Form 8-K
8-K — Lucid Diagnostics Inc.
Accession: 0001493152-26-018725
Filed: 2026-04-23
Period: 2026-04-23
CIK: 0001799011
SIC: 3841 (SURGICAL & MEDICAL INSTRUMENTS & APPARATUS)
Item: Entry into a Material Definitive Agreement
Item: Regulation FD Disclosure
Item: Financial Statements and Exhibits
Documents
8-K — form8-k.htm (Primary)
EX-1.1 (ex1-1.htm)
EX-5.1 (ex5-1.htm)
EX-99.1 (ex99-1.htm)
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GRAPHIC (ex99-1_001.jpg)
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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 20549
FORM
8-K
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES
EXCHANGE ACT OF 1934
Date
of Report (Date of earliest event reported): April 23, 2026
LUCID
DIAGNOSTICS INC.
(Exact
Name of Registrant as Specified in Charter)
Delaware
001-40901
82-5488042
(State
or Other Jurisdiction
of
Incorporation)
(Commission
File
Number)
(IRS
Employer
Identification
No.)
360
Madison Avenue, 25th Floor, New York, New York
10017
(Address
of Principal Executive Offices)
(Zip
Code)
Registrant’s
telephone number, including area code: (917) 813-1828
N/A
(Former
Name or Former Address, if Changed Since Last Report)
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under
any of the following provisions (see General Instruction A.2. below):
☐
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425).
☐
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12).
☐
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)).
☐
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)).
Securities
registered pursuant to Section 12(b) of the Act:
Title
of each class
Trading
Symbol(s)
Name
of each exchange on which registered
Common
Stock, Par Value $0.001 Per Share
LUCD
The
Nasdaq Stock Market LLC
Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405
of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging
growth company ☒
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item
1.01. Entry
Into a Material Definitive Agreement.
On
April 23, 2026, Lucid Diagnostics Inc. (the “Company”) entered into an underwriting agreement (the “Underwriting
Agreement”) with Canaccord Genuity LLC and BTIG, LLC, as representatives (the “Representatives”) of the
underwriters named therein (the “Underwriters”), for an underwritten offering to the public of shares of the Company’s
common stock, par value $0.001 per share (the “Common Stock”), at a public offering price of $1.00 per share (the
“Offering”).
Pursuant
to the Underwriting Agreement, the Company agreed to sell, and the Underwriters agreed to purchase, 18,000,000 shares of Common Stock
(the “Shares”) at a price of $0.94 per share, representing an underwriting discount of $0.06 per share. The Company
also agreed to reimburse the Underwriters for certain expenses incurred in connection with the Offering, including their reasonable fees
and expenses of legal counsel, up to $75,000. The Underwriting Agreement is subject to customary closing conditions and contains customary
representations, warranties and covenants of the Company. In addition, the Company agreed to indemnify the Underwriters against certain
liabilities, including for certain liabilities under the Securities Act of 1933, as amended (the “Securities Act”).
Canaccord
Genuity LLC and BTIG, LLC are acting as joint bookrunners of the Offering.
The
gross proceeds of the Offering, before deducting the underwriting discount and the expenses of the Offering, will be $18,000,000. The
sale of the Shares is expected to close on or about April 24, 2026, subject to the customary closing conditions contained in the Underwriting
Agreement.
The
Offering was made pursuant to the Company’s existing shelf registration statement on Form S-3 (Registration No. 333-291981), which
was filed with the Securities and Exchange Commission (“SEC”) on December 5, 2025 and declared effective by the SEC
on March 26, 2026, and a prospectus supplement thereto, which will be filed with the SEC in accordance with Rule 424 under the Securities
Act.
The
Underwriting Agreement is attached hereto as Exhibit 1.1 and is incorporated herein by reference. A copy of the opinion of Graubard Miller
relating to the legality of the issuance and sale of the securities in the Offering is attached hereto as Exhibit 5.1. The foregoing
description of the Offering by the Company and the documentation related thereto does not purport to be complete and is qualified in
its entirety by reference to such exhibits, which are incorporated herein by reference.
The
Underwriting Agreement has been included to provide investors and security holders with information regarding its terms. The agreement
is not intended to provide any other factual information about the Company. The representations, warranties and covenants contained in
the Underwriting Agreement were made only for purposes of such agreement and as of specific dates, were solely for the benefit of the
parties to such agreement, may in some cases be made solely for the allocation of risk between the parties and may be subject to limitations
agreed upon by the contracting parties.
Item
7.01. Regulation
FD Disclosure.
On
April 23, 2026, the Company issued a press release announcing that it had priced the Offering. The press release is attached to this
Current Report as Exhibit 99.1 and is incorporated herein by reference.
The
information furnished under this Item 7.01, including the exhibits related thereto, shall not be deemed “filed” for purpose
of Section 18 of the Securities Exchange Act of 1934, as amended, nor shall it be deemed incorporated by reference in any disclosure
document of the Company, except as shall be expressly set forth by specific reference in such document.
Item
9.01. Financial
Statements and Exhibits.
(d)
Exhibits:
Exhibit
No.
Description
1.1
Underwriting Agreement.
5.1
Opinion of Graubard Miller.
23.1
Consent of Graubard Miller (including as part of Exhibit 5.1).
99.1
Press release announcing the pricing of the Offering.
104
Cover
Page Interactive Data File (embedded within the Inline XBRL document).
SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
Dated:
April 23, 2026
LUCID
DIAGNOSTICS INC.
By:
/s/
Dennis McGrath
Dennis
McGrath
Chief
Financial Officer
EX-1.1
EX-1.1
Filename: ex1-1.htm · Sequence: 2
Exhibit
1.1
Execution Version
18,000,000
Shares
LUCID
DIAGNOSTICS INC.
Common
Stock, $0.001 par value per share
UNDERWRITING
AGREEMENT
April
23, 2026
CANACCORD
GENUITY LLC
BTIG,
LLC
As
Representatives of the several
Underwriters
named in Schedule I hereto
c/o Canaccord
Genuity LLC
One Post
Office Square, Suite 3000
Boston,
MA 02109
c/o BTIG,
LLC
350 Bush
Street, 9th Floor
San Francisco,
California 94104
Ladies
and Gentlemen:
Lucid
Diagnostics Inc., a Delaware corporation (the “Company”) proposes to sell to the several Underwriters named
in Schedule I hereto (the “Underwriters”) an aggregate of 18,000,000 shares (the “Securities”)
of common stock, $0.001 par value per share (the “Common Stock”), of the Company.
The
Company hereby confirms its agreement with respect to the sale of the Securities to the several Underwriters, for whom Canaccord Genuity
LLC and BTIG, LLC are acting as representatives (the “Representatives” and if there are no Underwriters other
than Canaccord Genuity LLC and BTIG, LLC, the term Representatives as used herein shall have the same meaning as Underwriters).
1.
Registration Statement and Prospectus. The Company has prepared and filed with the Securities and Exchange Commission (the
“Commission”) a registration statement on Form S-3, as amended (File No. 333- 291981), under the Securities
Act of 1933, as amended (the “Securities Act” or “Act”) and the rules and regulations
(the “Rules and Regulations”) of the Commission thereunder, and such amendments to such registration statement
as may have been required to the date of this Underwriting Agreement (the “Agreement”.
Such
registration statement has been declared effective by the Commission. Each part of such registration statement, including the amendments,
exhibits and any schedules thereto, the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Securities
Act and the documents and information otherwise deemed to be a part thereof or included therein by Rule 430B under the Securities Act
(the “Rule 430B Information”) or otherwise pursuant to the Rules and Regulations, as of the time the Registration
Statement became effective, is herein called the “Registration Statement.” Any registration statement filed
by the Company pursuant to Rule 462(b) under the Securities Act is called the “Rule 462(b) Registration Statement” and, from
and after the date and time of filing of the Rule 462(b) Registration Statement, the term “Registration Statement” shall
include the Rule 462(b) Registration Statement.
The
prospectus in the form in which it has most recently been filed with the Commission on or prior to the date of this Agreement is herein
called the “Base Prospectus.” Promptly after execution and delivery of this Agreement, the Company will prepare
and file with the Commission a final prospectus supplement to the Base Prospectus relating to the Securities and the offering thereof
in accordance with the provisions Rule 430B and Rule 424(b) of the Rules and Regulations. Such final supplemental form of prospectus
(including the Base Prospectus as so supplemented), in the form filed with the Commission pursuant to Rule 424(b) is herein called the
“Prospectus.” Any reference herein to the Base Prospectus or the Prospectus shall be deemed to refer to include
the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Securities Act as of the date of such prospectus.
For
purposes of this Agreement, all references to the Registration Statement, the Rule 462(b) Registration Statement, the Base Prospectus,
the Prospectus or any amendment or supplement to any of the foregoing shall be deemed to include the copy filed with the Commission pursuant
to its Electronic Data Gathering, Analysis and Retrieval System or any successor system thereto (“EDGAR”).
All references in this Agreement to financial statements and schedules and other information which is “described,” “contained,”
“included” or “stated” in the Registration Statement, the Base Prospectus or the Prospectus (or other references
of like import) shall be deemed to mean and include all such financial statements and schedules and other information which is incorporated
by reference in or otherwise deemed by the Rules and Regulations to be a part of or included in the Registration Statement, the Base
Prospectus or the Prospectus, as the case may be; and all references in this Agreement to amendments or supplements to the Registration
Statement, the Base Prospectus or the Prospectus shall be deemed to mean and include the subsequent filing of any document under the
Securities Exchange Act of 1934, as amended (the “Exchange Act”) and which is deemed to be incorporated therein
by reference therein or otherwise deemed by the Rules and Regulations to be a part thereof.
2.
Representations and Warranties of the Company.
(a)
Representations and Warranties of the Company. The Company represents and warrants to, and agrees with, the several Underwriters
as follows:
(i)
Registration Statement and Prospectuses. No order preventing or suspending the use of the Prospectus (or any supplement thereto)
has been issued by the Commission and no proceeding for that purpose has been initiated or is pending or, to the knowledge of the Company,
threatened by the Commission. As of the time each part of the Registration Statement (or any post-effective amendment thereto) became
or becomes effective (including each deemed effective date with respect to the Underwriters pursuant to Rule 430B or otherwise under
the Securities Act), such part conformed or will conform in all material respects to the requirements of the Act and the Rules and Regulations.
Upon the filing or first use within the meaning of the Rules and Regulations, the Prospectus (or any supplement to either) conformed
or will conform in all material respects to the requirements of the Act and the Rules and Regulations. The Registration Statement and
any post-effective amendment thereto has become effective under the Securities Act within three years of the date hereof. The Company
has complied to the Commission’s satisfaction with all requests of the Commission for additional or supplemental information. No
stop order suspending the effectiveness of the Registration Statement, any post-effective amendment or any part thereof is in effect
and no proceedings for such purpose have been instituted or are pending or, to the knowledge of the Company, are threatened by the Commission.
(ii)
Accurate Disclosure. Neither the Registration Statement nor any amendment thereto, at the effective time of each part thereof,
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 not misleading. As of the Time of Sale (as defined below), neither (A)
the Time of Sale Disclosure Package (as defined below) nor (B) any issuer free writing prospectus (as defined below), when considered
together with the Time of Sale Disclosure Package, included an untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Neither
the Prospectus nor any supplement thereto, as of its issue date, at the time of any filing with the Commission pursuant to Rule 424(b)
of the Rules and Regulations, at the 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 light of the circumstances under which
they were made, not misleading. The representations and warranties in this Section 2(a)(ii) shall not apply to statements in or omissions
from the Registration Statement (or any amendment thereto), the Time of Sale Disclosure Package or the Prospectus (or any supplement
thereto) made in reliance upon, and in conformity with, written information furnished to the Company by the Representatives, or by any
Underwriter through the Representatives, specifically for use in the preparation of such document, it being understood and agreed that
the only such information furnished by any Underwriter consists of the information described as such in Section 6(e).
Each
reference to an “issuer free writing prospectus” herein means an issuer free writing prospectus as defined in Rule
433 of the Rules and Regulations.
“Time
of Sale Disclosure Package” means any free writing prospectus set forth on Schedule II and the information on Schedule III,
all considered together.
Each
reference to a “free writing prospectus” herein means a free writing prospectus as defined in Rule 405 of the Rules
and Regulations.
“Time
of Sale” means 7:45 a.m. (Eastern time) on the date of this Agreement.
(iii)
Issuer Free Writing Prospectuses.
(A)
Each Issuer Free Writing Prospectus does not include any information that conflicts with the information contained in the Registration
Statement or the Prospectus. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus
based upon and in conformity with written information furnished to the Company by the Representatives or by any Underwriter through the
Representatives specifically for use therein; it being understood and agreed that the only such information furnished by any Underwriter
consists of the information described as such in Section 6(e).
(B)
(1) At the earliest time after the filing of the Registration Statement that the Company or another offering participant made a bona
fide offer (within the meaning of Rule 164(h)(2) under the Securities Act) of the Securities and (2) at the date hereof, the Company
was not and is not (as applicable) an “ineligible issuer,” as defined in Rule 405 under the Securities Act, including the
Company or any Subsidiary (as defined below) in the preceding three years not having been convicted of a felony or misdemeanor or having
been made the subject of a judicial or administrative decree or order as described in Rule 405 of the Rules and Regulations (without
taking account of any determination by the Commission pursuant to Rule 405 of the Rules and Regulations that it is not necessary that
the Company be considered an ineligible issuer), nor an “excluded issuer” as defined in Rule 164 under the Securities Act.
(C)
Each Issuer Free Writing Prospectus satisfied, as of its issue date and at all subsequent times to the Time of Sale, all other conditions
to use thereof as set forth in Rules 164 and 433 under the Securities Act.
(iv)
Testing-the-Waters Materials. The Company (i) has not alone engaged in any Testing-the-Waters Communications (as defined below),
other than Testing-the-Waters Communications with the prior consent of the Representatives with entities that are qualified institutional
buyers within the meaning of Rule 144A under the Act or institutions that are accredited investors within the meaning of Rule 501 under
the Act and (ii) has not authorized anyone other than the Representatives to engage in Testing-the-Waters Communications. The Company
reconfirms that the Representatives have been authorized to act on its behalf in undertaking Testing-the-Waters Communications. The Company
has not distributed any Written Testing-the-Waters Communications (as defined below) other than those listed on Schedule V hereto. “Testing-the-Waters
Communication” means any oral or written communication with potential investors undertaken in reliance on Rule 163B under
the Act. “Written Testing-the-Waters Communication” means any Testing-the-Waters Communication that is a written
communication within the meaning of Rule 405 under the Act. Any individual Written Testing-the-Waters Communication does not conflict
with the information contained in the Registration Statement or the Time of Sale Disclosure Package, complied in all material respects
with the Act, and when taken together with the Time of Sale Disclosure Package as of the Time of Sale, did not contain any untrue statement
of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(v)
No Other Offering Materials. The Company has not distributed and will not distribute any prospectus or other offering material
in connection with the offering and sale of the Securities other than the Time of Sale Disclosure Package or the Prospectus or other
materials permitted by the Act to be distributed by the Company; provided, however, that, except as set forth on Schedule
II, the Company has not made and will not make any offer relating to the Securities that would constitute a free writing prospectus,
except in accordance with the provisions of Section 4(a)(xv) of this Agreement and, except as set forth on Schedule V, the Company has
not made and will not make any communication relating to the Securities that would constitute a Testing-the-Waters Communication, except
in accordance with the provisions of Section 2(a)(iv) of this Agreement.
(vi)
Conformity with the Securities Act and Exchange Act. The Registration Statement, the Time of Sale Disclosure Package, the Prospectus,
any Issuer Free Writing Prospectus or any amendment or supplement thereto, and the documents incorporated by reference in the Registration
Statement, the Time of Sale Disclosure Package, the Prospectus or any amendment or supplement thereto, when such documents were or are
filed with the Commission under the Securities Act or the Exchange Act or became or become effective under the Securities Act, as the
case may be, conformed or will conform in all material respects with the requirements of the Securities Act and the Exchange Act, as
applicable.
(vii)
Financial Information. The consolidated financial statements of the Company included or incorporated by reference in the Registration
Statement, the Time of Sale Disclosure Package, the Prospectus and the Issuer Free Writing Prospectus, if any, together with the related
notes and schedules, present fairly, in all material respects, the consolidated financial position of the Company and the Subsidiaries
(as defined below) as of the dates indicated and the consolidated results of operations, cash flows and changes in stockholders’
equity of the Company for the periods specified and have been prepared in compliance with the requirements of the Securities Act and
Exchange Act and in conformity with U.S. Generally Accepted Accounting Principles (“GAAP”) applied on a consistent
basis during the periods involved; the other financial and statistical data with respect to the Company and the Subsidiaries (as defined
below) contained or incorporated by reference in the Registration Statement, the Time of Sale Disclosure Package, the Prospectus and
the Issuer Free Writing Prospectuses, if any, are accurately and fairly presented and prepared on a basis consistent with the financial
statements and books and records of the Company; there are no financial statements (historical or pro forma) that are required to be
included or incorporated by reference in the Registration Statement, the Time of Sale Disclosure Package or the Prospectus that are not
included or incorporated by reference as required; the Company and the Subsidiaries (as defined below) do not have any material liabilities
or obligations, direct or contingent (including any off-balance sheet obligations), not described in the Registration Statement (excluding
the exhibits thereto), the Time of Sale Disclosure Package and the Prospectus, other than liabilities incurred in the ordinary course
of business; and all disclosures contained or incorporated by reference in the Registration Statement, the Time of Sale Disclosure Package,
the Prospectus and the Issuer Free Writing Prospectuses, if any, regarding “non-GAAP financial measures” (as such term is
defined by the rules and regulations of the Commission) comply with Regulation G of the Exchange Act and Item 10 of Regulation S-K under
the Securities Act, to the extent applicable. The interactive data in eXtensible Business Reporting Language included or incorporated
by reference in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus fairly presents the information called
for in all material respects and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto.
(viii)
Conformity with EDGAR Filing. The Prospectus delivered to the Underwriters for use in connection with the sale of the Securities
pursuant to this Agreement will be identical to the versions of the Prospectus created to be transmitted to the Commission for filing
via EDGAR, except to the extent permitted by Regulation S-T.
(ix)
Organization. The Company and each of its Subsidiaries are duly organized, validly existing as a corporation and in good standing
under the laws of their respective jurisdictions of organization. The Company and each of its Subsidiaries are duly licensed or qualified
as a foreign corporation for transaction of business and in good standing under the laws of each other jurisdiction in which their respective
ownership or lease of property or the conduct of their respective businesses requires such license or qualification, and have all corporate
power and authority necessary to own or hold their respective properties and to conduct their respective businesses as described in the
Registration Statement, the Time of Sale Disclosure Package and the Prospectus, except where the failure to be so qualified or in good
standing or have such power or authority would not, individually or in the aggregate, have a material adverse effect or would reasonably
be expected to have a material adverse effect on or affecting the assets, business, operations, earnings, properties, condition (financial
or otherwise), prospects, stockholders’ equity or results of operations of the Company and the Subsidiaries taken as a whole, or
prevent or materially interfere with consummation of the transactions contemplated hereby (a “Material Adverse Effect”).
(x)
Subsidiaries. The subsidiaries set forth on Exhibit 21.1 to the Company’s most recent Annual Report on Form 10-K (collectively,
the “Subsidiaries”), are the Company’s only significant subsidiaries (as such term is defined in Rule
1-02 of Regulation S-X promulgated by the Commission). Except as set forth in the Registration Statement, the Time of Sale Disclosure
Package and in the Prospectus, the Company owns, directly or indirectly, all of the equity interests of the Subsidiaries free and clear
of any lien, charge, security interest, encumbrance, right of first refusal or other restriction, and all the equity interests of the
Subsidiaries are validly issued and are fully paid, nonassessable and free of preemptive and similar rights. No Subsidiary is currently
prohibited, directly or indirectly, from paying any dividends to the Company, from making any other distribution on such Subsidiary’s
capital stock, from repaying to the Company any loans or advances to such Subsidiary from the Company or from transferring any of such
Subsidiary’s property or assets to the Company or any other Subsidiary of the Company.
(xi)
No Violation or Default. Neither the Company nor any of its Subsidiaries is (i) in violation of its charter or by-laws or similar
organizational documents; (ii) in default, and no event has occurred that, with notice or lapse of time or both, would constitute such
a default, in the due performance or observance of any term, covenant or condition contained in any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company or
any of its Subsidiaries is bound or to which any of the property or assets of the Company or any of its Subsidiaries are subject; or
(iii) in violation of any law or statute or any judgment, order, rule or regulation of any Governmental Authority (as defined below),
except, in the case of each of clauses (ii) and (iii) above, for any such violation or default that would not, individually or in the
aggregate, have a Material Adverse Effect. To the Company’s knowledge, no other party under any material contract or other agreement
to which it or any of its Subsidiaries is a party is in default in any respect thereunder where such default would have a Material Adverse
Effect. “Governmental Authority” means (i) any federal, provincial, state, local, municipal, national or international
government or governmental authority, regulatory or administrative agency, governmental commission, department, board, bureau, agency
or instrumentality, court, tribunal, arbitrator or arbitral body (public or private); (ii) any self-regulatory organization; or (iii)
any political subdivision of any of the foregoing.
(xii)
No Material Adverse Change. Subsequent to the respective dates as of which information is given in the Registration Statement,
the Time of Sale Disclosure Package, the Prospectus and the Free Writing Prospectuses, if any (including any document deemed incorporated
by reference therein), there has not been (i) any Material Adverse Effect or the occurrence of any development that the Company reasonably
expects will result in a Material Adverse Effect, (ii) any obligation or liability, direct or contingent (including any off-balance sheet
obligations), incurred by the Company or any Subsidiary, which is material to the Company and the Subsidiaries taken as a whole, (iii)
any material change in the capital stock or outstanding long-term indebtedness of the Company or any of its Subsidiaries or (iv) any
dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, other than in each
case above in the ordinary course of business or as otherwise disclosed in the Registration Statement or Prospectus (including any document
deemed incorporated by reference therein).
(xiii)
Capitalization. The issued and outstanding shares of capital stock of the Company have been validly issued, are fully paid and
nonassessable and, other than as disclosed in the Registration Statement, the Time of Sale Disclosure Package or the Prospectus, or as
have been satisfied or waived in connection with the Offering, are not subject to any preemptive rights, rights of first refusal or similar
rights. The Company has an authorized, issued and outstanding capitalization as set forth in the Registration Statement, the Time of
Sale Disclosure Package and the Prospectus as of the dates referred to therein (other than the grant of additional options shares of
restricted stock, or other stock-based awards under the Company’s existing stock option plans, or changes in the number of outstanding
shares of Common Stock of the Company due to the issuance of shares upon the exercise or conversion of securities exercisable for, or
convertible into, Common Stock outstanding on the date hereof) and such authorized capital stock conforms to the description thereof
set forth in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus. The description of the securities of
the Company in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus is complete and accurate in all material
respects. Except as disclosed in or contemplated by the Registration Statement, the Time of Sale Disclosure Package or the Prospectus,
as of the date referred to therein, the Company does not have outstanding any options to purchase, or any rights or warrants to subscribe
for, or any securities or obligations convertible into, or exchangeable for, or any contracts or commitments to issue or sell, any shares
of capital stock or other securities.
(xiv)
Authorization; Enforceability. The Company has full legal right, power and authority to enter into this Agreement and perform
the transactions contemplated hereby. This Agreement has been duly authorized, executed and delivered by the Company and is a legal,
valid and binding agreement of the Company enforceable in accordance with its terms, except to the extent that enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general
equitable principles.
(xv)
Authorization of Securities. The Securities, when issued and delivered pursuant to the terms approved by the board of directors
of the Company or a duly authorized committee thereof, or a duly authorized executive committee, against payment therefor as provided
herein, will be duly and validly authorized and issued and fully paid and nonassessable, free and clear of any pledge, lien, encumbrance,
security interest or other claim, including any statutory or contractual preemptive rights, resale rights, rights of first refusal or
other similar rights, and will be registered pursuant to Section 12 of the Exchange Act. The Securities, when issued, will conform to
the description thereof set forth in or incorporated into the Prospectus.
(xvi)
No Consents Required. No consent, approval, authorization, order, registration or qualification of or with any Governmental Authority
is required for the execution, delivery and performance by the Company of this Agreement, the issuance and sale by the Company of the
Securities, except for such consents, approvals, authorizations, orders and registrations or qualifications as may be required under
applicable state securities laws, or by the by-laws and rules of the Financial Industry Regulatory Authority (“FINRA”)
or the Exchange, in connection with the sale of the Securities to the Underwriters.
(xvii)
No Preferential Rights. Except as set forth in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus,
or as have been satisfied or waived in connection with the Offering, (i) no person, as such term is defined in Rule 1-02 of Regulation
S-X promulgated under the Securities Act (each, a “Person”), has the right, contractual or otherwise, to cause
the Company to issue or sell to such Person any Common Stock or shares of any other capital stock or other securities of the Company,
(ii) no Person has any preemptive rights, resale rights, rights of first refusal, rights of co-sale, or any other rights (whether pursuant
to a “poison pill” provision or otherwise) to purchase any Common Stock or shares of any other capital stock or other securities
of the Company, (iii) no Person has the right to act as an underwriter or as a financial advisor to the Company in connection with the
offer and sale of the Common Stock, and (iv) no Person has the right, contractual or otherwise, to require the Company to register under
the Securities Act any Common Stock or shares of any other capital stock or other securities of the Company, or to include any such shares
or other securities in the Registration Statement or the offering contemplated thereby, whether as a result of the filing or effectiveness
of the Registration Statement or the sale of the Securities as contemplated thereby or otherwise.
(xviii)
Independent Public Accounting Firm. Each of Marcum LLP (the “Prior Accountant”) and CBIZ CPAs P.C. (the
“Current Accountant” and together with the Prior Accountant, the “Accountants”),
whose reports on the consolidated financial statements of the Company are filed with the Commission as part of the Company’s most
recent Annual Report on Form 10-K filed with the Commission and incorporated by reference into the Registration Statement, the Time of
Sale Disclosure Package and the Prospectus, is and, during the period covered by their report, were an independent registered public
accounting firm within the meaning of the Securities Act and the Public Company Accounting Oversight Board (United States). To the Company’s
knowledge, the Accountants are not in violation of the auditor independence requirements of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley
Act”) with respect to the Company.
(xix)
Enforceability of Agreements. Except as set forth in the Registration Statement, the Time of Sale Disclosure Package or the Prospectus,
all agreements between the Company and third parties expressly referenced in the Prospectus are legal, valid and binding obligations
of the Company enforceable in accordance with their respective terms, except to the extent that (i) enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general equitable
principles and (ii) the indemnification provisions of certain agreements may be limited by federal or state securities laws or public
policy considerations in respect thereof.
(xx)
No Litigation. Except as set forth in the Registration Statement, the Time of Sale Disclosure Package or the Prospectus, there
are no actions, suits or proceedings by or before any Governmental Authority pending, nor, to the Company’s knowledge, any audits
or investigations by or before any Governmental Authority to which the Company or a Subsidiary is a party or to which any property of
the Company or any of its Subsidiaries is the subject that, individually or in the aggregate, would have a Material Adverse Effect and,
to the Company’s knowledge, no such actions, suits, proceedings, audits or investigations are threatened or contemplated by any
Governmental Authority or threatened by others; and (i) there are no current or pending audits or investigations, actions, suits or proceedings
by or before any Governmental Authority that are required under the Securities Act to be described in the Prospectus that are not so
described; and (ii) there are no contracts or other documents that are required under the Securities Act to be filed as exhibits to the
Registration Statement that are not so filed.
(xxi)
Consents and Permits. Except as disclosed in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus,
the Company and its Subsidiaries have made all filings, applications and submissions required by, possesses and is operating in compliance
with, all approvals, licenses, certificates, certifications, clearances, consents, grants, exemptions, marks, notifications, orders,
permits and other authorizations issued by, the appropriate federal, state or foreign Governmental Authority (including, without limitation,
the United States Food and Drug Administration (the “FDA”), the United States Drug Enforcement Administration
or any other foreign, federal, state, provincial, court or local government or regulatory authorities including self-regulatory organizations
engaged in the regulation of clinical trials, pharmaceuticals, biologics or biohazardous substances or materials) necessary for the ownership
or lease of their respective properties or to conduct its businesses as described in the Registration Statement, the Time of Sale Disclosure
Package and the Prospectus (collectively, “Permits”), except for such Permits the failure of which to possess,
obtain or make the same would not have a Material Adverse Effect; the Company and its Subsidiaries are in compliance with the terms and
conditions of all such Permits, except where the failure to be in compliance would not have a Material Adverse Effect; all of the Permits
are valid and in full force and effect, except where any invalidity, individually or in the aggregate, would not be reasonably expected
to have a Material Adverse Effect; and neither the Company nor any of its Subsidiaries has received any written notice relating to the
limitation, revocation, cancellation, suspension, modification or non-renewal of any such Permit which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect, or has any reason to believe that any
such license, certificate, permit or authorization will not be renewed in the ordinary course. To the extent required by applicable laws
and regulations of the FDA, the Company or the applicable Subsidiary has submitted to the FDA an Investigational Device Exemption Application
or amendment or supplement thereto for each clinical trial it has conducted or sponsored or is conducting or sponsoring; all such submissions
were in material compliance with applicable laws and rules and regulations when submitted and no material deficiencies have been asserted
by the FDA with respect to any such submissions.
(xxii)
Regulatory Filings. Except as disclosed in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus,
neither the Company nor any of its Subsidiaries has failed to file with the applicable Governmental Authorities (including, without limitation,
the FDA, or any foreign, federal, state, provincial or local Governmental Authority performing functions similar to those performed by
the FDA) any required filing, declaration, listing, registration, report or submission, except for such failures that, individually or
in the aggregate, would not have a Material Adverse Effect; except as disclosed in the Registration Statement, the Time of Sale Disclosure
Package and the Prospectus, all such filings, declarations, listings, registrations, reports or submissions were in compliance with applicable
laws when filed and no deficiencies have been asserted by any applicable regulatory authority with respect to any such filings, declarations,
listings, registrations, reports or submissions, except for any deficiencies that, individually or in the aggregate, would not have a
Material Adverse Effect. The Company has operated and currently is, in all material respects, in compliance with the United States Federal
Food, Drug, and Cosmetic Act, all applicable rules and regulations of the FDA and other federal, state, local and foreign Governmental
Authority exercising comparable authority.
(xxiii)
Intellectual Property. Except as disclosed in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus,
the Company and its Subsidiaries own, possess, license or have other rights to use all foreign and domestic patents, patent applications,
trade and service marks, trade and service mark registrations, trade names, copyrights, licenses, inventions, trade secrets, technology,
Internet domain names, know-how and other intellectual property (collectively, the “Intellectual Property”),
necessary for the conduct of their respective businesses as now conducted except to the extent that the failure to own, possess, license
or otherwise hold adequate rights to use such Intellectual Property would not, individually or in the aggregate, have a Material Adverse
Effect. Except as disclosed in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus (i) there are no rights
of third parties to any such Intellectual Property owned by the Company and its Subsidiaries; (ii) to the Company’s knowledge,
there is no infringement by third parties of any such Intellectual Property; (iii) there is no pending or, to the Company’s knowledge,
threatened action, suit, proceeding or claim by others challenging the Company’s and its Subsidiaries’ rights in or to any
such Intellectual Property, and the Company is unaware of any facts which could form a reasonable basis for any such action, suit, proceeding
or claim; (iv) there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others challenging
the validity or scope of any such Intellectual Property; (v) there is no pending or, to the Company’s knowledge, threatened action,
suit, proceeding or claim by others that the Company and its Subsidiaries infringe or otherwise violate any patent, trademark, copyright,
trade secret or other proprietary rights of others; (vi) to the Company’s knowledge, there is no third-party U.S. patent or published
U.S. patent application which contains claims for which an Interference Proceeding (as defined in 35 U.S.C. § 135) has been commenced
against any patent or patent application described in the Prospectus as being owned by or licensed to the Company; and (vii) the Company
and its Subsidiaries have complied with the terms of each agreement pursuant to which Intellectual Property has been licensed to the
Company or such Subsidiary, and all such agreements are in full force and effect, except, in the case of any of clauses (i)-(vii) above,
for any such infringement by third parties or any such pending or threatened suit, action, proceeding or claim as would not, individually
or in the aggregate, result in a Material Adverse Effect.
(xxiv)
Clinical Studies. The preclinical studies and tests and clinical trials described in the Prospectus were, and, if still pending,
are being conducted in all material respects in accordance with the experimental protocols, procedures and controls pursuant to, where
applicable, accepted professional and scientific standards for products or product candidates comparable to those being developed by
the Company; the descriptions of such studies, tests and trials, and the results thereof, contained in the Prospectus are accurate and
complete in all material respects; the Company is not aware of any tests, studies or trials not described in the Prospectus, the results
of which reasonably call into question the results of the tests, studies and trials described in the Prospectus; and the Company has
not received any written notice or correspondence from the FDA or any foreign, state or local Governmental Authority exercising comparable
authority or any institutional review board or comparable authority requiring the termination, suspension, clinical hold or material
modification of any tests, studies or trials.
(xxv)
Market Capitalization. At the time the Registration Statement was originally declared effective, and at the time the Company’s
most recent Annual Report on Form 10-K was filed with the Commission subsequent to such effective date, the Company met the then applicable
requirements for the use of Form S-3 under the Securities Act, including, but not limited to, General Instruction I.B.6 of Form S-3.
As of the date hereof, the Company meets the applicable requirements for the use of Form S-3 under the Securities Act pursuant to General
Instruction I.B.1 of Form S-3. The Company is not a shell company (as defined in Rule 405 under the Securities Act) and has not been
a shell company for at least 12 calendar months previously and if it has been a shell company at any time previously, has filed current
Form 10 information (as defined in Instruction I.B.6 of Form S-3) with the Commission at least 12 calendar months previously reflecting
its status as an entity that is not a shell company.
(xxvi)
FINRA Matters. The information provided to the Underwriters by the Company, its counsel, and its officers and directors for purposes
of the Underwriters’ compliance with applicable FINRA rules in connection with the offering of the Shares is true, complete, and
correct.
(xxvii)
No Material Defaults. Neither the Company nor any of the Subsidiaries has defaulted on any installment on indebtedness for borrowed
money or on any rental on one or more long-term leases, which defaults, individually or in the aggregate, would have a Material Adverse
Effect. The Company has not filed a report pursuant to Section 13(a) or 15(d) of the Exchange Act since the filing of its last Annual
Report on Form 10-K, indicating that it (i) has failed to pay any dividend or sinking fund installment on preferred stock or (ii) has
defaulted on any installment on indebtedness for borrowed money or on any rental on one or more long-term leases, which defaults, individually
or in the aggregate, would have a Material Adverse Effect.
(xxviii)
Certain Market Activities. Neither the Company, nor any of the Subsidiaries, nor any of their respective directors, officers or
controlling persons has taken, directly or indirectly, any action designed, or that has constituted or might reasonably be expected to
cause or result in, under the Exchange Act or otherwise, the stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Securities.
(xxix)
Broker/Dealer Relationships. Neither the Company nor any of the Subsidiaries (i) is required to register as a “broker”
or “dealer” in accordance with the provisions of the Exchange Act or (ii) directly or indirectly through one or more intermediaries,
controls or is a “person associated with a member” or “associated person of a member” (within the meaning set
forth in the FINRA Manual).
(xxx)
No Reliance. The Company has not relied upon the Underwriters or legal counsel for the Underwriters for any legal, tax or accounting
advice in connection with the offering and sale of the Securities.
(xxxi)
Taxes. The Company and each of its Subsidiaries have filed all federal, state, local and foreign tax returns which have been required
to be filed and paid all taxes shown thereon through the date hereof, to the extent that such taxes have become due and are not being
contested in good faith, except where the failure to so file or pay would not have a Material Adverse Effect. Except as otherwise disclosed
in or contemplated by the Registration Statement, the Time of Sale Disclosure Package or the Prospectus, no tax deficiency has been determined
adversely to the Company or any of its Subsidiaries which has had, or would have, individually or in the aggregate, a Material Adverse
Effect. The Company has no knowledge of any federal, state or other governmental tax deficiency, penalty or assessment which has been
or might be asserted or threatened against it which would have a Material Adverse Effect.
(xxxii)
Title to Real and Personal Property. Except as set forth in the Registration Statement, the Time of Sale Disclosure Package or
the Prospectus, the Company and its Subsidiaries have good and marketable title in fee simple to all items of real property owned by
them, good and valid title to all personal property described in the Registration Statement, the Time of Sale Disclosure Package or Prospectus
as being owned by them, in each case free and clear of all liens, encumbrances and claims, except those matters that (i) do not materially
interfere with the use made and proposed to be made of such property by the Company and any of its Subsidiaries or (ii) would not, individually
or in the aggregate, have a Material Adverse Effect. Any real or personal property described in the Registration Statement, the Time
of Sale Disclosure Package or Prospectus as being leased by the Company and any of its Subsidiaries is held by them under valid, existing
and enforceable leases, except for such leases that are not valid, existing and enforceable that would not be reasonably expected, individually
or in the aggregate, to have a Material Adverse Effect. Each of the properties of the Company and its Subsidiaries complies with all
applicable codes, laws and regulations (including, without limitation, building and zoning codes, laws and regulations and laws relating
to access to such properties), except if and to the extent disclosed in the Registration Statement, the Time of Sale Disclosure Package
or Prospectus or except for such failures to comply that would not, individually or in the aggregate, reasonably be expected to interfere
in any material respect with the use made and proposed to be made of such property by the Company and its Subsidiaries or otherwise have
a Material Adverse Effect. None of the Company or its subsidiaries has received from any Governmental Authorities any notice of any condemnation
of, or zoning change affecting, the properties of the Company and its Subsidiaries, and the Company knows of no such condemnation or
zoning change which is threatened, except for such that would not reasonably be expected to interfere in any material respect with the
use made and proposed to be made of such property by the Company and its Subsidiaries or otherwise have a Material Adverse Effect, individually
or in the aggregate.
(xxxiii)
Environmental Laws. Except as set forth in the Registration Statement, the Time of Sale Disclosure Package or the Prospectus,
the Company and its Subsidiaries (i) are in compliance with any and all applicable federal, state, local and foreign laws, rules, regulations,
decisions and orders relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants (collectively, “Environmental Laws”); (ii) have received and are in compliance with
all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses
as described in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus; and (iii) have not received written
notice of any actual or potential liability for the investigation or remediation of any disposal or release of hazardous or toxic substances
or wastes, pollutants or contaminants, except, in the case of any of clauses (i), (ii) or (iii) above, for any such failure to comply
or failure to receive required permits, licenses, other approvals or liability as would not, individually or in the aggregate, have a
Material Adverse Effect.
(xxxiv)
Disclosure Controls. The Company and each of its Subsidiaries maintain systems of internal accounting controls designed to provide
reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii)
transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability;
(iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to
any differences. The Company’s internal control over financial reporting is effective and the Company is not aware of any material
weaknesses in its internal control over financial reporting (in each case, other than as set forth in the Prospectus). The Company has
established disclosure controls and procedures (as defined in Exchange Act Rules 13a-15 and 15d-15) for the Company and designed such
disclosure controls and procedures to provide reasonable assurance that material information relating to the Company and each of its
Subsidiaries is made known to the certifying officers by others within those entities, particularly during the period in which the Company’s
Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may be, is being prepared. The Company’s certifying officers
have evaluated the effectiveness of the Company’s disclosure controls and procedures as of the end of the Company’s most
recently completed fiscal quarter (such date, the “Evaluation Date”). The Company presented in its Form 10-Q
or Form 10-K for the fiscal period ended as of the Evaluation Date the conclusions of the certifying officers about the effectiveness
of the disclosure controls and procedures as of such date based on their evaluations of such controls and procedures and the disclosure
controls and procedures were effective as of such date. Since the Evaluation Date, there have been no significant changes in the Company’s
internal controls (as such term is defined in Item 307(b) of Regulation S-K under the Securities Act) or, to the Company’s knowledge,
in other factors that could significantly affect the Company’s internal controls (in each case, other than as set forth in the
Registration Statement, the Time of Sale Disclosure Package and the Prospectus).
(xxxv)
Sarbanes-Oxley. There is and has been no failure on the part of the Company or any of the Company’s directors or officers,
in their capacities as such, to comply in all material respects with any applicable provisions of the Sarbanes-Oxley Act and the rules
and regulations promulgated thereunder. Each of the principal executive officer and the principal financial officer of the Company (or
each former principal executive officer of the Company and each former principal financial officer of the Company as applicable) has
made all certifications required by Sections 302 and 906 of the Sarbanes-Oxley Act with respect to all reports, schedules, forms, statements
and other documents required to be filed by it or furnished by it to the Commission. For purposes of the preceding sentence, “principal
executive officer” and “principal financial officer” shall have the meanings given to such terms in the Sarbanes-Oxley
Act.
(xxxvi)
Finder’s Fees. Neither the Company nor any of the Subsidiaries has incurred any liability for any finder’s fees, brokerage
commissions or similar payments in connection with the transactions herein contemplated, except as may otherwise exist with respect to
the Underwriters pursuant to this Agreement or as disclosed in writing to the Representatives on or prior to the date hereof.
(xxxvii)
Labor Disputes. No labor disturbance by or dispute with employees of the Company or any of its Subsidiaries exists or, to the
knowledge of the Company, is threatened which would result in a Material Adverse Effect.
(xxxviii)
Investment Company Act. Neither the Company nor any of the Subsidiaries is or, after giving effect to the offering and sale of
the Securities, will be an “investment company” or an entity “controlled” by an “investment company,”
as such terms are defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”).
(xxxix)
Operations. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance with applicable
financial record keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money
laundering statutes of all jurisdictions to which the Company or its Subsidiaries are subject, the rules and regulations thereunder and
any related or similar rules, regulations or guidelines, issued, administered or enforced by any Governmental Authority (collectively,
the “Money Laundering Laws”); and no action, suit or proceeding by or before any Governmental Authority involving
the Company or any of its Subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(xl)
Off-Balance Sheet Arrangements. There are no transactions, arrangements and other relationships between and/or among the Company,
and/or any of its affiliates and any unconsolidated entity, including, but not limited to, any structured finance, special purpose or
limited purpose entity (each, an “Off-Balance Sheet Transaction”) that could reasonably be expected to affect
materially the Company’s liquidity or the availability of or requirements for its capital resources, including those Off-Balance
Sheet Transactions described in the Commission’s Statement about Management’s Discussion and Analysis of Financial Conditions
and Results of Operations (Release Nos. 33-8056; 34-45321; FR-61), required to be described in the Prospectus which have not been described
as required.
(xli)
ERISA. To the knowledge of the Company, each material employee benefit plan, within the meaning of Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”), that is maintained, administered or contributed
to by the Company or any of its affiliates for employees or former employees of the Company and any of its Subsidiaries has been maintained
in material compliance with its terms and the requirements of any applicable statutes, orders, rules and regulations, including but not
limited to ERISA and the Internal Revenue Code of 1986, as amended (the “Code”); no prohibited transaction,
within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred which would result in a material liability to the
Company with respect to any such plan excluding transactions effected pursuant to a statutory or administrative exemption; and for each
such plan that is subject to the funding rules of Section 412 of the Code or Section 302 of ERISA, no “accumulated funding deficiency”
as defined in Section 412 of the Code has been incurred, whether or not waived, and the fair market value of the assets of each such
plan (excluding for these purposes accrued but unpaid contributions) exceeds the present value of all benefits accrued under such plan
determined using reasonable actuarial assumptions.
(xlii)
Forward-Looking Statements. No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section
21E of the Exchange Act) (a “Forward-Looking Statement”) contained in the Registration Statement, the Time
of Sale Disclosure Package and the Prospectus has been made or reaffirmed without a reasonable basis or has been disclosed other than
in good faith.
(xliii)
Margin Rules. Neither the issuance, sale and delivery of the Securities nor the application of the proceeds thereof by the Company
as described in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus will violate Regulation T, U or X
of the Board of Governors of the Federal Reserve System or any other regulation of such Board of Governors.
(xliv)
Insurance. The Company and each of its Subsidiaries carry, or are covered by, insurance in such amounts and covering such risks
as the Company and each of its Subsidiaries reasonably believe are adequate for the conduct of their properties and as is customary for
companies engaged in similar businesses in similar industries.
(xlv)
No Improper Practices. (i) Neither the Company nor the Subsidiaries, nor any director, officer, or employee of the Company or
any Subsidiary nor, to the Company’s knowledge, any agent, affiliate or other person acting on behalf of the Company or any Subsidiary
has, in the past five years, made any unlawful contributions to any candidate for any political office (or failed fully to disclose any
contribution in violation of applicable law) or made any contribution or other payment to any official of, or candidate for, any federal,
state, municipal, or foreign office or other person charged with similar public or quasi-public duty in violation of any applicable law
or of the character required to be disclosed in the Prospectus; (ii) no relationship, direct or indirect, exists between or among the
Company or any Subsidiary or any affiliate of any of them, on the one hand, and the directors, officers and stockholders of the Company
or any Subsidiary, on the other hand, that is required by the Securities Act to be described in the Registration Statement, the Time
of Sale Disclosure Package and the Prospectus that is not so described; (iii) no relationship, direct or indirect, exists between or
among the Company or any Subsidiary or any affiliate of them, on the one hand, and the directors, officers, or stockholders of the Company
or any Subsidiary, on the other hand, that is required by the rules of FINRA to be described in the Registration Statement, the Time
of Sale Disclosure Package and the Prospectus that is not so described; (iv) except as described in the Registration Statement, the Time
of Sale Disclosure Package and the Prospectus, there are no material outstanding loans or advances or material guarantees of indebtedness
by the Company or any Subsidiary to or for the benefit of any of their respective officers or directors or any of the members of the
families of any of them; and (v) the Company has not offered, or caused any placement agent to offer, Common Stock to any person with
the intent to influence unlawfully (A) a customer or supplier of the Company or any Subsidiary to alter the customer’s or supplier’s
level or type of business with the Company or any Subsidiary or (B) a trade journalist or publication to write or publish favorable information
about the Company or any Subsidiary or any of their respective products or services, and, (vi) neither the Company nor any Subsidiary
nor any director, officer or employee of the Company or any Subsidiary nor, to the Company’s knowledge, any agent, affiliate or
other person acting on behalf of the Company or any Subsidiary has (A) violated or is in violation of any applicable provision of the
U.S. Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption law (collectively, “Anti-Corruption
Laws”), (B) promised, offered, provided, attempted to provide or authorized the provision of anything of value, directly or
indirectly, to any person for the purpose of obtaining or retaining business, influencing any act or decision of the recipient, or securing
any improper advantage; or (C) made any payment of funds of the Company or any Subsidiary or received or retained any funds in violation
of any Anti-Corruption Laws.
(xlvi)
Status Under the Securities Act. The Company was not and is not an ineligible issuer as defined in Rule 405 under the Securities
Act at the times specified in Rules 164 and 433 under the Securities Act in connection with the offering of the Securities.
(xlvii)
No Misstatement or Omission in an Issuer Free Writing Prospectus. Each Issuer Free Writing Prospectus, as of its issue date and
as of each Applicable Time (as defined in Section 23 below), did not, does not and will not include any information that conflicted,
conflicts or will conflict with the information contained in the Registration Statement, the Time of Sale Disclosure Package or the Prospectus,
including any incorporated document deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does
not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information
furnished to the Company by the Underwriters specifically for use therein.
(xlviii)
No Conflicts. Neither the execution of this Agreement, nor the issuance, offering or sale of the Securities, nor the consummation
of any of the transactions contemplated herein and therein, nor the compliance by the Company with the terms and provisions hereof and
thereof will (x) violate, or will result in a breach of, any of the terms and provisions of, or has constituted or will constitute a
default under, or has resulted in or will result in the creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company pursuant to the terms of any contract or other agreement to which the Company may be bound or to which any of the
property or assets of the Company is subject, except for any such violation, breach, default or result as has been waived, or (y) violate
any Law applicable to the Company, except (i) in the case of clause (x), such conflicts, breaches or defaults as may have been waived
and (ii) in the case of clauses (x) and (y), such conflicts, breaches and defaults that would not have a Material Adverse Effect; nor
will such action result in any violation of the provisions of the organizational or governing documents of the Company.
(xlix)
Sanctions.
(A)
The Company represents that, neither the Company nor any of its Subsidiaries (collectively, the “Entity”) or
any director, officer, or, to the knowledge of the Company, employee, agent, affiliate or representative of the Entity, is a government,
individual, or entity (in this paragraph (xlix), “Person”) that is, or is owned or controlled by a Person that
is:
(1)
the subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”),
the United Nations Security Council, the European Union, His Majesty’s Treasury, or other relevant sanctions authorities, including,
without limitation, designation on OFAC’s Specially Designated Nationals and Blocked Persons List or OFAC’s Foreign Sanctions
Evaders List (as amended, collectively, “Sanctions”), nor
(2)
located, organized or resident in a country or territory that is the subject of Sanctions that broadly prohibit dealings with that country
or territory (including, without limitation, Cuba, Iran, North Korea, Syria, the so-called Donetsk People’s Republic, the so-called
Luhansk People’s Republic and the Crimea Region of the Ukraine) (the “Sanctioned Countries”)).
(B)
The Entity represents and covenants that it will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or
otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(1)
to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding
or facilitation, is the subject of Sanctions or is a Sanctioned Country; or
(2)
in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether
as underwriter, advisor, investor or otherwise).
(C)
The Entity represents and covenants that, except as detailed in the Registration Statement, the Time of Sale Disclosure Package and the
Prospectus, for the past five years, it has not engaged in, is not now engaging in, and will not engage in, any dealings or transactions
with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions or
is or was a Sanctioned Country.
(l)
Stock Transfer Taxes. On the Closing Date, all stock transfer or other taxes (other than income taxes) which are required to be
paid in connection with the sale and transfer of the Securities to be sold hereunder will be, or will have been, fully paid or provided
for by the Company and all laws imposing such taxes will be or will have been fully complied with.
(li)
Compliance with Laws. Each of the Company and its Subsidiaries: (A) is and at all times during the past three years has been in
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 its Subsidiaries (“Applicable Laws”), except as could not, individually or
in the aggregate, reasonably be expected to result in a Material Adverse Effect; (B) has not received any FDA Form 483, notice of adverse
finding, warning letter, untitled letter or other written correspondence or written notice from the FDA or any other Governmental Authority
alleging or asserting noncompliance with any Applicable Laws or any licenses, certificates, approvals, clearances, authorizations, permits
and supplements or amendments thereto required by any such Applicable Laws (“Authorizations”); (C) possesses
all Authorizations and such Authorizations are valid and in full force and effect and are not in violation of any term of any such Authorizations,
except as could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect; (D) has not received
written notice of any claim, action, suit, proceeding, hearing, enforcement, investigation, arbitration or other action from any Governmental
Authority 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 considering any such claim, litigation, arbitration, action,
suit, investigation or proceeding; (E) has not received written notice that any Governmental Authority 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 considering
such action; (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 on the date filed
(or were corrected or supplemented by a subsequent submission); and (G) has not, either voluntarily or involuntarily, initiated, conducted,
or issued or caused to be initiated, conducted or issued, any recall, market withdrawal or replacement, safety alert, post sale warning,
“dear healthcare provider” letter, or other notice or action relating to the alleged lack of safety or efficacy of any product
or any alleged product defect or violation, except as could not, individually or in the aggregate, reasonably be expected to result in
a Material Adverse Effect, and, to the Company’s knowledge, no third party has initiated, conducted or intends to initiate any
such notice or action.
(lii)
Statistical and Market-Related Data. The statistical, demographic and market-related data included in the Registration Statement,
the Time of Sale Disclosure Package and Prospectus are based on or derived from sources that the Company believes to be reliable and
accurate or represent the Company’s good faith estimates that are made on the basis of data derived from such sources.
(liii)
Cybersecurity. The Company and its Subsidiaries’ information technology assets and equipment, computers, systems, networks,
hardware, software, websites, applications, and databases (collectively, “IT Systems”) are materially adequate
for, and operate and perform in all material respects as required in connection with, the operation of the business of the Company as
currently conducted, free and clear of all material bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants.
The Company and its Subsidiaries have implemented and maintained commercially reasonable physical, technical and administrative controls,
policies, procedures, and safeguards to maintain and protect their material confidential information and the integrity, continuous operation,
redundancy and security of all IT Systems and data, including all “Personal Data” (defined below) and all sensitive, confidential
or regulated data (“Confidential Data”) used in connection with their businesses. “Personal Data”
means (i) a natural person’s name, street address, telephone number, e-mail address, photograph, social security number or tax
identification number, driver’s license number, passport number, credit card number, bank information, or customer or account number;
(ii) any information which would qualify as “personally identifying information” under the Federal Trade Commission Act,
as amended; (iii) “personal data” as defined by GDPR; (iv) any information which would qualify as “protected health
information” under the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology
for Economic and Clinical Health Act (collectively, “HIPAA”); (v) any “personal information” as
defined by the California Consumer Privacy Act (“CCPA”); and (vi) any other piece of information that allows
the identification of such natural person, or his or her family, or permits the collection or analysis of any data related to an identified
person’s health or sexual orientation. There have been no material breaches, violations, outages or unauthorized uses of or accesses
to same, except for those that have been remedied without material cost or liability or the duty to notify any other person, nor are
any such incidents under internal review or investigations relating to the same. The Company and its Subsidiaries are presently in material
compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental
or regulatory authority, internal policies and contractual obligations relating to the privacy and security of IT Systems, Confidential
Data, and Personal Data and to the protection of such IT Systems, Confidential Data, and Personal Data from unauthorized use, access,
misappropriation or modification.
(liv)
Compliance with Data Privacy Laws. The Company and its Subsidiaries are, and at all prior times were, in material compliance with
all applicable state and federal data privacy and security laws and regulations, including without limitation HIPAA, CCPA, and the European
Union General Data Protection Regulation (“GDPR”) (EU 2016/679) (collectively, the “Privacy Laws”).
To ensure compliance with the Privacy Laws, the Company has in place policies and procedures, and complies with and takes appropriate
steps to ensure compliance, in each case in all material respects, with its policies and procedures, relating to data privacy and security
and the collection, storage, use, processing, disclosure, handling, and analysis of Personal Data and Confidential Data (the “Policies”).
The Company has at all times made all material disclosures to users or customers required by applicable laws and regulatory rules or
requirements, and none of such disclosures made or contained in any Policy have been inaccurate or in violation of any applicable laws
and regulatory rules or requirements in any material respect. The Company further certifies that neither it nor any Subsidiary: (i) has
received written notice of any actual or potential liability under or relating to, or actual or potential violation of, any of the Privacy
Laws, and has no knowledge of any event or condition that would reasonably be expected to result in any such notice; (ii) is currently
conducting or paying for, in whole or in part, any investigation, remediation, or other corrective action pursuant to any Privacy Law;
or (iii) is a party to any order, decree, or agreement that imposes any obligation or liability under any Privacy Law.
(lv)
Emerging Growth Company Status. From the time of the initial filing of the Company’s first registration statement with the
Commission through the date hereof, the Company has been and is an “emerging growth company,” as defined in Section 2(a)
of the Securities Act (an “Emerging Growth Company”).
(b)
Effect of Certificates. Any certificate signed by any officer of the Company and delivered to the Representatives or to
counsel for the Underwriters shall be deemed a representation and warranty by the Company to each Underwriter as to the matters covered
thereby.
3.
Purchase, Sale and Delivery of Securities.
(a)
Securities. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and
conditions herein set forth, the Company agrees to issue and sell the Securities, to the several Underwriters, and each Underwriter agrees,
severally and not jointly, to purchase from the Company the number of Securities set forth opposite the name of such Underwriter in Schedule
I hereto. The purchase price for each Security shall be $0.94 per share. The obligation of each Underwriter to the Company shall be to
purchase from the Company that number of Securities (to be adjusted by the Representatives to avoid fractional shares) which represents
the same proportion of the number of Securities to be sold by the Company pursuant to this Agreement as the number of Securities set
forth opposite the name of such Underwriter in Schedule I hereto represents to the total number of Securities to be purchased by all
Underwriters pursuant to this Agreement. In making this Agreement, each Underwriter is contracting severally and not jointly; except
as provided in paragraph (c) of this Section 3 and in Section 8 hereof, the agreement of each Underwriter is to purchase only the respective
number of Securities specified in Schedule I.
The
Securities will be delivered by the Company to the Representatives for the accounts of the several Underwriters against payment of the
purchase price therefor by wire transfer of same day funds payable to the order of the Company, as appropriate, at the offices of Duane
Morris LLP, 22 Vanderbilt, 335 Madison Avenue, 23rd Floor, New York, NY 10017, or such other location as may be mutually acceptable,
at 10:00 a.m. Eastern time on the first (or if the Time of Sale occurs after 4:30 p.m. Eastern time, the second) full business day following
the date hereof, or at such other time and date as the Representatives and the Company determine pursuant to Rule 15c6-1(a) under the
Exchange Act, such time and date of delivery being herein referred to as the “Closing Date.”
(b)
Delivery. Delivery of the Securities will be made by credit through full fast transfer to the accounts at the Depository
Trust Company designated by the Representatives. In the event that the Securities are not delivered to the Representatives by 2:30 p.m.,
New York City time, on the Closing Date, the Company will return payment of the full purchase price to the Representatives via same day
funds by 4:30 p.m., New York City time. The Company shall remain liable to the Representatives for the full amount of the purchase price
and any costs associated with recovering the purchase price until the full amount has been received by the Representatives.
(c)
Purchase by Representatives on Behalf of Underwriters. It is understood that the Representatives, individually and not
as Representatives of the several Underwriters, may (but shall not be obligated to) make payment to the Company, on behalf of any Underwriter
for the Securities to be purchased by such Underwriter. Any such payment by the Representatives shall not relieve any such Underwriter
of any of its obligations hereunder. Nothing herein contained shall constitute any of the Underwriters an unincorporated association
or partner with the Company.
4.
Covenants.
(a)
Covenants of the Company. The Company covenants and agrees with the several Underwriters as follows:
(i)
Required Filings. During the period beginning on the date hereof and ending on the later of the Closing Date or such date,
as in the opinion of counsel for the Underwriters, the Prospectus is no longer required by law to be delivered (assuming the absence
of Rule 172 under the Securities Act), in connection with sales by an Underwriter or dealer (the “Prospectus Delivery Period”),
prior to amending or supplementing the Registration Statement (including any Rule 462(b) Registration Statement), the Time of Sale Disclosure
Package or the Prospectus, the Company shall furnish to the Representatives for review a copy of each such proposed amendment or supplement,
and the Company shall not file any such proposed amendment or supplement to which the Representatives or counsel to the Underwriters
reasonably object. Subject to this Section 4(a)(i), immediately following execution of this Agreement, the Company will prepare the Prospectus
containing the Rule 430B Information and other selling terms of the Securities, the plan of distribution thereof and such other information
as may be required by the Securities Act or the Rules and Regulations or as the Representatives and the Company may deem appropriate,
and if requested by the Representatives, an issuer free writing prospectus containing the selling terms of the Securities and such other
information as the Company and the Representatives may deem appropriate, and will file or transmit for filing with the Commission, in
accordance with Rule 424(b) or Rule 433, as the case may be, copies of the Prospectus and each issuer free writing prospectus.
(ii)
Notification of Certain Commission Actions. During the Prospectus Delivery Period, the Company shall promptly advise the
Representatives in writing (A) of the receipt of any comments of, or requests for additional or supplemental information from, the Commission,
(B) of the time and date of any filing of any post-effective amendment to the Registration Statement or any amendment or supplement to
the Time of Sale Disclosure Package or the Prospectus, (C) of the time and date that any post-effective amendment to the Registration
Statement becomes effective, (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration
Statement or any post-effective amendment thereto or of any order preventing or suspending its use or the use of the Time of Sale Disclosure
Package, the Prospectus or any issuer free writing prospectus, or (E) of any proceedings to remove, suspend or terminate from listing
or quotation the Common Stock from any securities exchange upon which it is listed for trading or included or designated for quotation,
or of the threatening or initiation of any proceedings for any of such purposes. If the Commission shall enter any such stop order at
any time, the Company will use its best efforts to obtain the lifting of such order at the earliest possible moment. Additionally, the
Company agrees that it shall comply with the provisions of Rules 424(b), 430A and 430B, as applicable, under the Securities Act and will
use its reasonable efforts to confirm that any filings made by the Company under Rule 424(b), Rule 433 or Rule 462 were received in a
timely manner by the Commission (without reliance on Rule 424(b)(8) or Rule 164(b)).
(iii)
Continued Compliance with Securities Laws. (A) During the Prospectus Delivery Period, the Company will comply as far as
it is able with all requirements imposed upon it by the Securities Act, as now and hereafter amended, and by the Rules and Regulations,
as from time to time in force, and by the Exchange Act so far as necessary to permit the continuance of sales of or dealings in the Securities
as contemplated by the provisions hereof, the Time of Sale Disclosure Package and the Prospectus. If during such period any event occurs
as a result of which the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the Time of Sale Disclosure
Package) would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances then existing, not misleading, or if during such period it is necessary or appropriate in the opinion
of the Company or its counsel or the Representatives or counsel to the Underwriters to amend the Registration Statement or supplement
the Prospectus (or, if the Prospectus is not yet available to prospective purchasers, the Time of Sale Disclosure Package) to comply
with the Securities Act or to file under the Exchange Act any document which would be deemed to be incorporated by reference in the Prospectus
in order to comply with the Securities Act or the Exchange Act, the Company promptly will (x) notify the Representatives of such untrue
statement or omission, (y) amend the Registration Statement or supplement the Prospectus (or, if the Prospectus is not yet available
to prospective purchasers, the Time of Sale Disclosure Package) or file such document (at the expense of the Company) so as to correct
such statement or omission or effect such compliance, and (z) notify the Representatives when any amendment to the Registration Statement
is filed or becomes effective or when any supplement to the Prospectus (or, if the Prospectus is not yet available to prospective purchasers,
the Time of Sale Disclosure Package) is filed.
(A)
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
the Prospectus or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not misleading,
the Company (x) has promptly notified or promptly will notify the Representatives of such conflict, untrue statement or omission, (y)
has promptly amended or will promptly amend or supplement, at its own expense, such issuer free writing prospectus to eliminate or correct
such conflict, untrue statement or omission, and (2) has notified or promptly will notify the Representatives when such amendment or
supplement was or is filed with the Commission where so required to be filed.
(B)
If immediately prior to the third anniversary of the initial effective date of the Registration Statement, any of the Securities remain
unsold by the Underwriters, the Company will prior to that third anniversary file, if it has not already done so, a new shelf registration
statement relating to the Securities, in a form satisfactory to the Representatives, will use its best efforts to cause such registration
statement to be declared effective within 180 days after that third anniversary, and will take all other action necessary or appropriate
to permit the public offering and sale of the Securities to continue as contemplated in the expired registration statement relating to
the Securities. References herein to the Registration Statement shall include such new shelf registration statement.
(iv)
Blue Sky Qualifications. The Company shall take or cause to be taken all necessary action to qualify the Securities for
sale under the securities laws of such jurisdictions as the Representatives reasonably designate and to continue such qualifications
in effect so long as required for the distribution of the Securities, except that the Company shall not be required in connection therewith
to qualify as a foreign corporation (where not otherwise required), subject itself to taxation in any jurisdiction where not otherwise
required, or to execute a general consent to service of process in any jurisdiction (where not otherwise required).
(v)
Provision of Documents. The Company will furnish, at its own expense, to the Underwriters and counsel for the Underwriters
copies of the Registration Statement (three of which will be signed and will include all consents and exhibits filed therewith), and
to the Underwriters and any dealer the Time of Sale Disclosure Package, the Prospectus, any issuer free writing prospectus, and all amendments
and supplements to such documents, in each case as soon as available and in such quantities as the Representatives may from time to time
reasonably request.
(vi)
Rule 158. The Company will make generally available to its security holders as soon as practicable, but in no event later
than 15 months after the end of the Company’s current fiscal quarter, an earnings statement (which need not be audited) covering
a 12-month period that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations.
(vii)
Payment and Reimbursement of Expenses. The Company, whether or not the transactions contemplated hereunder are consummated
or this Agreement is terminated, will pay or cause to be paid (A) all expenses (including transfer taxes allocated to the respective
transferees) incurred in connection with the delivery to the Underwriters of the Securities, (B) all expenses and fees (including, without
limitation, fees and expenses of the Company’s accountants and counsel but, except as otherwise provided below, not including fees
of the Underwriters’ counsel) in connection with the preparation, printing, filing, delivery, and shipping of the Registration
Statement (including the financial statements therein and all amendments, schedules, and exhibits thereto), the Securities, the Time
of Sale Disclosure Package, the Prospectus, any issuer free writing prospectus and any amendment thereof or supplement thereto, and the
printing, delivery, and shipping of this Agreement and other underwriting documents, including Blue Sky Memoranda (covering the states
and other applicable jurisdictions), (C) all filing fees and fees and the reasonable disbursements of the Underwriters’ counsel
incurred in connection with the qualification of the Securities for offering and sale by the Underwriters or by dealers under the securities
or blue sky laws of the states and other jurisdictions which the Representatives shall designate, (D) the fees and expenses of any transfer
agent or registrar, (E) the filing fees and fees and disbursements of Underwriters’ counsel incident to any required review and
approval by FINRA of the terms of the sale of the Securities, (F) listing fees, if any, (G) the cost and expenses of the Company relating
to investor presentations or any “road show” undertaken in connection with marketing of the Securities, including, without
limitation, expenses associated with the preparation or dissemination of any electronic road show, expenses associated with the production
of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the
prior approval of the Company, travel and lodging expenses of the representatives and officers of the Company and, with the prior approval
of the Company, any such consultants, and 50% of the cost of any aircraft chartered in connection with the road show (the remaining 50%
to be paid for by the Underwriters), (H) the reasonable fees and disbursements of counsel to the Underwriters in connection with the
transactions contemplated in this Agreement, and (I) all other costs and expenses of the Company incident to the performance of its obligations
hereunder that are not otherwise specifically provided for herein; provided, however, that such costs and expenses provided for in clauses
(C), (E) and (H) shall not exceed $75,000 in the aggregate.
(viii)
Use of Proceeds. The Company will apply the net proceeds from the sale of the Securities to be sold by it hereunder for
the purposes set forth in the Time of Sale Disclosure Package and in the Prospectus.
(ix)
Company Lock Up. The Company will not, without the prior written consent of the Representatives, from the date of execution
of this Agreement and continuing to and including the date 45 days after the date of the Prospectus (the “Lock-Up Period”),
(i) offer, pledge, announce the intention to sell, 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 or otherwise transfer or dispose of, directly or indirectly, any
shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock or (ii) enter into any swap
or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any
such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash
or otherwise, except (A) to the Underwriters pursuant to this Agreement, (B) the issuance by the Company of shares of Common Stock upon
the exercise of any stock options or warrants, or upon the conversion, or in payment of dividends or interest on, any shares of preferred
stock or convertible notes of the Company, outstanding as of the date hereof and disclosed in the Registration Statement, the Time of
Sale Disclosure Package and the Prospectus; (C) the issuance by the Company of shares of Common Stock or securities convertible into
shares of Common Stock pursuant to the Company’s equity incentive plans in effect on the date hereof and described in the Registration
Statement, the Time of Sale Disclosure Package and the Prospectus; (D) the filing of a registration statement on Form S-8 with respect
to the Company’s equity incentive plans in effect on the date hereof and described in the Registration Statement, the Time of Sale
Disclosure Package and the Prospectus; or (E) the sale or issuance of or entry into an agreement providing for the issuance of shares
of Common Stock, or any security convertible into or exercisable for shares of Common Stock, in connection with the acquisition by the
Company of the securities, business or assets of another person or entity or pursuant to an employee benefit plan assumed by the Company
in connection with such acquisition, or in connection with joint ventures, commercial relationships or other strategic transactions;
provided, that the aggregate number of shares of Common Stock that the Company may sell or issue or agree to sell or issue pursuant to
this clause (E) shall not exceed 5% of the total number of shares of Common Stock issued and outstanding immediately following the completion
of the transactions contemplated by this Agreement, and provided further, that the Company shall cause each recipient of such shares
or other securities to execute and deliver to the Representatives, on or prior to such issuance, a Lock-Up Agreement and issue stop order
restrictions to its transfer agent and registrar for the Common Stock with respect to any transaction or contemplated transaction that
would constitute a breach of or default under the applicable Lock-Up Agreement.
(x)
Stockholder Lock-Ups. The Company has caused to be delivered to the Representatives prior to the date of this Agreement
a letter, in the form of Exhibit A hereto (the “Lock-Up Agreement”), from each director and executive officer
listed on Schedule IV. The Company will enforce the terms of each Lock-Up Agreement and issue stop-transfer instructions to the transfer
agent for the Common Stock with respect to any transaction or contemplated transaction that would constitute a breach of or default under
the applicable Lock-Up Agreement.
(xi)
No Market Stabilization or Manipulation. The Company has not taken and will not take, directly or indirectly, any action
designed to or which might reasonably be expected to cause or result in, or which has constituted, the stabilization or manipulation
of the price of any security of the Company to facilitate the sale or resale of the Securities.
(xii)
SEC Reports. During the Prospectus Delivery Period, the Company will file on a timely basis with the Commission such periodic
and special reports as required by the Rules and Regulations.
(xiii)
Sarbanes-Oxley. To the extent legally required, the Company and each of its Subsidiaries will comply with all provisions
of the Sarbanes-Oxley Act.
(xiv)
Free Writing Prospectuses. The Company represents and agrees that, unless it obtains the prior written consent of the Representatives,
and each Underwriter severally represents and agrees that, unless it obtains the prior written consent of the Company and the Representatives,
it has not made and will not make any offer relating to the Securities that would constitute an issuer free writing prospectus or that
would otherwise constitute a free writing prospectus required to be filed with the Commission; provided that the prior written consent
of the parties hereto shall be deemed to have been given in respect of the free writing prospectuses included in Schedule II. Any such
free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “Permitted Free
Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing
Prospectus as an issuer free writing prospectus, and has complied and will comply with the requirements of Rules 164 and 433 of the Rules
and Regulations applicable to any Permitted Free Writing Prospectus. The Company agrees not to take any action that would result in the
Company being required to file with the Commission under Rule 433(d) a free writing prospectus prepared by or on behalf of the Company
that otherwise would not be required to be filed by the Company thereunder, but for the action of the Company. Each Underwriter severally
represents and agrees that, (A) unless it obtains the prior written consent of the Company and the Representatives, it has not distributed,
and will not distribute any Written Testing-the-Waters Communication other than those listed on Schedule V, and (B) any Testing-the-Waters
Communication undertaken by it was with entities that are qualified institutional buyers with the meaning of Rule 144A under the Act
or institutions that are accredited investors within the meaning of Rule 501 under the Act.
5.
Conditions of Underwriters’ Obligations. The obligations of the several Underwriters hereunder are subject to the
accuracy, as of the date hereof and at the Closing Date, of and compliance with all representations, warranties and agreements of the
Company contained herein, to the performance by the Company of its respective obligations hereunder and to the following additional conditions:
(a)
Required Filings; Absence of Certain Commission Actions. If filing of the Prospectus, or any amendment or supplement thereto,
or any issuer free writing prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed
the Prospectus (or such amendment or supplement) or such issuer free writing prospectus with the Commission in the manner and within
the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no
stop order suspending the effectiveness of the Registration Statement or any part thereof, any Rule 462(b) Registration Statement, or
any amendment thereof, nor suspending or preventing the use of the Time of Sale Disclosure Package, the Prospectus or any issuer free
writing prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened;
any request of the Commission for additional information (to be included in the Registration Statement, the Time of Sale Disclosure Package,
the Prospectus, any issuer free writing prospectus or otherwise) shall have been complied with to the Representatives’ satisfaction.
(b)
Continued Compliance with Securities Laws. No Underwriter shall have advised the Company that (i) the Registration Statement
or any amendment thereof or supplement thereto contains an untrue statement of a material fact which, in the Representatives’ opinion,
is material or omits to state a material fact which, in the Representatives’ opinion, is required to be stated therein or necessary
to make the statements therein not misleading, or (ii) the Time of Sale Disclosure Package or the Prospectus, or any amendment thereof
or supplement thereto, or any issuer free writing prospectus contains an untrue statement of fact which, in the Representatives’
opinion, is material, or omits to state a fact which, in the Representatives’ opinion, is material and is required to be stated
therein, or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading.
(c)
Absence of Certain Events. Except as contemplated in the Time of Sale Disclosure Package and in the Prospectus, subsequent
to the respective dates as of which information is given in the Time of Sale Disclosure Package, neither the Company nor any of its Subsidiaries
shall have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared
or paid any dividends or made any distribution of any kind with respect to its capital stock; and there shall not have been any change
in the capital stock (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the
exercise of outstanding options or warrants or conversion of convertible securities), or any material change in the short-term or long-term
debt of the Company (other than as a result of the conversion of convertible securities), or any issuance of options, warrants, convertible
securities or other rights to purchase the capital stock of the Company or any of its Subsidiaries, or any Material Adverse Effect or
any development involving a prospective Material Adverse Effect (whether or not arising in the ordinary course of business), or any loss
by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred by the Company or any Subsidiary,
the effect of which, in any such case described above, in the Representatives’ judgment, makes it impractical or inadvisable to
offer or deliver the Securities on the terms and in the manner contemplated in the Time of Sale Disclosure Package and in the Prospectus.
(d)
No Downgrade. On or after the Time of Sale (i) no downgrading shall have occurred in the rating accorded any of the Company’s
securities by any “nationally recognized statistical organization,” as that term is defined by the Commission for purposes
of Rule 436(g)(2) under the Securities Act, and (ii) no such organization shall have publicly announced that it has under surveillance
or review, with possible negative implications, its rating of any of the Company’s securities or;
(e)
Opinion of Company Counsel. On the Closing Date, there shall have been furnished to the Representatives, as Representatives
of the several Underwriters, the opinion and negative assurance letter of Graubard Miller, counsel for the Company, dated the Closing
Date and addressed to the Representatives and in such form and substance as is reasonably satisfactory to the Representatives.
(f)
Opinion of Intellectual Property Counsel. On the Closing Date, there shall have been furnished to the Representatives,
as Representatives of the several Underwriters, the opinion of Peter Sleman, intellectual property counsel for the Company, dated the
Closing Date and addressed to the Representatives in such form and substance as is reasonably satisfactory to the Representatives.
(g)
Opinion of Underwriters’ Counsel. On the Closing Date, there shall have been furnished to the Representatives, as
Representatives of the several Underwriters, the opinion and negative assurance letter from Duane Morris LLP, counsel for the several
Underwriters, dated the Closing Date and addressed to the Representatives, with respect to the formation of the Company, the validity
of the Securities, the Registration Statement, the Time of Sale Disclosure Package, the Prospectus and other related matters as the Representatives
reasonably may request, and such counsel shall have received such papers and information as they request to enable them to pass upon
such matters.
(h)
Comfort Letters. On the date hereof, on the effective date of any post-effective amendment to the Registration Statement
filed after the date hereof and on the Closing Date the Representatives, as Representatives of the several Underwriters, shall have received
accountant’s “comfort” letters of the Accountants, dated such date and addressed to the Representatives, in form and
substance satisfactory to the Representatives.
(i)
Officers’ Certificate. On the Closing Date, there shall have been furnished to the Representatives, as Representatives
of the Underwriters, a certificate, dated the Closing Date and addressed to the Representatives, signed by the chief executive officer
and by the chief financial officer of the Company, to the effect that:
(i)
The representations and warranties of the Company in this Agreement are true and correct as if made at and as of the Closing Date, and
the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior
to the Closing Date;
(ii)
No stop order or other order suspending the effectiveness of the Registration Statement or any part thereof or any amendment thereof
or the qualification of the Securities for offering or sale nor suspending or preventing the use of the Time of Sale Disclosure Package,
the Prospectus or any issuer free writing prospectus, has been issued, and no proceeding for that purpose has been instituted or, to
the best of their knowledge, is contemplated by the Commission or any state or regulatory body; and
(iii)
Affirms the accuracy of the matters set forth in subsection (c) of this Section 5.
(j)
Lock-Up Agreement. The Underwriters shall have received all of the Lock-Up Agreements referenced in Section 4 and the Lock-Up
Agreements shall remain in full force and effect.
(k)
FINRA No Objections. FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms
and arrangements.
(l)
Other Documents. The Company shall have furnished to the Representatives and counsel for the Underwriters such additional
documents, certificates and evidence as the Representatives or they may have reasonably requested.
(m)
Exchange Listing. The Securities to be delivered on such Closing Date have been approved for listing on the Nasdaq Global
Market, subject to official notice of issuance.
(n)
CFO Certificate. If requested by the Representatives, on the date of this Agreement and on the Closing Date, as the case
may be, the Company shall have furnished to the Representatives a certificate, dated the respective dates of delivery thereof and addressed
to the Underwriters, of its chief financial officer with respect to certain financial data contained in the Time of Sale Disclosure Package
and the Prospectus, providing “management comfort” with respect to such information, in form and substance reasonably satisfactory
to the Representatives.
All
such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably
satisfactory in form and substance to the Representatives and counsel for the Underwriters. The Company will furnish the Representatives
with such conformed copies of such opinions, certificates, letters and other documents as the Representatives shall reasonably request.
6.
Indemnification and Contribution.
(a)
Indemnification by the Company. The Company agrees to indemnify and hold harmless each Underwriter, its affiliates, directors
and officers and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, from and against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise (including in settlement of any litigation if such settlement is effected with the written consent of the
Company), insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon: (i)
an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, including the 430B Information
and any other information deemed to be a part of the Registration Statement at the time of effectiveness and at any subsequent time pursuant
to the Rules and Regulations, if applicable the Time of Sale Disclosure Package, the Prospectus, or any amendment or supplement thereto,
any issuer free writing prospectus, any issuer information that the Company has filed or is required to file pursuant to Rule 433(d)
of the Rules and Regulations, any roadshow materials, or any Testing-the-Waters Communication or (ii) the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading (in the case
of the Time of Sale Disclosure Package, the Prospectus, or any amendment or supplement thereto, in light of the circumstances under which
they were made), and will reimburse each Underwriter for any legal or other expenses reasonably incurred by it in connection with investigating
or defending against such loss, claim, damage, liability or action as such expenses are incurred; provided, however, that
the Company will not be liable in any such case to the extent that any such loss, claim, damage, liability or action arises out of or
is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and in conformity
with written information furnished to the Company by the Representatives, or by any Underwriter through the Representatives, specifically
for use in the preparation thereof; it being understood and agreed that the only information furnished by an Underwriter consists of
the information described as such in Section 6(e).
(b)
Indemnification by the Underwriters. Each Underwriter will, severally and not jointly, indemnify and hold harmless the
Company, its affiliates, directors and officers and each person, if any, who controls the Company within the meaning of Section 15 of
the Act and Section 20 of the Exchange Act, from and against any losses, claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise (including in settlement of any litigation, if such settlement is effected with the written consent
of such Underwriter), insofar as such losses, claims, damages or liabilities (or actions in respect thereof) (i) arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Time of Sale
Disclosure Package, the Prospectus, or any amendment or supplement thereto, any issuer free writing prospectus, any issuer information
that the Company has filed or is required to file pursuant to Rule 433(d) of the Rules and Regulations, or any Written Testing-the-Waters
Communication, or any road show, or (ii) arise out of or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein not misleading (in the case of the Time of Sale Disclosure
Package, the Prospectus, or any amendment or supplement thereto, in light of the circumstances under which they were made), in each case
to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made
in reliance on or in conformity with written information furnished to the Company by the Representatives, or by such Underwriter through
the Representatives, specifically for use in the preparation thereof (it being understood and agreed that the only information furnished
by an Underwriter consists of the information described as such in Section 6(e)), and will reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with investigating or defending against any such loss, claim, damage, liability
or action as such expenses are incurred.
(c)
Notice and Procedures. Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the
commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party
under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying
party shall not relieve the indemnifying party from any liability that it may have to any indemnified party except to the extent such
indemnifying party has been materially prejudiced by such failure (through the forfeiture of substantive rights or defenses). In case
any such action shall be brought against any indemnified party, and it shall notify the indemnifying party of the commencement thereof,
the indemnifying party shall be entitled to participate in, and, to the extent that it shall wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice
from the indemnifying party to such indemnified party of the indemnifying party’s election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such subsection for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than reasonable costs of investigation; provided, however,
that if, in the sole reasonable judgment of the Representatives, it is advisable for the Underwriters to be represented as a group by
separate counsel, the Representatives shall have the right to employ a single counsel (in addition to local counsel) to represent the
Representatives and all Underwriters who may be subject to liability arising from any claim in respect of which indemnity may be sought
by the Underwriters under subsection (a) of this Section 6, in which event the reasonable fees and expenses of such separate counsel
shall be borne by the indemnifying party or parties and reimbursed to the Underwriters as incurred. An indemnifying party shall not be
obligated under any settlement agreement relating to any action under this Section 6 to which it has not agreed in writing. In addition,
no indemnifying party shall, without the prior written consent of the indemnified party (which consent shall not be unreasonably withheld
or delayed), effect any settlement of any pending or threatened proceeding unless such settlement includes an unconditional release of
such indemnified party for all liability on claims that are the subject matter of such proceeding and does not include a statement as
to, or an admission of, fault, culpability or a failure to act by or on behalf of an indemnified party. Notwithstanding the foregoing,
if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel pursuant to this Section 6(c), such indemnifying party agrees that it shall be liable for any settlement effected without
its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid
request and (ii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the
date of such settlement.
(d)
Contribution; Limitations on Liability; Non-Exclusive Remedy. If the indemnification provided for in this Section 6 is
unavailable or insufficient to hold harmless an indemnified party under subsection (a) or (b) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result of the losses, claims, damages or liabilities referred
to in subsection (a) or (b) above, (i) in such proportion as is appropriate to reflect the relative benefits received by the Company
on the one hand and the Underwriters on the other from the offering of the 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 in connection with the
statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses) received by the Company bear to the total underwriting discounts
and commissions received by the Underwriters, in each case as set forth in the table on the cover page of the Prospectus. The relative
fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information supplied by the Company or the Underwriters and the parties’
relevant intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company
and the Underwriters agree that it would not be just and equitable if contributions pursuant to this subsection (d) 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 which
does not take account of the equitable considerations referred to in the first sentence of this subsection (d). The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities referred to in the first sentence of this subsection (d)
shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating
or defending against any action or claim which is the subject of this subsection (d). Notwithstanding the provisions of this subsection
(d), no Underwriter shall 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 Securities purchased by it hereunder 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 Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations in this subsection (d) to contribute
are several in proportion to their respective underwriting obligations and not joint. The remedies provided for in this Section 6 are
not exclusive and shall not limit any rights or remedies that might otherwise be available to any indemnified party at law or in equity.
(e)
Information Provided by the Underwriters. The Underwriters severally confirm and the Company acknowledges that the statements
provided by the Underwriters to the Company in writing are correct and constitute the only information concerning such Underwriters furnished
in writing to the Company by or on behalf of the Underwriters specifically for inclusion in the Registration Statement, the Time of Sale
Disclosure Package, the Prospectus or any issuer free writing prospectus.
7.
Representations and Agreements to Survive Delivery. All representations, warranties, and agreements of the Company herein
or in certificates delivered pursuant hereto, including but not limited to the agreements of the several Underwriters, the Company contained
in Section 6 hereof, shall remain operative and in full force and effect regardless of any investigation made by or on behalf of any
Underwriter or any controlling person thereof, or the Company or any of its officers, directors, or controlling persons, and shall survive
delivery of, and payment for, the Securities to and by the Underwriters hereunder and any termination of this Agreement.
8.
Substitution of Underwriters.
(a)
Obligation to Purchase Under Certain Circumstances. If any Underwriter or Underwriters shall fail to take up and pay for
the amount of Securities agreed by such Underwriter or Underwriters to be purchased hereunder, upon tender of such Securities in accordance
with the terms hereof, and the amount of Securities not purchased does not aggregate more than 10% of the total amount of Securities
set forth in Schedule I hereto, the remaining Underwriters shall be obligated to take up and pay for (in proportion to their respective
underwriting obligations hereunder as set forth in Schedule I hereto except as may otherwise be determined by the Representatives) the
Securities that the withdrawing or defaulting Underwriters agreed but failed to purchase.
(b)
Termination Under Certain Circumstances. If any Underwriter or Underwriters shall fail to take up and pay for the amount
of Securities agreed by such Underwriter or Underwriters to be purchased hereunder, upon tender of such Securities in accordance with
the terms hereof, and the amount of Securities not purchased aggregates more than 10% of the total amount of Securities set forth in
Schedule I hereto, and arrangements satisfactory to the Representatives for the purchase of such Securities by other persons are not
made within 36 hours thereafter, this Agreement shall terminate. In the event of any such termination the Company shall not be under
any liability to any Underwriter (except to the extent provided in Section 4(a)(vii), Section 4(b)(i), Section 4(b)(ii) and Section 6
hereof) nor shall any Underwriter (other than an Underwriter who shall have failed, otherwise than for some reason permitted under this
Agreement, to purchase the amount of Securities agreed by such Underwriter to be purchased hereunder) be under any liability to the Company
(except to the extent provided in Section 6 hereof).
(c)
Postponement of Closing. If Securities to which a default relates are to be purchased by the non-defaulting Underwriters
or by any other party or parties, the Representatives or the Company shall have the right to postpone the Closing Date for not more than
seven business days in order that the necessary changes in the Registration Statement, in the Time of Sale Disclosure Package, in the
Prospectus or in any other documents, as well as any other arrangements, may be effected. As used herein, the term “Underwriter”
includes any person substituted for an Underwriter under this Section 8.
(d)
No Relief from Liability. No action taken pursuant to this Section shall relieve any defaulting Underwriter from liability,
if any, in respect of such default.
9.
Termination of this Agreement.
(a)
Right to Terminate. The Representatives, as Representatives of the several Underwriters, shall have the right to terminate
this Agreement by giving notice as hereinafter specified at any time at or prior to the Closing Date, if (i) the Company shall have failed,
refused or been unable, at or prior to such Closing Date, to perform any agreement on its part to be performed hereunder, (ii) any other
condition of the Underwriters’ obligations hereunder is not fulfilled, (iii) trading on the Nasdaq Stock Market or New York Stock
Exchange shall have been wholly suspended, (iv) minimum or maximum prices for trading shall have been fixed, or maximum ranges for prices
for securities shall have been required, on the Nasdaq Stock Market or New York Stock Exchange, by such exchange or by order of the Commission
or any other Governmental Authority, (v) a banking moratorium shall have been declared by federal or state authorities, or (vi) there
shall have occurred any outbreak or escalation of hostilities or any change in financial markets or any calamity or crisis that, in the
Representatives’ judgment, is material and adverse and makes it impractical or inadvisable to proceed with the completion of the
sale of and payment for the Securities. Any such termination shall be without liability of any party to any other party except that the
provisions of Section 4(g) and Section 6 hereof shall at all times be effective.
(b)
Notice of Termination. If the Representatives elect to terminate this Agreement as provided in this Section, the Company
shall be notified promptly by the Representatives by telephone, confirmed by letter.
10.
Default by the Company.
(a)
Default by the Company. If the Company shall fail at the Closing Date to sell and deliver the number of Securities which
it is obligated to sell hereunder, then this Agreement shall terminate without any liability on the part of any Underwriter or, except
as provided in Section 4(a)(vii), Section 4(b)(i), Section 4(b)(ii) and Section 6 hereof, any non-defaulting party.
(b)
No Relief from Liability. No action taken pursuant to this Section shall relieve the Company from liability, if any, in
respect of such default.
11.
Notices. Except as otherwise provided herein, all communications hereunder shall be in writing and, if to the Underwriters,
shall be mailed via overnight delivery service or hand delivered via courier to the Representatives at c/o Canaccord Genuity LLC, One
Post Office Square, Suite 3000, Boston, MA 02109, Attention: General Counsel, and BTIG, LLC, 350 Bush Street, 9th Floor, San
Francisco, California 94104, Attention: General Counsel, with a copy to Duane Morris LLP, 22 Vanderbilt, 335 Madison Avenue, 23rd Floor,
New York, NY 10017, Attention: James T. Seery; if to the Company, shall be mailed or delivered to it at, 360 Madison Avenue, 25th Floor,
New York, NY 10017, Attention: Lishan Aklog, M.D. with a copy (which shall not constitute notice) to Graubard Miller, The Chrysler Building,
405 Lexington Avenue, 44th Floor, New York, NY 10174, Attention: Eric T. Schwartz; Jeffrey M. Gallant. Any party to this Agreement may
change such address for notices by sending to the parties to this Agreement written notice of a new address for such purpose.
12.
Persons Entitled to Benefit of Agreement. This Agreement shall inure to the benefit of and be binding upon the parties
hereto and their respective successors and assigns and the controlling persons, officers and directors referred to in Section 6. Nothing
in this Agreement is intended or shall be construed to give to any other person, firm or corporation any legal or equitable remedy or
claim under or in respect of this Agreement or any provision herein contained. The term “successors and assigns” as herein
used shall not include any purchaser, as such purchaser, of any of the Securities from any of the several Underwriters.
13.
Absence of Fiduciary Relationship. The Company acknowledges and agrees that: (a) the Representatives have been retained
solely to act as underwriters in connection with the sale of the Securities and that no fiduciary, advisory or agency relationship between
the Company and the Representatives have been created in respect of any of the transactions contemplated by this Agreement, irrespective
of whether the Representatives have advised or are advising the Company on other matters; (b) the price and other terms of the Securities
set forth in this Agreement were established by the Company following discussions and arms-length negotiations with the Representatives
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; (c) it has been advised that the Representatives 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 Representatives have no obligation
to disclose such interest and transactions to the Company by virtue of any fiduciary, advisory or agency relationship; (d) it has been
advised that the Representatives are acting, in respect of the transactions contemplated by this Agreement, solely for the benefit of
the Representatives and the other Underwriters, and not on behalf of the Company; (e) it, he or she waives to the fullest extent permitted
by law, any claims it may have against the Representatives for breach of fiduciary duty or alleged breach of fiduciary duty in respect
of any of the transactions contemplated by this Agreement and agrees that the Representatives shall have no liability (whether direct
or indirect) to the Company in respect of such a fiduciary duty claim on behalf of or in right of the Company, including stockholders,
employees or creditors of the Company.
14.
Recognition of the U.S. Special Resolution Regimes.
(a)
In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the
transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the
same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and
obligation, were governed by the laws of the United States or a state of the United States.
(b)
In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding
under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted
to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement
were governed by the laws of the United States or a state of the United States.
(c)
As used in this section:
“BHC
Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance
with, 12 U.S.C. § 1841(k);
“Covered
Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance
with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12
C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R.
§ 382.2(b); “Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12
C.F.R. §§ 252.81, 47.2 or 382.1, as applicable; and
“U.S.
Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder
and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
15.
Governing Law; Waiver of Jury Trial. This Agreement and any transaction contemplated by this Agreement and any claim, controversy
or dispute arising under or related thereto shall be governed by and construed in accordance with the laws of the State of New York without
regard to principles of conflict of laws that would results in the application of any other law than the laws of the State of New York.
The Company (on its 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.
16.
Submission to Jurisdiction, Etc. Each party hereby submits to the exclusive jurisdiction of the U.S. federal and New York
state courts sitting in the Borough of Manhattan, City of New York, in any suit or proceeding arising out of or relating to this Agreement
or the transactions contemplated hereby. The parties hereby irrevocably and unconditionally waive any objection to the laying of venue
of any lawsuit, action or other proceeding in such courts, and hereby further irrevocably and unconditionally waive and agree not to
plead or claim in any such court that any such lawsuit, action or other proceeding brought in any such court has been brought in an inconvenient
forum.
17.
Counterparts. This Agreement may be executed in one or more counterparts and, if executed in more than one counterpart,
the executed counterparts shall each be deemed to be an original and all such counterparts shall together constitute one and the same
instrument. Counterparts may be delivered via facsimile or electronic mail (including, without limitation, “pdf”, “tif”
or “jpg”) and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective
for all purposes.
18.
General Provisions. This Agreement constitutes the entire agreement of the parties to this Agreement and supersedes all
prior written or oral and all contemporaneous oral agreements, understandings and negotiations with respect to the subject matter hereof.
This Agreement may not be amended or modified unless in writing by all of the parties hereto, and no condition herein (express or implied)
may be waived unless waived in writing by each party whom the condition is meant to benefit. The Section headings herein are for the
convenience of the parties only and shall not affect the construction or interpretation of this Agreement.
[Signature
Page Follows]
Please
sign and return to the Company the enclosed duplicates of this Agreement whereupon this Agreement will become a binding agreement between
the Company and the several Underwriters in accordance with its terms.
Very
truly yours,
LUCID
DIAGNOSTICS INC.
By
/s/
Dennis M. McGrath
Name:
Dennis
M. McGrath
Title:
Chief
Financial Officer
Each
acting individually and as Representative of the several Underwriters named in the attached Schedule I.
CANACCORD
GENUITY LLC
By
/s/
Jennifer Pardi
Name:
Jennifer
Pardi
Title:
Managing
Director
BTIG,
LLC
By
/s/
Daniil Kalyuzhny
Name:
Daniil
Kalyuzhny
Title:
Managing
Director
[Signature
Page to Underwriting Agreement]
EX-5.1
EX-5.1
Filename: ex5-1.htm · Sequence: 3
Exhibit
5.1
Facsimile
Direct
Dial
April
23, 2026
Lucid
Diagnostics Inc.
360
Madison Avenue, 25th Floor
New
York, New York 10017
Ladies
and Gentlemen:
We
have acted as counsel to Lucid Diagnostics Inc., a Delaware corporation (the “Company”), in connection with the preparation
of the Registration Statement on Form S-3 (File No. 333-291981), filed by the Company with the Securities and Exchange Commission (the
“Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), which was declared
effective on March 26, 2026 (“Registration Statement”), and the offering by the Company pursuant thereto (the “Offering”)
of an aggregate of 18,000,000 shares (the “Shares”) of the Company’s common stock, par value $0.001 per share
(“Common Stock”), in an underwritten offering to the public. The Company has entered into an underwriting agreement
(the “Underwriting Agreement”) with Canaccord Genuity LLC and BTIG, LLC, as the representatives of the underwriters
(the “Representative”), for the offer and sale of the Shares in the Offering. A prospectus supplement relating to
the Offering (the “Prospectus Supplement”) will be filed with the Commission in accordance with Rule 424 of the Securities
Act. This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.
In
rendering the opinion set forth below, we have reviewed (a) the Underwriting Agreement, (b) the Registration Statement, and the exhibits
thereto, and the form of Prospectus Supplement, (c) the Company’s Certificate of Incorporation and Bylaws, each as amended and
restated to date; (d) certain records of the Company’s corporate proceedings as reflected in its minute books; and (e) such statutes,
records, and other documents as we have deemed relevant. In our examination, we have assumed the genuineness of all signatures, the authenticity
of all documents submitted to us as originals, and conformity with the originals of all documents submitted to us as copies thereof.
In addition, we have made such other examinations of law and fact as we have deemed relevant in order to form a basis for the opinions
hereinafter expressed.
No
opinion is expressed herein other than as to the laws of the State of New York, the corporate law of the State of Delaware, and the federal
law of the United States of America.
Based
upon and subject to the foregoing, we are of the opinion that the Shares have been duly authorized and when sold and issued in accordance
with the terms of the Underwriting Agreement against payment therefor, will be validly issued, fully paid and non-assessable.
We
hereby consent to the filing of this opinion with the Commission as an exhibit to the Company’s Current Report on Form 8-K being
filed on the date hereof, and incorporation by reference of this opinion into the Registration Statement. We also consent to the use
of our name as counsel to the Company and to all references made to us in the Registration Statement and the Prospectus Supplement. In
giving this consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the
Securities Act or the rules and regulations promulgated thereunder. This opinion is expressed as of the date hereof and we disclaim any
undertaking to advise you of any subsequent changes in the facts stated or assumed herein or of any subsequent changes in applicable
law.
Very
truly yours,
/s/
Graubard Miller
EX-99.1
EX-99.1
Filename: ex99-1.htm · Sequence: 4
Exhibit
99.1
Lucid
Diagnostics Announces $18 Million Underwritten Offering of Common Stock
NEW
YORK, April 23, 2026 - Lucid Diagnostics Inc. (Nasdaq: LUCD) (“Lucid” or the “Company”), a commercial-stage,
cancer prevention medical diagnostics company, and subsidiary of PAVmed Inc. (Nasdaq: PAVM), today announced the pricing of an underwritten
registered direct offering of 18,000,000 common shares at a purchase price of $1.00 per share, anchored by a $15M investment from a fundamental
institutional investor with support from a large existing shareholder.
The
gross proceeds from the offering, before deducting underwriting discounts and commissions and other estimated offering expenses, are
expected to be approximately $18 million. The Company intends to use the net proceeds from this offering for working capital and general
corporate purposes.
The
offering is expected to close on or about April 24, 2026, subject to customary closing conditions.
Canaccord
Genuity LLC and BTIG, LLC are acting as joint bookrunners for the offering.
The
offering is being made pursuant to a shelf registration statement on Form S-3 (File No. 333-291981) declared effective by the Securities
and Exchange Commission on March 26, 2026. The offering is being made only by means of a prospectus and a prospectus supplement which
forms a part of the effective registration statement relating to the offering. A final prospectus supplement and accompanying prospectus
relating to the offering will be filed with the SEC. Electronic copies of the final prospectus, when available, may be obtained on the
SEC’s website at http://www.sec.gov and may also be obtained, when available, by contacting Canaccord Genuity LLC, Attn:
Syndication Department, 1 Post Office Square, 30th Floor, Boston, MA 02109, or by email at prospectus@cgf.com or BTIG, LLC, 65
East 55th Street, New York, New York 10022, or by email at btig-ibd-equitycapitalmarkets@btig.com.
This
press release shall not constitute an offer to sell or the solicitation of an offer to buy the shares of common stock. Lucid will not,
and has been advised by the underwriters that they and their affiliates will not, sell any of the shares of common stock in any state
or other jurisdiction in which such offer, solicitation, or sale would be unlawful prior to the registration or qualification under the
securities laws of any such state or jurisdiction.
About
Lucid Diagnostics
Lucid
Diagnostics Inc. is a commercial-stage, cancer prevention medical diagnostics company and subsidiary of PAVmed Inc. (Nasdaq: PAVM). Lucid
is focused on the millions of patients with gastroesophageal reflux disease (GERD), also known as chronic heartburn, who are at risk
of developing esophageal precancer and cancer. Lucid’s EsoGuard® Esophageal DNA Test, performed on samples
collected in a brief, noninvasive office procedure with its EsoCheck® Esophageal Cell Collection Device, represent
the first and only commercially available tools designed with the goal of preventing cancer and cancer deaths through widespread, early
detection of esophageal precancer in at-risk patients.
For
more information about Lucid, please visit www.luciddx.com and for more information about its parent company PAVmed, please visit
www.pavmed.com.
Forward-Looking Statements
This
press release includes forward-looking statements that involve risk and uncertainties. Forward-looking statements are any statements
that are not historical facts. Such forward-looking statements, which are based upon the current beliefs and expectations of Lucid Diagnostics’
management, are subject to risks and uncertainties, which could cause actual results to differ from the forward-looking statements. Risks
and uncertainties that may cause such differences include, among other things, volatility in the price of Lucid Diagnostics’ common
stock; general economic and market conditions; the uncertainties inherent in research and development, including the cost and time required
to advance Lucid Diagnostics’ products to regulatory submission; whether regulatory authorities will be satisfied with the design
of and results from Lucid Diagnostics’ clinical and preclinical studies; whether and when Lucid Diagnostics’ products are
cleared by regulatory authorities; market acceptance of Lucid Diagnostics’ products once cleared and commercialized; Lucid Diagnostics’
ability to raise additional funding as needed; and other competitive developments. These factors are difficult or impossible to predict
accurately and many of them are beyond Lucid Diagnostics’ control. In addition, new risks and uncertainties may arise from time
to time and are difficult to predict. For a further list and description of these and other important risks and uncertainties that may
affect Lucid Diagnostics’ future operations, see Part I, Item 1A, “Risk Factors,” in Lucid Diagnostics’ most
recent Annual Report on Form 10-K filed with the Securities and Exchange Commission, as the same may be updated in Part II, Item 1A,
“Risk Factors” in any Quarterly Report on Form 10-Q filed by Lucid Diagnostics after its most recent Annual Report. Lucid
Diagnostics disclaims any intention or obligation to publicly update or revise any forward-looking statement to reflect any change in
its expectations or in events, conditions, or circumstances on which those expectations may be based, or that may affect the likelihood
that actual results will differ from those contained in the forward-looking statements.
Investor
and Media Contact:
Matt
Riley
PAVmed and Lucid Diagnostics
mjr@pavmed.com
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Apr. 23, 2026
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Apr. 23, 2026
Entity File Number
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Entity Registrant Name
LUCID
DIAGNOSTICS INC.
Entity Central Index Key
0001799011
Entity Tax Identification Number
82-5488042
Entity Incorporation, State or Country Code
DE
Entity Address, Address Line One
360
Madison Avenue
Entity Address, Address Line Two
25th Floor
Entity Address, City or Town
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Entity Address, State or Province
NY
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10017
City Area Code
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Local Phone Number
813-1828
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