the Registration Statement or any amendment or supplement thereto contains an untrue
statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the
opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading,
or that the Registration Statement, Pricing Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus or any amendment
or supplement thereto contains an untrue statement of fact which, in the opinion of such counsel, is material or omits to state
any fact which, in the opinion of such counsel, is material and is necessary in order to make the statements, in the light of the
circumstances under which they were made, not misleading.
4.7 Corporate
Proceedings. All corporate proceedings and other legal matters incident to the authorization, form and validity of each of
this Agreement, the Certificate of Designation, the Warrant Agreement, the Public Securities, and the Securities underlying the
Public Securities, the Registration Statement, the Pricing Disclosure Package, each Issuer Free Writing Prospectus, if any, and
the Prospectus and all other legal matters relating to this Agreement and the transactions contemplated hereby and thereby shall
be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such
counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
4.8 Delivery
of Effective Date Agreements. On or before the Effective Date, the Company shall have delivered to the Representative executed
copies of the Lock-Up Agreements from each of the persons listed in Schedule 3 hereto.
4.9 Delivery
of Warrant Agreement. On the Closing Date, the Company shall have delivered to the Representative executed copies of the Warrant
Agreements in such names and denominations as shall be provided to the Company pursuant to Section 1.1.2(i).
4.10 Additional
Documents. At the Closing Date and at each Option Closing Date (if any), Representative Counsel shall have been furnished with
such documents and opinions as they may require for the purpose of enabling Representative Counsel to deliver an opinion to the
Underwriters, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Public Securities,
the Offered Shares, the Preferred Shares and the Warrants as herein contemplated shall be satisfactory in form and substance to
the Representative and Representative Counsel.
5. Indemnification.
5.1 Indemnification
of the Underwriters.
5.1.1 General.
Subject to the conditions set forth below, the Company agrees to indemnify and hold harmless each Underwriter, its affiliates and
each of its and their respective directors, officers, members, employees, representatives and agents and each person, if any, who
controls any such Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively
the “Underwriter Indemnified Parties,” and each an “Underwriter Indemnified Party”), against
any and all loss, liability, claim, damage and expense whatsoever (including but not limited to any and all legal or other expenses
reasonably incurred in investigating, preparing or defending against any litigation, commenced or threatened, or any claim whatsoever,
whether arising out of any action between any of the Underwriter Indemnified Parties and the Company or between any of the Underwriter
Indemnified Parties and any third party, or otherwise) to which they or any of them may become subject under the Securities Act,
the Exchange Act or any other statute or at common law or otherwise or under the laws of foreign countries, arising out of or based
upon any untrue statement or alleged untrue statement of a material fact contained in, or the omission or alleged omission to state
a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under
which they were made, not misleading, in, (i) the Registration Statement, the Pricing Disclosure Package, the Preliminary Prospectus,
the Prospectus, or in any Issuer Free Writing Prospectus or in any Written Testing-the-Waters Communication (as from time to time
each may be amended and supplemented); (ii) any materials or information provided to investors by, or with the approval of, the
Company in connection with the marketing of the Offering, including any “road show” or investor presentations made
to investors by the Company (whether in person or electronically); or (iii) any application or other document or written communication
(in this Section 5, collectively called “application”) executed by the Company or approved in writing by the Company
in any jurisdiction in order to qualify the Public Securities, the Offered Shares, the Preferred Shares, the Warrants, the Conversion
Shares and the Warrant Shares under the securities laws thereof or filed with the Commission, any state securities commission or
agency, the Exchange or any other national securities exchange; unless such statement or omission was made in reliance upon, and
in conformity with, the Underwriters’ Information. With respect to any untrue statement or omission or alleged untrue statement
or omission made in the Registration Statement, Pricing Disclosure Package or Prospectus, the indemnity agreement contained in
this Section 5.1.1 shall not inure to the benefit of any Underwriter Indemnified Party to the extent that any loss, liability,
claim, damage or expense of such Underwriter Indemnified Party results from the fact that a copy of the Prospectus was not given
or sent to the person asserting any such loss, liability, claim or damage at or prior to the written confirmation of sale of the
Public Securities to such person as required by the Securities Act and the Securities Act Regulations, and if the untrue statement
or omission has been corrected in the Prospectus, unless such failure to deliver the Prospectus was a result of non-compliance
by the Company with its obligations under Section 3.3 hereof.
5.1.2 Procedure.
If any action is brought against an Underwriter Indemnified Party in respect of which indemnity may be sought against the Company
pursuant to Section 5.1.1, such Underwriter Indemnified Party shall promptly notify the Company in writing of the institution of
such action and the Company shall assume the defense of such action, including the employment and reasonable fees of counsel (subject
to the reasonable approval of such Underwriter Indemnified Party) and payment of actual and reasonable expenses. Such Underwriter
Indemnified Party shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel
shall be at the expense of such Underwriter Indemnified Party unless (i) the employment of such counsel at the expense of the Company
shall have been authorized in writing by the Company in connection with the defense of such action, or (ii) the Company shall not
have employed counsel to have charge of the defense of such action, or (iii) such indemnified party or parties shall have reasonably
concluded that there may be defenses available to it or them which are different from or additional to those available to the Company
(in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or
parties), in any of which events the actual and reasonable fees and expenses of not more than one additional firm of attorneys
selected by the Underwriter Indemnified Party (in addition to local counsel) shall be borne by the Company. Notwithstanding anything
to the contrary contained herein, if any Underwriter Indemnified Party shall assume the defense of such action as provided above,
the Company shall have the right to approve the terms of any settlement of such action, which approval shall not be unreasonably
withheld.
5.2 Indemnification
of the Company. Each Underwriter, severally and not jointly, agrees to indemnify and hold harmless the Company, its directors,
its officers who signed the Registration Statement and persons who control the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense described in the
foregoing indemnity from the Company to the several Underwriters, as incurred, but only with respect to such losses, liabilities,
claims, damages and expenses (or actions in respect thereof) which arise out of or are based upon untrue statements or omissions
made in the Registration Statement, any Preliminary Prospectus, the Pricing Disclosure Package or Prospectus or any amendment or
supplement thereto or in any application, in reliance upon, and in conformity with, the Underwriters’ Information. In case
any action shall be brought against the Company or any other person so indemnified, and in respect of which indemnity may be sought
against any Underwriter, such Underwriter shall have the rights and duties given to the Company, and the Company and each other
person so indemnified shall have the rights and duties given to the several Underwriters by the provisions of Section 5.1.2. The
Company agrees promptly to notify the Representative of the commencement of any litigation or proceedings against the Company or
any of its officers, directors or any person, if any, who controls the Company within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, in connection with the issuance and sale of the Public Securities or in connection with
the Registration Statement, the Pricing Disclosure Package, the Prospectus, or any Issuer Free Writing Prospectus or any Written
Testing-the-Waters Communication.
5.3 Contribution.
5.3.1 Contribution
Rights. If the indemnification provided for in this Section 5 shall for any reason be unavailable to or insufficient to hold
harmless an indemnified party under Section 5.1 or 5.2 in respect of any loss, claim, damage or liability, or any action in respect
thereof, referred to therein, then each indemnifying party shall, in lieu of indemnifying such indemnified party, contribute to
the amount paid or payable by such indemnified party as a result of such loss, claim, damage or liability, or action in respect
thereof, (i) in such proportion as shall be appropriate to reflect the relative benefits received by the Company, on the one hand,
and the Underwriters, on the other, from the Offering of the Public Securities, or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company, on the one hand, and the Underwriters, on the other, with respect
to the statements or omissions that resulted in such loss, claim, damage or liability, or action in respect thereof, as well as
any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and the Underwriters,
on the other, with respect to such Offering shall be deemed to be in the same proportion as the total net proceeds from the Offering
of the Public Securities purchased under this Agreement (before deducting expenses) received by the Company, as set forth in the
table on the cover page of the Prospectus, on the one hand, and the total underwriting discounts and commissions received by the
Underwriters with respect to the shares of the Common Stock purchased under this Agreement, as set forth in the table on the cover
page of the Prospectus, on the other hand. The relative fault shall be determined by reference to whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by
the Company or the Underwriters, the intent of the parties and their relative knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company and the Underwriters agree that it would not be just and equitable
if contributions pursuant to this Section 5.3.1 were to be determined by pro rata allocation (even if the Underwriters were treated
as one entity for such purpose) or by any other method of allocation that does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section 5.3.1 shall be deemed to include, for purposes of this Section 5.3.1,
any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 5.3.1 in no event shall an Underwriter be required to contribute
any amount in excess of the amount by which the total underwriting discounts and commissions received by such Underwriter with
respect to the Offering of the Public Securities exceeds the amount of any damages that such Underwriter has otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation.
5.3.2 Contribution
Procedure. Within fifteen (15) days after receipt by any party to this Agreement (or its representative) of notice of the commencement
of any action, suit or proceeding, such party will, if a claim for contribution in respect thereof is to be made against another
party (“contributing party”), notify the contributing party of the commencement thereof, but the failure to so notify
the contributing party will not relieve it from any liability which it may have to any other party other than for contribution
hereunder. In case any such action, suit or proceeding is brought against any party, and such party notifies a contributing party
or its representative of the commencement thereof within the aforesaid 15 days, the contributing party will be entitled to participate
therein with the notifying party and any other contributing party similarly notified. Any such contributing party shall not be
liable to any party seeking contribution on account of any settlement of any claim, action or proceeding affected by such party
seeking contribution on account of any settlement of any claim, action or proceeding affected by such party seeking contribution
without the written consent of such contributing party. The contribution provisions contained in this Section 5.3.2 are intended
to supersede, to the extent permitted by law, any right to contribution under the Securities Act, the Exchange Act or otherwise
available. Each Underwriter’s obligations to contribute pursuant to this Section 5.3 are several and not joint.
6. Default
by an Underwriter.
6.1 Default
Not Exceeding 10% of Firm Securities or Additional Securities. If any Underwriter or Underwriters shall default in its or their
obligations to purchase the Firm Securities or the Additional Shares and/or Additional Warrants, if the Over-allotment Option is
exercised hereunder, and if the number of the Firm Securities or Additional Shares and/or Additional Warrants with respect to which
such default relates does not exceed in the aggregate 10% of the number of Firm Securities or Additional Shares and/or Additional
Warrants that all Underwriters have agreed to purchase hereunder, then such Firm Securities or Additional Shares and/or Additional
Warrants to which the default relates shall be purchased by the non-defaulting Underwriters in proportion to their respective commitments
hereunder.
6.2 Default
Exceeding 10% of Firm Securities or Additional Securities. In the event that the default addressed in Section 6.1 relates to
more than 10% of the Firm Securities or Additional Shares and/or Additional Warrants, you may in your discretion arrange for yourself
or for another party or parties to purchase such Firm Securities or Additional Shares and/or Additional Warrants to which such
default relates on the terms contained herein. If, within one (1) Business Day after such default relating to more than 10% of
the Firm Securities or Additional Shares and/or Additional Warrants, you do not arrange for the purchase of such Firm Securities
or Additional Shares and/or Additional Warrants, then the Company shall be entitled to a further period of one (1) Business Day
within which to procure another party or parties satisfactory to you to purchase said Firm Securities or Additional Shares and/or
Additional Warrants on such terms. In the event that neither you nor the Company arrange for the purchase of the Firm Securities
or Additional Shares and/or Additional Warrants to which a default relates as provided in this Section 6, this Agreement will automatically
be terminated by you or the Company without liability on the part of the Company (except as provided in Sections 3.10 and 5 hereof)
or the several Underwriters (except as provided in Section 5 hereof); provided, however, that if such default occurs with respect
to the Additional Securities, this Agreement will not terminate as to the Firm Securities; and provided, further, that nothing
herein shall relieve a defaulting Underwriter of its liability, if any, to the other Underwriters and to the Company for damages
occasioned by its default hereunder.
6.3 Postponement
of Closing Date. In the event that the Firm Securities or Additional Securities to which the default relates are to be purchased
by the non-defaulting Underwriters, or are to be purchased by another party or parties as aforesaid, you or the Company shall have
the right to postpone the Closing Date or Option Closing Date for a reasonable period, but not in any event exceeding five (5)
Business Days, in order to effect whatever changes may thereby be made necessary in the Registration Statement, the Pricing Disclosure
Package or the Prospectus or in any other documents and arrangements, and the Company agrees to file promptly any amendment to
the Registration Statement, the Pricing Disclosure Package or the Prospectus that in the opinion of counsel for the Underwriter
may thereby be made necessary. The term “Underwriter” as used in this Agreement shall include any party substituted
under this Section 6 with like effect as if it had originally been a party to this Agreement with respect to such Public Securities.
7. Additional
Covenants.
7.1 Board
Composition and Board Designations. The Company shall ensure that: (i) the qualifications of the persons serving as members
of the Board of Directors and the overall composition of the Board comply with the Sarbanes-Oxley Act, the Exchange Act and the
listing rules of the NasdaqCM or any other national securities exchange, as the case may be, in the event the Company seeks to
have its Common Stock listed on another exchange or quoted on an automated quotation system, and (ii) if applicable, at least
one member of the Audit Committee of the Board of Directors qualifies as an “audit committee financial expert,” as
such term is defined under Regulation S-K and the listing rules of the NasdaqCM.
7.2 Right
of First Refusal. Provided that the Public Securities are sold in accordance with the terms of this Agreement, the Representative
shall have an irrevocable right of first refusal (the “Right of First Refusal”), for a period of twelve (12)
months from the Effective Date to act as sole book-runner and/or sole placement agent, at the Representative’s sole discretion,
on the Representative’s customary terms and conditions, for each and every public and private equity offering, including
all equity-linked financings (each, a “Subject Transaction”). The Representative shall have the sole right to
determine whether any broker-dealer shall have the right to participate in any such offering and the economic terms of such participation.
The Company shall notify the Representative of its intention to pursue a Subject Transaction, including the material terms thereof,
by providing written notice thereof by registered mail or overnight courier service addressed to the Representative. If the
Representative fails to exercise its Right of First Refusal with respect to any Subject Transaction within ten (10) Business Days
after the mailing of such written notice, then the Representative shall have no further claim or right with respect to the Subject
Transaction. The Representative may elect, in its sole and absolute discretion, not to exercise its Right of First Refusal with
respect to any Subject Transaction; provided that any such election by the Representative shall not adversely affect the
Representative’s Right of First Refusal with respect to any other Subject Transaction. The terms and conditions
of any such engagements shall be set forth in separate agreements and may be subject to, among other things, satisfactory completion
of due diligence by the Representative, market conditions, the absence of a material adverse change to the Company’s business,
financial condition and prospects, approval of the Representative’s internal committee and any other conditions that the
Representative may deem appropriate for transactions of such nature.
8. Effectiveness
of this Agreement and Termination Thereof.
8.1 Effectiveness
of the Agreement. This Agreement shall become effective when both the Company and the Representative have executed the same
and delivered counterparts of such signatures to the other party.
8.2 Termination.
The Representative shall have the right to terminate this Agreement at any time prior to any Closing Date, (i) if any domestic
or international event or act or occurrence has materially disrupted, or in your opinion will in the immediate future materially
disrupt, general securities markets in the United States; or (ii) if trading on the New York Stock Exchange or the Nasdaq
Stock Market LLC shall have been suspended or materially limited, or minimum or maximum prices for trading shall have been fixed,
or maximum ranges for prices for securities shall have been required by FINRA or by order of the Commission or any other government
authority having jurisdiction; or (iii) if the United States shall have become involved in a new war or an increase in major
hostilities; or (iv) if a banking moratorium has been declared by a New York State or federal authority; or (v) if a
moratorium on foreign exchange trading has been declared which materially adversely impacts the United States securities markets;
or (vi) if the Company shall have sustained a material loss by fire, flood, accident, hurricane, earthquake, theft, sabotage
or other calamity or malicious act which, whether or not such loss shall have been insured, will, in your opinion, make it inadvisable
to proceed with the delivery of the Firm Securities or Additional Securities; or (vii) if the Company is in material breach
of any of its representations, warranties or covenants hereunder; or (viii) if the Representative shall have become aware
after the date hereof of such a Material Adverse Change, or such adverse material change in general market conditions as in the
Representative’s judgment would make it impracticable to proceed with the offering, sale and/or delivery of the Public Securities
or to enforce contracts made by the Underwriters for the sale of the Public Securities.
8.3 Expenses.
Notwithstanding anything to the contrary in this Agreement, except in the case of a default by the Underwriters, pursuant to Section
6.2 above, in the event that this Agreement shall not be carried out for any reason whatsoever, within the time specified herein
or any extensions thereof pursuant to the terms herein, the Company shall be obligated to pay to the Underwriters their actual
and accountable out-of-pocket expenses related to the transactions contemplated herein then due and payable (including the fees
and disbursements of Representative Counsel) up to $125,000, inclusive of the $10,000 advance previously paid by the Company to
the Representative (the “Advance”), for out-of-pocket accountable expenses, and upon demand the Company shall
pay the full amount thereof to the Representative on behalf of the Underwriters; provided, however, that such expense cap in no
way limits or impairs the indemnification and contribution provisions of this Agreement. Notwithstanding the foregoing, any advance
received by the Representative will be reimbursed to the Company to the extent not actually incurred in compliance with FINRA Rule
5110(f)(2)(C).
8.4 Survival
of Indemnification. Notwithstanding any contrary provision contained in this Agreement, any election hereunder or any termination
of this Agreement, and whether or not this Agreement is otherwise carried out, the provisions of Section 5 shall remain in full
force and effect and shall not be in any way affected by, such election or termination or failure to carry out the terms of this
Agreement or any part hereof.
8.5 Representations,
Warranties, Agreements to Survive. All representations, warranties and agreements contained in this Agreement or in certificates
of officers of the Company submitted pursuant hereto, shall remain operative and in full force and effect regardless of (i) any
investigation made by or on behalf of any Underwriter or its Affiliates or selling agents, any person controlling any Underwriter,
its officers or directors or any person controlling the Company or (ii) delivery of and payment for the Public Securities.
9. Miscellaneous.
9.1 Notices.
All communications hereunder, except as herein otherwise specifically provided, shall be in writing and shall be mailed (registered
or certified mail, return receipt requested), personally delivered or sent by facsimile transmission and confirmed and shall be
deemed given when so delivered or faxed and confirmed or if mailed, two (2) days after such mailing.
If to the Representative:
Aegis Capital Corp.
810 Seventh Avenue, 18th
Floor
New York, New York 10019
Attn: Mr. David Bocchi, Managing Director of Investment Banking
Fax No.: (212) 813-1047
with a copy (which shall not constitute notice) to:
Blank Rome LLP
405 Lexington Avenue
New York, New York 10174
Attn: Brad L. Shiffman, Esq.
Fax No.: (917) 332-3725
If to the Company:
American CareSource Holdings, Inc.
1170 Peachtree Street – Suite 2350
Atlanta, Georgia 30309
Attention: General Counsel
Fax No: (205) 488-3857
with a copy (which shall not constitute notice) to:
Baker, Donelson, Bearman, Caldwell, Berkowitz, P.C.
1400 Wells Tower
420 20th Street North
Birmingham, Alabama 35203
Attention: B. G. Minisman, Jr.
Fax No: (205) 488-3705
9.2 Headings.
The headings contained herein are for the sole purpose of convenience of reference, and shall not in any way limit or affect the
meaning or interpretation of any of the terms or provisions of this Agreement.
9.3 Absence
of Fiduciary Relationship. The Company acknowledges and agrees that:
(i) each
Underwriter’s responsibility to the Company is solely contractual in nature, each Underwriter has been retained solely to
act as an underwriter in connection with the Offering and no fiduciary, advisory or agency relationship between the Company and
the Underwriters has been created in respect of any of the transactions contemplated by this Agreement, irrespective of whether
either the Representative has advised or is advising the Company on other matters;
(ii) the
price of the Public Securities set forth in this Agreement and the other terms of the Public Securities was established by the
Company following discussions and arm’s-length negotiations with the Representative, and the Company is capable of evaluating
and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
and
(iii) it
has been advised that the Representative and their respective affiliates are engaged in a broad range of transactions which may
involve interests that differ from those of the Company and that the Underwriters have no obligation to disclose such interests
and transactions to the Company by virtue of any fiduciary, advisory or agency relationship.
9.4 Research
Analyst Independence. The Company acknowledges that each Underwriter’s research analysts and research departments are
required to be independent from its investment banking division and are subject to certain regulations and internal policies, and
that such Underwriter’s research analysts may hold views and make statements or investment recommendations and/or publish
research reports with respect to the Company and/or the offering that differ from the views of their investment banking division.
The Company acknowledges that each Underwriter is a full service securities firm and as such from time to time, subject to applicable
securities laws, rules and regulations, may effect transactions for its own account or the account of its customers and hold long
or short positions in debt or equity securities of the Company; provided, however, that nothing in this Section 9.4 shall relieve
the Underwriter of any responsibility or liability it may otherwise bear in connection with activities in violation of applicable
securities laws, rules or regulations.
9.5 Amendment.
This Agreement may only be amended by a written instrument executed by each of the parties hereto.
9.6 Entire
Agreement. This Agreement (together with the other agreements and documents being delivered pursuant to or in connection with
this Agreement) constitutes the entire agreement of the parties hereto with respect to the subject matter hereof and thereof, and
supersedes all prior agreements and understandings of the parties, oral and written, with respect to the subject matter hereof.
9.7 Binding
Effect. This Agreement shall inure solely to the benefit of and shall be binding upon the Representative, the Underwriters,
the Company and the control persons, directors and officers referred to in Section 5.2 hereof, and their respective successors,
legal representatives, heirs and assigns, and no other person shall have or be construed to have any legal or equitable right,
remedy or claim under or in respect of or by virtue of this Agreement or any provisions herein contained. The term “successors
and assigns” shall not include a purchaser, in its capacity as such, of securities from any of the Underwriters.
9.8 Governing
Law; Consent to Jurisdiction; Trial by Jury. This Agreement shall be governed by and construed and enforced in accordance with
the laws of the State of New York, without giving effect to conflict of laws principles thereof. The Company hereby agrees that
any action, proceeding or claim against it arising out of, or relating in any way to this Agreement shall be brought and enforced
in the New York Supreme Court, County of New York, or in the United States District Court for the Southern District of New York,
and irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive. The Company hereby waives any objection to
such exclusive jurisdiction and that such courts represent an inconvenient forum. Any such process or summons to be served upon
the Company may be served by transmitting a copy thereof by registered or certified mail, return receipt requested, postage prepaid,
addressed to it at the address set forth in Section 9.1 hereof. Such mailing shall be deemed personal service and shall be legal
and binding upon the Company in any action, proceeding or claim. The Company agrees that the prevailing party(ies) in any such
action shall be entitled to recover from the other party(ies) all of its reasonable attorneys’ fees and expenses relating
to such action or proceeding and/or incurred in connection with the preparation therefor. The Company (on its behalf and, to the
extent permitted by applicable law, on behalf of its stockholders and affiliates) and each of the Underwriters 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.
9.9 Execution
in Counterparts. This Agreement may be executed in one or more counterparts, and by the different parties hereto in separate
counterparts, each of which shall be deemed to be an original, but all of which taken together shall constitute one and the same
agreement, and shall become effective when one or more counterparts has been signed by each of the parties hereto and delivered
to each of the other parties hereto. Delivery of a signed counterpart of this Agreement by facsimile or email/pdf transmission
shall constitute valid and sufficient delivery thereof.
9.10 Waiver,
etc. The failure of any of the parties hereto to at any time enforce any of the provisions of this Agreement shall not be deemed
or construed to be a waiver of any such provision, nor to in any way effect the validity of this Agreement or any provision hereof
or the right of any of the parties hereto to thereafter enforce each and every provision of this Agreement. No waiver of any breach,
non-compliance or non-fulfillment of any of the provisions of this Agreement shall be effective unless set forth in a written instrument
executed by the party or parties against whom or which enforcement of such waiver is sought; and no waiver of any such breach,
non-compliance or non-fulfillment shall be construed or deemed to be a waiver of any other or subsequent breach, non-compliance
or non-fulfillment.
[Signature Page Follows]
If the foregoing correctly
sets forth the understanding between the Underwriters and the Company, please so indicate in the space provided below for that
purpose, whereupon this letter shall constitute a binding agreement between us.
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AMERICAN CARESOURCE HOLDINGS, INC. |
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above, on behalf of itself and as |
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Representative of the several Underwriters |
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named on Schedule 1 hereto: |
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AEGIS CAPITAL CORP. |
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SCHEDULE 1
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Number of |
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Number of Additional |
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Shares to be |
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to be Purchased if |
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Firm Series A |
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Total Number of |
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Purchased if Over- |
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Units to be |
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Firm Series B Units |
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Option is Fully |
Underwriter |
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Purchased |
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to be Purchased |
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Fully Exercised |
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Exercised |
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SCHEDULE 2-A
Pricing Information
Number of Firm Series A Units:
Number of Firm Series B Units:
Number of Additional Shares:
Number of Additional Warrants:
Public Offering Price per Firm Security:
Underwriting Discount per Firm Security: $
Proceeds to Company per Firm Security (before expenses): $
Underwriting Non-accountable expense allowance per Firm Security:
$
SCHEDULE 2-B
Issuer General Use Free Writing Prospectuses
Free writing prospectuses filed with the SEC on October 21, 2015
and [ ● ], 2015
SCHEDULE 2-C
Written Testing-the-Waters Communications
None
SCHEDULE 3
List of Lock-Up Parties
John Pappajohn
Norman Winland
James A. Honn
Adam S. Winger
Edward B. Berger
Mark C. Oman
Matthew P. Kinley
Geoffrey E. Harris
EXHIBIT A
Form of Lock-Up Agreement
[_________]
Aegis Capital Corp.
810 Seventh Avenue, 18th Floor
New York, New York 10019
Ladies and Gentlemen:
The undersigned understands
that Aegis Capital Corp. (the “Representative”) proposes to enter into an Underwriting Agreement (the “Underwriting
Agreement ”) with American CareSource Holdings, Inc., a Delaware corporation (the “Company”), providing
for the public offering (the “Public Offering”) of shares of common stock, par value $0.01 per share, of the
Company (the “Shares”).
To induce the Representative
to continue its efforts in connection with the Public Offering, the undersigned hereby agrees that, without the prior written consent
of the Representative, the undersigned will not, during the period commencing on the effective date of the registration statement
(the “Registration Statement”) relating to the Public Offering and ending one hundred eighty days (180) [ninety
(90) days for 5% or greater holders] after such date (the “Lock-Up Period”), (1) offer, pledge, sell, contract
to sell, grant, lend, or otherwise transfer or dispose of, directly or indirectly, any Shares or any securities convertible into
or exercisable or exchangeable for Shares, whether now owned or hereafter acquired by the undersigned or with respect to which
the undersigned has or hereafter acquires the power of disposition (collectively, the “Lock-Up Securities”);
(2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of
ownership of the Lock-Up Securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery
of Lock-Up Securities, in cash or otherwise; (3) make any demand for or exercise any right with respect to the registration of
any Lock-Up Securities; or (4) publicly disclose the intention to make any offer, sale, pledge or disposition, or to enter into
any transaction, swap, hedge or other arrangement relating to any Lock-Up Securities. Notwithstanding the foregoing, and subject
to the conditions below, the undersigned may transfer Lock-Up Securities without the prior written consent of the Representative
in connection with (a) transactions relating to Lock-Up Securities acquired in open market transactions after the completion of
the Public Offering; provided that no filing under Section 16(a) of the Securities Exchange Act of 1934, as amended
(the “Exchange Act”), shall be required or shall be voluntarily made in connection with subsequent sales of
Lock-Up Securities acquired in such open market transactions; (b) transfers of Lock-Up Securities as a bona fide gift, by
will or intestacy or to a family member or trust for the benefit of a family member (for purposes of this lock-up agreement, “family
member” means any relationship by blood, marriage or adoption, not more remote than first cousin); (c) transfers of Lock-Up
Securities to a charity or educational institution; (d) the receipt by the undersigned from the Company of shares of Common Stock
(the “Plan Shares”) upon the vesting of any securities or the exercise of any options to purchase the Company’s
securities issued pursuant to the Company’s equity incentive plans or the transfer of shares of Common Stock or any securities
convertible into Common Stock to the Company upon a vesting event of the Company’s securities or upon the exercise of options
or warrants to purchase the Company’s securities including on a “cashless” or “net exercise” basis
or to cover tax obligations of the undersigned in connection with such vesting or exercise, provided that no filing under the Exchange
Act shall be required or shall be voluntarily made during the Lock-Up Period and provided further, that the Plan Shares shall be
subject to the terms of this letter; (e) if the undersigned, directly or indirectly, controls a corporation, partnership, limited
liability company or other business entity, any transfers of Lock-Up Securities to such corporation, partnership, limited liability
company or other business entity or to any shareholder, partner, member, or owner thereof; provided that in the case of
any transfer pursuant to the foregoing clauses (b), (c) or (d), (i) any such transfer shall not involve a disposition for
value, (ii) each transferee shall sign and deliver to the Representative a lock-up agreement substantially in the form of this
lock-up agreement and (iii) no filing under Section 16(a) of the Exchange Act shall be required or shall be voluntarily made.
The undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and
registrar against the transfer of the undersigned’s Lock-Up Securities except in compliance with this lock-up agreement.
No provision in this lock-up
agreement shall be deemed to restrict or prohibit the exercise, exchange or conversion by the undersigned of any securities exercisable
or exchangeable for or convertible into Shares, as applicable; provided that the undersigned does not transfer the Shares
acquired on such exercise, exchange or conversion during the Lock-Up Period, unless otherwise permitted pursuant to the terms of
this lock-up agreement. In addition, no provision herein shall be deemed to restrict or prohibit the entry into or modification
of a so-called “10b5-1” plan at any time (other than the entry into or modification of such a plan in such a manner
as to cause the sale of any Lock-Up Securities within the Lock-Up Period), or a sale of 100% of the Company’s outstanding
Shares, a merger or other similar transaction involving the Company.
The undersigned understands
that the Company and the Representative are relying upon this lock-up agreement in proceeding toward consummation of the Public
Offering. The undersigned further understands that this lock-up agreement is irrevocable and shall be binding upon the undersigned’s
heirs, legal representatives, successors and assigns.
The undersigned understands that, if the Underwriting
Agreement is not executed by [ ● ], 2015, or if the Underwriting
Agreement (other than the provisions thereof which survive termination) shall terminate or be terminated prior to payment for and
delivery of the Shares and warrants to purchase Shares to be sold thereunder, then this lock-up agreement shall be void and of
no further force or effect.
Whether or not the Public Offering actually
occurs depends on a number of factors, including market conditions. Any Public Offering will only be made pursuant to an Underwriting
Agreement, the terms of which are subject to negotiation between the Company and the Representative.
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(Name - Please Print) |
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(Signature) |
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(Name of Signatory, in the case of entities - Please Print) |
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(Title of Signatory, in the case of entities - Please Print) |
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Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the use in this Registration Statement
Amendment No. 6 on Form S-1 (No. 333-201947) of American CareSource Holdings, Inc. of our report dated March 31,
2015, relating to our audits of the consolidated financial statements of American CareSource Holdings, Inc. as of and for the
years ended December 31, 2014 and 2013, and our audit report dated July 16, 2014, relating to our audit of the
combined financial statements of CorrectMed Locust Grove, LLC and CorrectMed Scott, LLC as of and for the year ended December
31, 2013, appearing in the Prospectus, which is part of this Registration Statement.
We also consent to the reference to our firm under the caption
"Experts" in such Prospectus.
/s/ RSM US LLP
Des Moines, Iowa
November 25, 2015
Exhibit 23.2
Consent of Independent Auditors
We hereby consent to the use in this
Amendment No. 6 to the Registration Statement on Form S-1 (No. 333-201947) of American CareSource Holdings Inc. of our report
dated July 16, 2015, with respect to our audits of the financial statements of Medac Health Services, P.A. for the years
ended December 31, 2014 and 2013.
/s/LWBJ, LLP
West Des Moines, Iowa
November 25, 2015
American CareSource (CE) (USOTC:GNOW)
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American CareSource (CE) (USOTC:GNOW)
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