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VBI Vaccines Inc/BC
0000764195
0000764195
2024-05-09
2024-05-09
iso4217:USD
xbrli:shares
iso4217:USD
xbrli:shares
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the
Securities
Exchange Act of 1934
Date
of report (Date of earliest event reported): May 9, 2024
VBI
VACCINES INC.
(Exact
name of registrant as specified in its charter)
British
Columbia, Canada |
|
001-37769 |
|
N/A |
(State
or other jurisdiction
of incorporation) |
|
(Commission
File Number) |
|
(IRS
Employer
Identification No.) |
160
Second Street, Floor 3
Cambridge, Massachusetts |
|
02142 |
(Address
of principal executive offices) |
|
(Zip
Code) |
(617)
830-3031
(Registrant’s
telephone number, including area code)
N/A
(Former
Name or former address, if changed since last report)
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under
any of the following provisions:
☐ |
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
|
|
☐ |
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
|
|
☐ |
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
|
|
☐ |
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities
registered pursuant to Section 12(b) of the Act:
Title
of each class |
|
Trading
Symbol(s) |
|
Name
of exchange on which registered |
Common
Shares, no par value per share |
|
VBIV |
|
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
May 15, 2024, VBI Vaccines Inc. (the “Company”) entered into an At The Market Offering Agreement (the “Sales Agreement”)
with H.C. Wainwright & Co., LLC, as sales agent (“Wainwright”), pursuant to which the Company may offer and sell, from
time to time through Wainwright, common shares, no par value per share (the “Shares”), for aggregate gross proceeds of up
to $8,468,289 (the “ATM Offering”). The offer and sale of the Shares will be made pursuant to a registration statement on
Form S-3 (File No. 333-267109), as amended, originally filed with the Securities and Exchange Commission (the “SEC”)
on August 26, 2022, and declared effective by the SEC on September 6, 2022, and the related prospectus contained therein (the “Registration
Statement”), as supplemented by a prospectus supplement relating to the ATM Offering, dated May 15, 2024, and filed with the
SEC on such date pursuant to Rule 424(b) under the Securities Act of 1933, as amended (the “Securities Act”).
Pursuant
to the Sales Agreement, Wainwright may sell the Shares in sales deemed to be “at-the-market” equity offerings as defined
in Rule 415 promulgated under the Securities Act, including sales made directly on or through the Nasdaq Capital Market or any other
method permitted by law. If agreed to in a separate terms agreement, the Company may sell the Shares to Wainwright as principal,
at a purchase price agreed upon by Wainwright and the Company. Wainwright may also sell the Shares in negotiated transactions with the
Company’s prior approval. The offer and sale of the Shares pursuant to the ATM Offering will terminate upon the earlier of (a)
the sale of the Shares pursuant to the prospectus supplement filed on May 15, 2024, having an aggregate sales price of $8,468,289, or
(b) the termination of the Sales Agreement by Wainwright or the Company pursuant to its terms. The Company has no obligation to sell
any of the Shares, and may at any time suspend offers under the Sales Agreement.
The
Company currently intends to use the net proceeds from the ATM Offering, if any, for working capital and general corporate purposes.
The
Company has agreed to pay Wainwright a commission of 3.0% of the gross proceeds from any Shares sold by Wainwright and to provide Wainwright
with customary indemnification and contribution rights, including for liabilities under the Securities Act. The Company also will reimburse
Wainwright for certain specified expenses in connection with entering into the Sales Agreement. The Sales Agreement contains customary
representations and warranties and conditions to the placements of the Shares pursuant thereto.
This
Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of an offer to buy the Shares, nor shall there be
any offer, solicitation, or sale of the Shares in any state in which such offer, solicitation or sale would be unlawful prior to registration
or qualification under the securities laws of any such state. The provisions of the Sales Agreement, including the representations and
warranties contained therein, are not for the benefit of any party other than the parties to the Sales Agreement and are not intended
as a document for investors and the public to obtain factual information about the Company’s current state of affairs. Rather,
investors and the public should look to other disclosures contained in the Company’s filings with the SEC.
The
foregoing summary of the Sales Agreement does not purport to be complete and is qualified in its entirety by reference to the full text
of the Sales Agreement, a copy of which is filed as Exhibit 1.1 hereto and incorporated herein by reference. A copy of the opinion of
Stikeman Elliott LLP relating to the legality of the issuance and sale of the Shares, is attached hereto as Exhibit 5.1 to this Current
Report on Form 8-K.
Item
1.02 Termination of a Material Definitive Agreement.
As
previously disclosed, on August 26, 2022, the Company entered into an Open Market Sale Agreement (the “Jefferies Sales Agreement”)
with Jefferies LLC (“Jefferies”), to act as its sales agent or principal, with respect to the issuance and sale of up to
$125,000,000 of its common shares, from time to time in an at-the-market offering registered pursuant the Company’s Registration
Statement (the “Prior ATM Offering”). The Company agreed to pay Jefferies a commission of up to 3.0% of the gross proceeds
from the sale of its common shares pursuant to the Jefferies Sales Agreement.
Effective
as of May 10, 2024, the Company terminated (i) the Jefferies Sales Agreement, pursuant to Section 7(b)(i) of the Jefferies
Sales Agreement, and (ii) the Prior ATM Offering. The Company is not subject to any termination penalties related to the termination
of the Jefferies Sales Agreement.
Item
2.02 Results of Operations and Financial Condition.
On
May 15, 2024, the Company issued a press release announcing its financial results for the first fiscal quarter ending March 31, 2024,
and provided a corporate update. A copy of this press release is furnished as Exhibit 99.1 hereto and is incorporated herein by reference.
In
accordance with General Instruction B.2 of Form 8-K, the information in this Current Report on Form 8-K, including Exhibit 99.1, that
is furnished pursuant to this Item 2.02 shall not be deemed to be “filed” for the purposes of Section 18 of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that section, and shall
not be incorporated by reference into any registration statement or other document filed under the Securities Act or the Exchange Act,
except as shall be expressly set forth by specific reference in such filing.
Item
9.01 Financial Statements and Exhibits.
(d)
Exhibits
*
This exhibit is furnished pursuant to Item 2.02 and shall not be deemed to be “filed.”
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its
behalf by the undersigned hereunto duly authorized.
|
VBI
Vaccines Inc. |
|
|
Date:
May 15, 2024 |
By: |
/s/
Jeffrey R. Baxter |
|
|
Jeffrey
R. Baxter |
|
|
President
and Chief Executive Officer |
Exhibit
1.1
AT
THE MARKET OFFERING AGREEMENT
May
15, 2024
H.C.
Wainwright & Co., LLC
430
Park Avenue
New
York, New York 10022
Ladies
and Gentlemen:
VBI
Vaccines Inc., a company incorporated under the Business Corporations Act (British Columbia) (the “Company”), confirms
its agreement (this “Agreement”) with H.C. Wainwright & Co., LLC (the “Manager”) as follows:
1.
Definitions. The terms that follow, when used in this Agreement and any Terms Agreement, shall have the meanings indicated.
“Accountants”
shall have the meaning ascribed to such term in Section 4(m).
“Act”
shall mean the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Action”
shall have the meaning ascribed to such term in Section 3(p).
“Affiliate”
shall have the meaning ascribed to such term in Section 3(o).
“Applicable
Time” shall mean, with respect to any Shares, the time of sale of such Shares pursuant to this Agreement or any relevant Terms
Agreement.
“Base
Prospectus” shall mean the base prospectus contained in the Registration Statement at the Execution Time.
“Board”
shall have the meaning ascribed to such term in Section 2(b)(iii).
“Broker
Fee” shall have the meaning ascribed to such term in Section 2(b)(v).
“Business
Day” shall mean any day other than Saturday, Sunday or other day on which commercial banks in The City of New York or Vancouver,
British Columbia, Canada are authorized or required by law to remain closed; provided, however, that, for purposes of clarity,
commercial banks shall not be deemed to be authorized or required by law to remain closed due to “stay at home”, “shelter-in-place”,
“non-essential employee” or any other similar orders or restrictions or the closure of any physical branch locations at the
direction of any governmental authority so long as the electronic funds transfer systems (including for wire transfers) of commercial
banks in The City of New York are generally open for use by customers on such day.
“Commission”
shall mean the United States Securities and Exchange Commission.
“Common
Shares” shall have the meaning ascribed to such term in Section 2.
“Common
Share Equivalents” shall have the meaning ascribed to such term in Section 3(g).
“Company
Canadian Counsel” means Stikeman Elliott LLP, or such other Canadian counsel reasonably acceptable to the Manager.
“Company
U.S. Counsel” means Haynes and Boone, LLP, or such other U.S. counsel reasonably acceptable to the Manager.
“DTC”
shall have the meaning ascribed to such term in Section 2(b)(vii).
“Effective
Date” shall mean each date and time that the Registration Statement and any post-effective amendment or amendments thereto
became or becomes effective.
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated
thereunder.
“Execution
Time” shall mean the date and time that this Agreement is executed and delivered by the parties hereto.
“Free
Writing Prospectus” shall mean a free writing prospectus, as defined in Rule 405.
“GAAP”
shall have the meaning ascribed to such term in Section 3(m).
“Incorporated
Documents” shall mean the documents or portions thereof filed with the Commission on or prior to the Effective Date that are
incorporated by reference in the Registration Statement or the Prospectus and any documents or portions thereof filed with the Commission
after the Effective Date that are deemed to be incorporated by reference in the Registration Statement or the Prospectus.
“Intellectual
Property Rights” shall have the meaning ascribed to such term in Section 3(v).
“Issuer
Free Writing Prospectus” shall mean an issuer free writing prospectus, as defined in Rule 433.
“Losses”
shall have the meaning ascribed to such term in Section 7(d).
“Material
Adverse Effect” shall have the meaning ascribed to such term in Section 3(b).
“Material
Permits” shall have the meaning ascribed to such term in Section 3(t).
“Net
Proceeds” shall have the meaning ascribed to such term in Section 2(b)(v).
“Permitted
Free Writing Prospectus” shall have the meaning ascribed to such term in Section 4(g).
“Person”
shall have the meaning ascribed to such term in Section 3(e).
“Placement”
shall have the meaning ascribed to such term in Section 2(c).
“Proceeding”
shall have the meaning ascribed to such term in Section 3(b).
“Prospectus”
shall mean the Base Prospectus, as supplemented by the most recently filed Prospectus Supplement (if any).
“Prospectus
Supplement” shall mean each prospectus supplement relating to the Shares prepared and filed pursuant to Rule 424(b) from time
to time.
“Registration
Statement” shall mean the shelf registration statement (File Number 333-267109) on Form S-3, including all information, exhibits
and financial statements filed with or incorporated by reference into such registration statement and any prospectus supplement relating
to the Shares that is filed with the Commission pursuant to Rule 424(b) and deemed part of such registration statement pursuant to Rule
430B, as amended on each Effective Date and, in the event any post-effective amendment thereto becomes effective, shall also mean such
registration statement as so amended.
“Representation
Date” shall have the meaning ascribed to such term in Section 4(k).
“Required
Approvals” shall have the meaning ascribed to such term in Section 3(e).
“Rule
158”, “Rule 164”, “Rule 172”, “Rule 173”, “Rule 405”,
“Rule 415”, “Rule 424”, “Rule 430B” and “Rule 433” refer
to such rules under the Act.
“Sales
Notice” shall have the meaning ascribed to such term in Section 2(b)(i).
“SEC
Reports” shall have the meaning ascribed to such term in Section 3(m).
“Settlement
Date” shall have the meaning ascribed to such term in Section 2(b)(vii).
“Subsidiary”
shall have the meaning ascribed to such term in Section 3(a).
“Terms
Agreement” shall have the meaning ascribed to such term in Section 2(a).
“Time
of Delivery” shall have the meaning ascribed to such term in Section 2(c).
“Trading
Day” means a day on which the Trading Market is open for trading.
“Trading
Market” means any of the following markets or exchanges on which the Common Shares are listed or quoted for trading on the
date in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New
York Stock Exchange (or any successors to any of the foregoing).
2.
Sale and Delivery of Shares. The Company proposes to issue and sell through or to the Manager, as sales agent and/or principal,
from time to time during the term of this Agreement and on the terms set forth herein, up to such number of shares (the “Shares”)
of the Company’s Common Shares, no par value per share (“Common Shares”), that does not exceed (a) the number
or dollar amount of Common Shares set forth on the cover page of the Prospectus Supplement pursuant to which the offering is being made,
(b) the number of authorized but unissued Common Shares (less the number of Common Shares issuable upon exercise, conversion or exchange
of any outstanding securities of the Company or otherwise reserved from the Company’s authorized capital stock), or (c) the number
or dollar amount of Common Shares that would cause the Company or the offering of the Shares to not satisfy the eligibility and transaction
requirements for use of Form S-3, including, if applicable, General Instruction I.B.6 of Registration Statement on Form S-3 (the lesser
of (a), (b) and (c), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties
hereto agree that compliance with the limitations set forth in this Section 2 on the number and aggregate sales price of Shares issued
and sold under this Agreement shall be the sole responsibility of the Company and that the Manager shall have no obligation in connection
with such compliance.
(a)
Appointment of Manager as Selling Agent; Terms Agreement. For purposes of selling the Shares through the Manager, the Company
hereby appoints the Manager as exclusive agent of the Company for the purpose of selling the Shares of the Company pursuant to this Agreement,
and the Manager agrees to use its commercially reasonable efforts to sell the Shares on the terms and subject to the conditions stated
herein. The Company agrees that, whenever it determines to sell the Shares directly to the Manager as principal, it will enter into a
separate agreement (each, a “Terms Agreement”) in substantially the form of Annex I hereto, relating to such
sale in accordance with Section 2 of this Agreement.
(b)
Agent Sales. Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the
Company will issue and agrees to sell Shares from time to time through the Manager, acting as sales agent, and the Manager agrees to
use its commercially reasonable efforts to sell Shares, as sales agent for the Company, on the following terms:
(i)
The Shares are to be sold on a daily basis or as otherwise agreed by the Company and the Manager on any day that (A) is a Trading Day,
(B) the Company has instructed the Manager by telephone (confirmed promptly by electronic mail) to make such sales (each, a “Sales
Notice”) and (C) the Company has satisfied its obligations under Section 6 of this Agreement. The Company will designate the
maximum amount of the Shares to be sold by the Manager daily (subject to the limitations set forth in Section 2(d)) and the minimum price
per Share at which such Shares may be sold. Subject to the terms and conditions hereof, the Manager shall use its commercially reasonable
efforts to sell on a particular day all of the Shares designated for the sale by the Company on such day. The gross sales price of the
Shares sold under this Section 2(b) shall be the market price for the Common Shares sold by the Manager under this Section 2(b) on the
Trading Market at the time of sale of such Shares.
(ii)
The Company acknowledges and agrees that (A) there can be no assurance that the Manager will be successful in selling the Shares, (B)
the Manager will incur no liability or obligation to the Company or any other Person if it does not sell the Shares for any reason other
than a failure by the Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable
law and regulations to sell such Shares as required under this Agreement, and (C) the Manager shall be under no obligation to purchase
Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Manager and the Company pursuant
to a Terms Agreement.
(iii)
The Company shall not authorize the issuance and sale of, and the Manager shall not be obligated to use its commercially reasonable efforts
to sell, any Share at a price lower than the minimum price therefor designated from time to time by the Company’s Board of Directors
(the “Board”), or a duly authorized committee thereof, or such duly authorized officers of the Company, and notified
to the Manager in writing. The Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by
electronic mail), suspend the offering of the Shares for any reason and at any time; provided, however, that such suspension
or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to
the giving of such notice.
(iv)
The Manager may sell Shares by any method permitted by law deemed to be an “at the market offering” as defined in Rule 415
under the Act, including without limitation sales made directly on the Trading Market, on any other existing trading market for the Common
Shares or to or through a market maker. The Manager may also sell Shares in privately negotiated transactions, provided that the Manager
receives the Company’s prior written approval for any sales in privately negotiated transactions and if so provided in the “Plan
of Distribution” section of the Prospectus Supplement or a supplement to the Prospectus Supplement or a new Prospectus Supplement
disclosing the terms of such privately negotiated transaction. The Manager hereby acknowledges and agrees that sales and solicitations
of sales of Shares by the Manager shall be made solely on or through the facilities of an exchange or market outside Canada.
(v)
The compensation to the Manager for sales of the Shares under this Section 2(b) shall be a placement fee of 3.0% of the gross sales price
of the Shares sold pursuant to this Section 2(b) (“Broker Fee”). The foregoing rate of compensation shall not apply
when the Manager acts as principal, in which case the Company may sell Shares to the Manager as principal at a price agreed upon at the
relevant Applicable Time pursuant to a Terms Agreement. The remaining proceeds, after deduction of the Broker Fee and deduction of any
transaction fees imposed by any clearing firm, execution broker, or governmental or self-regulatory organization in respect of such sales,
shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
(vi)
The Manager shall provide written confirmation (which may be by electronic mail) to the Company following the close of trading on the
Trading Market each day during which the Shares are sold under this Section 2(b) setting forth the number of the Shares sold on such
day, the aggregate gross sales proceeds and the Net Proceeds to the Company, and the compensation payable by the Company to the Manager
with respect to such sales.
(vii)
Unless otherwise agreed between the Company and the Manager, settlement for sales of the Shares will occur at 10:00 a.m. (New York City
time) on the second (2nd) Trading Day (and on and after May 28, 2024 (or such later date on which the Commission’s final rule with
respect to the shortening of the securities transaction settlement cycle becomes effective), on the first (1st) Trading Day, or any such
shorter settlement cycle as may be in effect under Exchange Act Rule 15c6-1 from time to time) following the date on which such sales
are made (each, a “Settlement Date”). On or before the Trading Day prior to each Settlement Date, the Company will,
or will cause its transfer agent to, electronically transfer the Shares being sold by crediting the Manager’s or its designee’s
account (provided that the Manager shall have given the Company written notice of such designee at least one Trading Day prior to the
Settlement Date) at The Depository Trust Company (“DTC”) through its Deposit and Withdrawal at Custodian System or
by such other means of delivery as may be mutually agreed upon by the parties hereto which Shares in all cases shall be freely tradable,
transferable, registered shares in good deliverable form. On each Settlement Date, the Manager will deliver the related Net Proceeds
in same day funds to an account designated by the Company. The Company agrees that, if the Company, or its transfer agent (if applicable),
defaults in its obligation to deliver duly authorized Shares on a Settlement Date, in addition to and in no way limiting the rights and
obligations set forth in Section 7 hereto, the Company will (i) hold the Manager harmless against any loss, claim, damage, or reasonable,
documented expense (including reasonable and documented legal fees and expenses), as incurred, arising out of or in connection with such
default by the Company, and (ii) pay to the Manager any commission, discount or other compensation to which the Manager would otherwise
have been entitled absent such default.
(viii)
At each Applicable Time, Settlement Date, and Representation Date, the Company shall be deemed to have affirmed each representation and
warranty contained in this Agreement as if such representation and warranty were made as of such date, modified as necessary to relate
to the Registration Statement and the Prospectus as amended as of such date. Any obligation of the Manager to use its commercially reasonable
efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties
of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional
conditions specified in Section 6 of this Agreement.
(ix)
If the Company shall declare or make any dividend or other distribution of its assets (or rights to acquire its assets) to holders of
Common Shares, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities,
property or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar
transaction) (a “Distribution” and the record date for the determination of stockholders entitled to receive the Distribution,
the “Record Date”), the Company hereby covenants that, in connection with any sales of Shares pursuant to a Sales
Notice on the Record Date, the Company shall issue and deliver such Shares to the Manager on the Record Date, and the Record Date shall
be the Settlement Date and the Company shall cover any additional costs of the Manager in connection with the delivery of Shares on the
Record Date.
(c)
Term Sales. If the Company wishes to sell the Shares pursuant to this Agreement in a manner other than as set forth in Section
2(b) of this Agreement (each, a “Placement”), the Company will notify the Manager of the proposed terms of such Placement.
If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion)
or, following discussions with the Company wishes to accept amended terms, the Manager and the Company will enter into a Terms Agreement
setting forth the terms of such Placement. The terms set forth in a Terms Agreement will not be binding on the Company or the Manager
unless and until the Company and the Manager have each executed such Terms Agreement accepting all of the terms of such Terms Agreement.
In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement
will control. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Manager. The commitment
of the Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations
and warranties of the Company herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement
shall specify the number of the Shares to be purchased by the Manager pursuant thereto, the price to be paid to the Company for such
Shares, any provisions relating to rights of, and default by, underwriters acting together with the Manager in the reoffering of the
Shares, and the time and date (each such time and date being referred to herein as a “Time of Delivery”) and place
of delivery of and payment for such Shares. Such Terms Agreement shall also specify any requirements for opinions of counsel, accountants’
letters and officers’ certificates pursuant to Section 6 of this Agreement and any other information or documents required by the
Manager.
(d)
Maximum Number of Shares. Under no circumstances shall the Company cause or request the offer or sale of any Shares if, after
giving effect to the sale of such Shares, the aggregate amount of Shares sold pursuant to this Agreement would exceed the lesser of (A)
together with all sales of Shares under this Agreement, the Maximum Amount, (B) the amount available for offer and sale under the currently
effective Registration Statement and (C) the amount authorized from time to time to be issued and sold under this Agreement by the Board,
a duly authorized committee thereof or a duly authorized executive committee, and notified to the Manager in writing. Under no circumstances
shall the Company cause or request the offer or sale of any Shares pursuant to this Agreement at a price lower than the minimum price
authorized from time to time by the Board, a duly authorized committee thereof or a duly authorized executive officer, and notified to
the Manager in writing. Further, under no circumstances shall the Company cause or permit the aggregate offering amount of Shares sold
pursuant to this Agreement to exceed the Maximum Amount.
(e)
Regulation M Notice. Unless the exceptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are satisfied
with respect to the Shares, the Company shall give the Manager at least one (1) Business Day’s prior notice of its intent to sell
any Shares in order to allow the Manager time to comply with Regulation M.
3.
Representations and Warranties. The Company represents and warrants to, and agrees with, the Manager at the Execution Time and
on each such time that the following representations and warranties are repeated or deemed to be made pursuant to this Agreement, as
set forth below, except as set forth in the Registration Statement, the Prospectus or the Incorporated Documents.
(a)
Subsidiaries. All of the direct and indirect subsidiaries (individually, a “Subsidiary”) of the Company are
set forth on Exhibit 21.1 to the Company’s most recent Annual Report on Form 10-K filed with the Commission. The Company owns,
directly or indirectly, all of the capital stock or other equity interests of each Subsidiary free and clear of any “Liens”
(which for purposes of this Agreement shall mean a lien, charge, security interest, encumbrance, right of first refusal, preemptive right
or other restriction), and all of the issued and outstanding shares of capital stock and other equity interests of each Subsidiary are
validly issued and are fully paid, non-assessable and free of preemptive and similar rights to subscribe for or purchase securities.
(b)
Organization and Qualification. Each of the Company and each Subsidiary is an entity duly incorporated or otherwise organized,
validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite power
and authority to own and use its properties and assets and to carry on its business as currently conducted. Neither the Company nor any
Subsidiary is in violation nor in default of any of the provisions of its respective certificate or articles of incorporation, bylaws
or other organizational or charter documents. Each of the Company and the Subsidiaries is duly qualified to conduct business and is in
good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property
owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be,
could not have or reasonably be expected to result in: (i) a material adverse effect on the legality, validity or enforceability of this
Agreement, (ii) a material adverse effect on the results of operations, assets, business, prospects or condition (financial or otherwise)
of the Company and the Subsidiaries, taken as a whole, from that set forth in the Registration Statement, the Base Prospectus, any Prospectus
Supplement, the Prospectus or the Incorporated Documents, or (iii) a material adverse effect on the Company’s ability to perform
in any material respect on a timely basis its obligations under this Agreement (any of (i), (ii) or (iii), a “Material Adverse
Effect”) and no “Proceeding” (which for purposes of this Agreement shall mean any action, claim, suit, investigation
or proceeding (including, without limitation, an informal investigation or partial proceeding, such as a deposition), whether commenced
or threatened) has been instituted in any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such
power and authority or qualification.
(c)
Authorization and Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the
transactions contemplated by this Agreement and otherwise to carry out its obligations hereunder. The execution and delivery of this
Agreement by the Company and the consummation by it of the transactions contemplated hereby have been duly authorized by all necessary
action on the part of the Company and no further action is required by the Company, the Board or the Company’s stockholders in
connection herewith other than in connection with the Required Approvals. This Agreement has been duly executed and delivered by the
Company and, when delivered in accordance with the terms hereof, will constitute the valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as
limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar
as indemnification and contribution provisions may be limited by applicable law.
(d)
No Conflicts. The execution, delivery and performance by the Company of this Agreement, the issuance and sale of the Shares and
the consummation by it of the transactions contemplated hereby do not and will not (i) conflict with or violate any provision of the
Company’s or any Subsidiary’s certificate or articles of incorporation, bylaws or other organizational or charter documents,
or (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under,
result in the creation of any Lien upon any of the properties or assets of the Company or any Subsidiary, or give to others any rights
of termination, amendment, anti-dilution or similar adjustments, acceleration or cancellation (with or without notice, lapse of time
or both) of, any agreement, credit facility, debt or other instrument (evidencing a Company or Subsidiary debt or otherwise) or other
understanding to which the Company or any Subsidiary is a party or by which any property or asset of the Company or any Subsidiary is
bound or affected, or (iii) subject to the Required Approvals, conflict with or result in a violation of any law, rule, regulation, order,
judgment, injunction, decree or other restriction of any court or governmental authority to which the Company or a Subsidiary is subject
(including federal and state securities laws and regulations), or by which any property or asset of the Company or a Subsidiary is bound
or affected; except in the case of each of clauses (ii) and (iii), such as could not, individually or in the aggregate, have or reasonably
be expected to result in a Material Adverse Effect.
(e)
Filings, Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of, give any
notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority or other
“Person” (defined as an individual or corporation, partnership, trust, incorporated or unincorporated association, joint
venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind,
including the Trading Market) in connection with the execution, delivery and performance by the Company of this Agreement, other than
(i) the filings required by this Agreement, (ii) the filing with the Commission of the Prospectus Supplement, (iii) the filing of application(s)
to and approval by the Trading Market for the listing of the Shares for trading thereon in the time and manner required thereby, and
(iv) such filings as are required to be made under applicable state securities laws and the rules and regulations of the Financial Industry
Regulatory Authority, Inc. (“FINRA”) (collectively, the “Required Approvals”).
(f)
Issuance of Shares. The Shares are duly authorized and, when issued and paid for in accordance with this Agreement, will be duly
and validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company. The Company has reserved from its
duly authorized capital stock the maximum number of Common Shares issuable pursuant to this Agreement. The issuance by the Company of
the Shares has been registered under the Act and all of the Shares are freely transferable and tradable by the purchasers thereof without
restriction (other than any restrictions arising solely from an act or omission of such a purchaser). The Shares are being issued pursuant
to the Registration Statement and the issuance of the Shares has been registered by the Company under the Act. The “Plan of
Distribution” section within the Registration Statement permits the issuance and sale of the Shares as contemplated by this
Agreement. Upon receipt of the Shares, the purchasers of such Shares will have good and marketable title to such Shares and the Shares
will be freely tradable on the Trading Market.
(g)
Capitalization. The capitalization of the Company is as set forth in the SEC Reports. The Company has not issued any capital stock
since its most recently filed periodic report under the Exchange Act, other than pursuant to the exercise of employee equity awards under
the Company’s equity award plans, the issuance of Common Shares to employees pursuant to the Company’s employee stock purchase
plan and pursuant to the conversion and/or exercise of securities exercisable, exchangeable or convertible into Common Shares (“Common
Share Equivalents”) outstanding as of the date of the most recently filed periodic report under the Exchange Act. No Person
has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated
by this Agreement. Except as set forth in the SEC Reports, there are no outstanding options, warrants, scrip rights to subscribe to,
calls or commitments of any character whatsoever relating to, or securities, rights or obligations convertible into or exercisable or
exchangeable for, or giving any Person any right to subscribe for or acquire, any Common Shares or the capital stock of any Subsidiary,
or contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound to issue additional
Common Shares or Common Share Equivalents or capital stock of any Subsidiary. The issuance and sale of the Shares will not obligate the
Company or any Subsidiary to issue Common Shares or other securities to any Person. There are no outstanding securities or instruments
of the Company or any Subsidiary with any provision that adjusts the exercise, conversion, exchange or reset price of such security or
instrument upon an issuance of securities by the Company or any Subsidiary. There are no outstanding securities or instruments of the
Company or any Subsidiary that contain any redemption or similar provisions, and there are no contracts, commitments, understandings
or arrangements by which the Company or any Subsidiary is or may become bound to redeem a security of the Company or such Subsidiary.
The Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement.
All of the outstanding shares of capital stock of the Company are duly authorized, validly issued, fully paid and nonassessable, have
been issued in compliance with all federal and state securities laws, and none of such outstanding shares was issued in violation of
any preemptive rights or similar rights to subscribe for or purchase securities. No further approval or authorization of any stockholder,
the Board or others is required for the issuance and sale of the Shares. There are no stockholders agreements, voting agreements or other
similar agreements with respect to the Company’s capital stock to which the Company is a party or, to the knowledge of the Company,
between or among any of the Company’s stockholders.
(h)
Registration Statement. The Company meets the requirements for use of Form S-3 under the Act and has prepared and filed with the
Commission the Registration Statement, including the Base Prospectus, for registration under the Act of the offering and sale of the
Shares. Such Registration Statement is effective and available for the offer and sale of the Shares as of the date hereof. As filed,
the Base Prospectus contains all information required by the Act and the rules thereunder, and, except to the extent the Manager shall
agree in writing to a modification, shall be in all substantive respects in the form furnished to the Manager prior to the Execution
Time or prior to any such time this representation is repeated or deemed to be made. The Registration Statement, at the Execution Time,
each such time this representation is repeated or deemed to be made, and at all times during which a prospectus is required by the Act
to be delivered (whether physically or through compliance with Rule 172, 173 or any similar rule) in connection with any offer or sale
of the Shares, meets the requirements set forth in Rule 415(a)(1)(x). The initial Effective Date of the Registration Statement was not
earlier than the date three years before the Execution Time. The Company meets the transaction requirements as set forth in General Instruction
I.B.1 of Form S-3 or, if applicable, as set forth in General Instruction I.B.6 of Form S-3 with respect to the aggregate market value
of securities being sold pursuant to this offering and during the twelve (12) months prior to this offering.
(i)
Accuracy of Incorporated Documents. The Incorporated Documents, when they were filed with the Commission, conformed in all material
respects to the requirements of the Exchange Act and the rules thereunder, and none of the Incorporated Documents, when they were filed
with the Commission, contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made not misleading; and any further documents so filed and incorporated
by reference in the Registration Statement, the Base Prospectus, the Prospectus Supplement or the Prospectus, when such documents are
filed with the Commission, will conform in all material respects to the requirements of the Exchange Act and the rules thereunder, as
applicable, and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not misleading.
(j)
Ineligible Issuer. (i) 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)) of the Shares and (ii) as of the Execution Time and on each
such time this representation is repeated or deemed to be made (with such date being used as the determination date for purposes of this
clause (ii)), the Company was not and is not an Ineligible Issuer (as defined in Rule 405), without taking account of any determination
by the Commission pursuant to Rule 405 that it is not necessary that the Company be considered an Ineligible Issuer.
(k)
Free Writing Prospectus. The Company is eligible to use Issuer Free Writing Prospectuses. Each Issuer Free Writing Prospectus
does not include any information the substance of which conflicts with the information contained in the Registration Statement, including
any Incorporated Documents and any prospectus supplement deemed to be a part thereof that has not been superseded or modified; and each
Issuer Free Writing Prospectus does not contain any untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The 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 Manager specifically for use therein. Any Issuer Free Writing Prospectus that the Company
is required to file pursuant to Rule 433(d) has been, or will be, filed with the Commission in accordance with the requirements of the
Act and the rules thereunder. Each Issuer Free Writing Prospectus that the Company has filed, or is required to file, pursuant to Rule
433(d) or that was prepared by or behalf of or used by the Company complies or will comply in all material respects with the requirements
of the Act and the rules thereunder. The Company will not, without the prior consent of the Manager, prepare, use or refer to, any Issuer
Free Writing Prospectuses.
(l)
Proceedings Related to Registration Statement. The Registration Statement is not the subject of a pending proceeding or examination
under Section 8(d) or 8(e) of the Act, and the Company is not the subject of a pending proceeding under Section 8A of the Act in connection
with the offering of the Shares. The Company has not received any notice that the Commission has issued or intends to issue a stop-order
with respect to the Registration Statement or that the Commission otherwise has suspended or withdrawn the effectiveness of the Registration
Statement, either temporarily or permanently, or intends or has threatened in writing to do so.
(m)
SEC Reports. The Company has filed all reports, schedules, forms, statements and other documents required to be filed by the Company
under the Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the two years preceding the date hereof
(or such shorter period as the Company was required by law or regulation to file such material) (the foregoing materials, including the
exhibits thereto and documents incorporated by reference therein, together with the Prospectus and the Prospectus Supplement, being collectively
referred to herein as the “SEC Reports”) on a timely basis or has received a valid extension of such time of filing
and has filed any such SEC Reports prior to the expiration of any such extension. As of their respective dates, the SEC Reports complied
in all material respects with the requirements of the Act and the Exchange Act, as applicable, and none of the SEC Reports, when filed,
contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order
to make the statements therein, in the light of the circumstances under which they were made, not misleading. The financial statements
of the Company included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and
regulations of the Commission with respect thereto as in effect at the time of filing. Such financial statements have been prepared in
accordance with United States generally accepted accounting principles applied on a consistent basis during the periods involved (“GAAP”),
except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements
may not contain all footnotes required by GAAP, and fairly present in all material respects the financial position of the Company and
its consolidated Subsidiaries as of and for the dates thereof and the results of operations and cash flows for the periods then ended,
subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments.
(n)
[RESERVED]
(o)
Material Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest audited financial statements included
within the SEC Reports, except as specifically disclosed in a subsequent SEC Report filed prior to the date on which this representation
is being made, (i) there has been no event, occurrence or development that has had or that could reasonably be expected to result in
a Material Adverse Effect, (ii) the Company has not incurred any liabilities (contingent or otherwise) other than (A) trade payables
and accrued expenses incurred in the ordinary course of business consistent with past practice and (B) liabilities not required to be
reflected in the Company’s financial statements pursuant to GAAP or disclosed in filings made with the Commission, (iii) the Company
has not altered its method of accounting, (iv) the Company has not declared or made any dividend or distribution of cash or other property
to its stockholders or purchased, redeemed or made any agreements to purchase or redeem any shares of its capital stock, (v) the Company
has not issued any equity securities to any officer, director or “Affiliate” (defined as any Person that, directly
or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person, as such terms
are used in and construed under Rule 144 under the Act), except pursuant to existing Company equity award plans, and (vi) no executive
officer of the Company or member of the Board has resigned from any position with the Company. The Company does not have pending before
the Commission any request for confidential treatment of information. Except for the issuance of the Shares contemplated by this Agreement,
no event, liability, fact, circumstance, occurrence or development has occurred or exists or is reasonably expected to occur or exist
with respect to the Company or its Subsidiaries or their respective businesses, prospects, properties, operations, assets or financial
condition that would be required to be disclosed by the Company under applicable securities laws at the time this representation is made
or deemed made that has not been publicly disclosed at least one (1) Trading Day prior to the date that this representation is made.
(p)
Litigation. Except as set forth in the SEC Reports, there is no action, suit, inquiry, notice of violation, proceeding or investigation
pending or, to the knowledge of the Company, threatened against or affecting the Company, any Subsidiary or any of their respective properties
before or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign)
(collectively, an “Action”). None of the Actions set forth in the SEC Reports, (i) adversely affects or challenges
the legality, validity or enforceability of this Agreement or the Shares or (ii) could, if there were an unfavorable decision, have or
reasonably be expected to result in a Material Adverse Effect. Neither the Company nor any Subsidiary, nor any director or officer thereof,
is or has been the subject of any Action involving a claim of violation of or liability under federal or state securities laws or a claim
of breach of fiduciary duty. There has not been, and to the knowledge of the Company, there is not pending or contemplated, any investigation
by the Commission involving the Company or any current or former director or officer of the Company. The Commission has not issued any
stop order or other order suspending the effectiveness of any registration statement filed by the Company or any Subsidiary under the
Exchange Act or the Act.
(q)
Labor Relations. No labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the employees
of the Company, which could reasonably be expected to result in a Material Adverse Effect. None of the Company’s or its Subsidiaries’
employees is a member of a union that relates to such employee’s relationship with the Company or such Subsidiary, and neither
the Company nor any of its Subsidiaries is a party to a collective bargaining agreement, and the Company and its Subsidiaries believe
that their relationships with their employees are good. To the knowledge of the Company, no executive officer of the Company or any Subsidiary,
is, or is now expected to be, in violation of any material term of any employment contract, confidentiality, disclosure or proprietary
information agreement or non-competition agreement, or any other contract or agreement or any restrictive covenant in favor of any third
party, and the continued employment of each such executive officer does not subject the Company or any of its Subsidiaries to any liability
with respect to any of the foregoing matters. The Company and its Subsidiaries are in compliance with all applicable U.S. federal, state,
local and foreign laws and regulations relating to employment and employment practices, terms and conditions of employment and wages
and hours, except where the failure to be in compliance could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(r)
Compliance. Neither the Company nor any Subsidiary: (i) is in default under or in violation of (and no event has occurred that
has not been waived that, with notice or lapse of time or both, would result in a default by the Company or any Subsidiary under), nor
has the Company or any Subsidiary received notice of a claim that it is in default under or that it is in violation of, any indenture,
loan or credit agreement or any other agreement or instrument to which it is a party or by which it or any of its properties is bound
(whether or not such default or violation has been waived), (ii) is in violation of any judgment, decree or order of any court, arbitrator
or other governmental authority or (iii) is or has been in violation of any statute, rule, ordinance or regulation of any governmental
authority, including without limitation all foreign, federal, state and local laws relating to taxes, environmental protection, occupational
health and safety, product quality and safety and employment and labor matters, except in each case as could not have or reasonably be
expected to result in a Material Adverse Effect.
(s)
Environmental Laws. The Company and its Subsidiaries (i) are in compliance with all federal, state, local and foreign laws relating
to pollution or protection of human health or the environment (including ambient air, surface water, groundwater, land surface or subsurface
strata), including laws relating to emissions, discharges, releases or threatened releases of chemicals, pollutants, contaminants, or
toxic or hazardous substances or wastes (collectively, “Hazardous Materials”) into the environment, or otherwise relating
to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials, as well
as all authorizations, codes, decrees, demands, or demand letters, injunctions, judgments, licenses, notices or notice letters, orders,
permits, plans or regulations, issued, entered, promulgated or approved thereunder (“Environmental Laws”); (ii) have
received all permits licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses;
and (iii) are in compliance with all terms and conditions of any such permit, license or approval where in each clause (i), (ii) and
(iii), the failure to so comply could be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect.
(t)
Regulatory Permits. The Company and the Subsidiaries possess all certificates, authorizations and permits issued by the appropriate
federal, state, local or foreign regulatory authorities necessary to conduct their respective businesses as described in the SEC Reports,
except where the failure to possess such permits could not reasonably be expected to result in a Material Adverse Effect (“Material
Permits”), and neither the Company nor any Subsidiary has received any notice of proceedings relating to the revocation or
modification of any Material Permit.
(u)
Title to Assets. The Company and the Subsidiaries have good and marketable title in fee simple to all real property owned by them
and good and marketable title in all personal property owned by them that is material to the business of the Company and the Subsidiaries,
in each case free and clear of all Liens, except for (i) Liens as do not materially affect the value of such property and do not materially
interfere with the use made and proposed to be made of such property by the Company and the Subsidiaries and (ii) Liens for the payment
of federal, state or other taxes, for which appropriate reserves have been made therefor in accordance with GAAP and, the payment of
which is neither delinquent nor subject to penalties. Any real property and facilities held under lease by the Company and the Subsidiaries
are held by them under valid, subsisting and enforceable leases with which the Company and the Subsidiaries are in compliance.
(v)
Intellectual Property. The Company and the Subsidiaries have, or have rights to use, all patents, patent applications, trademarks,
trademark applications, service marks, trade names, trade secrets, inventions, copyrights, licenses and other intellectual property rights
and similar rights necessary or required for use in connection with their respective businesses as described in the SEC Reports and which
the failure to so have could have a Material Adverse Effect (collectively, the “Intellectual Property Rights”). None
of, and neither the Company nor any Subsidiary has received a notice (written or otherwise) that any of, the Intellectual Property Rights
has expired, terminated or been abandoned, or is expected to expire or terminate or be abandoned, within two (2) years from the date
of this Agreement. Neither the Company nor any Subsidiary has received, since the date of the latest audited financial statements included
within the SEC Reports, a written notice of a claim or otherwise has any knowledge that the Intellectual Property Rights violate or infringe
upon the rights of any Person, except as could not have or reasonably be expected to not have a Material Adverse Effect. To the knowledge
of the Company, all such Intellectual Property Rights are enforceable and there is no existing infringement by another Person of any
of the Intellectual Property Rights. The Company and its Subsidiaries have taken reasonable security measures to protect the secrecy,
confidentiality and value of all of their intellectual properties, except where failure to do so could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. The Company has no knowledge of any facts that would preclude it from having
valid license rights or clear title to the Intellectual Property rights. The Company has no knowledge that it lacks or will be unable
to obtain any rights or licenses to use all Intellectual Property Rights that are necessary to conduct its business.
(w)
Insurance. The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such losses
and risks and in such amounts as are prudent and customary in the businesses in which the Company and the Subsidiaries are engaged, including,
but not limited to, directors and officers insurance coverage. Neither the Company nor any Subsidiary has any reason to believe that
it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue its business without a significant increase in cost.
(x)
Affiliate Transactions. Except as set forth in the SEC Reports, none of the officers or directors of the Company or any Subsidiary
and, to the knowledge of the Company, none of the employees of the Company or any Subsidiary is presently a party to any transaction
with the Company or any Subsidiary (other than for services as employees, officers and directors), including any contract, agreement
or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from,
providing for the borrowing of money from or lending of money to or otherwise requiring payments to or from any officer, director or
such employee or, to the knowledge of the Company, any entity in which any officer, director, or any such employee has a substantial
interest or is an officer, director, trustee, stockholder, member or partner, in each case in excess of $120,000 other than for (i) payment
of salary or consulting fees for services rendered, (ii) reimbursement for expenses incurred on behalf of the Company and (iii) other
employee benefits, including equity award agreements under any equity award plan of the Company.
(y)
Sarbanes Oxley Compliance. The Company and the Subsidiaries are in compliance with any and all applicable requirements of the
Sarbanes-Oxley Act of 2002, as amended, that are effective as of the date hereof, and any and all applicable rules and regulations promulgated
by the Commission thereunder that are effective as of the date hereof. The Company and the Subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurance that: (i) transactions are executed in accordance with management’s
general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity
with GAAP and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management’s general
or specific authorization, and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals
and appropriate action is taken with respect to any differences. The Company and the Subsidiaries have established disclosure controls
and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company and the Subsidiaries and designed such disclosure
controls and procedures to ensure that information required to be disclosed by the Company in the reports it files or submits under the
Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and forms.
The Company’s certifying officers have evaluated the effectiveness of the disclosure controls and procedures of the Company and
the Subsidiaries as of the end of the period covered by the most recently filed periodic report under the Exchange Act (such date, the
“Evaluation Date”). The Company presented in its most recently filed periodic report under the Exchange Act the conclusions
of the certifying officers about the effectiveness of the disclosure controls and procedures based on their evaluations as of the Evaluation
Date. Since the Evaluation Date, there have been no changes in the internal control over financial reporting (as such term is defined
in the Exchange Act) of the Company and its Subsidiaries that have materially affected, or is reasonably likely to materially affect,
the internal control over financial reporting of the Company and its Subsidiaries.
(z)
Certain Fees. Other than payments to be made to the Manager, no brokerage or finder’s fees or commissions are or will be
payable by the Company or any Subsidiary to any broker, financial advisor or consultant, finder, placement agent, investment banker,
bank or other Person with respect to the transactions contemplated by this Agreement. The Manager shall have no obligation with respect
to any fees or with respect to any claims made by or on behalf of other Persons for fees of a type contemplated in this Section that
may be due in connection with the transactions contemplated by this Agreement.
(aa)
No Other Sales Agency Agreement. The Company has not entered into any other sales agency agreements or other similar arrangements
with any agent or any other representative in respect of at the market offerings of the Shares.
(bb)
Investment Company. The Company is not required to be registered as an “investment company” within the meaning of
the Investment Company Act of 1940, as amended, and the Company shall conduct its business in a manner so that it will not be required
to register as an “investment company” under the Investment Company Act of 1940, as amended.
(cc)
Listing and Maintenance Requirements. The Common Shares are listed on the Trading Market, and the issuance of the Shares as contemplated
by this Agreement does not contravene the rules and regulations of the Trading Market. The Common Shares are registered pursuant to Section
12(b) or 12(g) of the Exchange Act, and the Company has taken no action designed to, or which to its knowledge is likely to have the
effect of, terminating the registration of the Common Shares under the Exchange Act nor has the Company received any notification that
the Commission is contemplating terminating such registration. Except as set forth in the SEC Reports, the Company has not, in the 12
months preceding the date hereof, received notice from any Trading Market on which the Common Shares are or have been listed or quoted
to the effect that the Company is not in compliance with the listing or maintenance requirements of such Trading Market. The Common Shares
is currently eligible for electronic transfer through the Depository Trust Company or another established clearing corporation and the
Company is current in payment of the fees to the Depository Trust Company (or such other established clearing corporation) in connection
with such electronic transfer.
(dd)
Application of Takeover Protections. The Company and the Board have taken all necessary action, if any, in order to render inapplicable
any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or other similar
anti-takeover provision under the Company’s certificate of incorporation (or similar charter documents) or the laws of its state
of incorporation that is or could become applicable to the Shares.
(ee)
Solvency. Based on the consolidated financial condition of the Company as of the date hereof, (i) the fair saleable value of the
Company’s assets exceeds the amount that will be required to be paid on or in respect of the Company’s existing debts and
other liabilities (including known contingent liabilities) as they mature, (ii) the Company’s assets do not constitute unreasonably
small capital to carry on its business as now conducted and as proposed to be conducted including its capital needs taking into account
the particular capital requirements of the business conducted by the Company, consolidated and projected capital requirements and capital
availability thereof, and (iii) the current cash flow of the Company, together with the proceeds the Company would receive, were it to
liquidate all of its assets, after taking into account all anticipated uses of the cash, would be sufficient to pay all amounts on or
in respect of its liabilities when such amounts are required to be paid. The Company does not intend to incur debts beyond its ability
to pay such debts as they mature (taking into account the timing and amounts of cash to be payable on or in respect of its debt) within
one year from the date hereof. The Company has no knowledge of any facts or circumstances which lead it to believe that it will file
for reorganization or liquidation under the bankruptcy or reorganization laws of any jurisdiction within one year from the date hereof.
The SEC Reports set forth as of the date hereof all outstanding secured and unsecured Indebtedness of the Company or any Subsidiary,
or for which the Company or any Subsidiary has commitments. For the purposes of this Agreement, “Indebtedness” means
(x) any liabilities for borrowed money or amounts owed in excess of $50,000 (other than trade accounts payable incurred in the ordinary
course of business), (y) all guaranties, endorsements and other contingent obligations in respect of indebtedness of others, whether
or not the same are or should be reflected in the Company’s consolidated balance sheet (or the notes thereto), except guaranties
by endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business; and (z)
the present value of any lease payments in excess of $50,000 due under leases required to be capitalized in accordance with GAAP. Neither
the Company nor any Subsidiary is in default with respect to any Indebtedness.
(ff)
Tax Status. Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result in a
Material Adverse Effect, the Company and its Subsidiaries each (i) has made or filed all United States federal, state and local income
and all foreign income and franchise tax returns, reports and declarations required by any jurisdiction to which it is subject, (ii)
has paid all taxes and other governmental assessments and charges that are material in amount, shown or determined to be due on such
returns, reports and declarations and (iii) has set aside on its books provision reasonably adequate for the payment of all material
taxes for periods subsequent to the periods to which such returns, reports or declarations apply. There are no unpaid taxes in any material
amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company or of any Subsidiary know of no
basis for any such claim.
(gg)
Foreign Corrupt Practices. Neither the Company nor any Subsidiary, nor to the knowledge of the Company or any Subsidiary, any
agent or other person acting on behalf of the Company or any Subsidiary, has (i) directly or indirectly, used any funds for unlawful
contributions, gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful
payment to foreign or domestic government officials or employees or to any foreign or domestic political parties or campaigns from corporate
funds, (iii) failed to disclose fully any contribution made by the Company or any Subsidiary (or made by any person acting on its behalf
of which the Company is aware) which is in violation of law, or (iv) violated in any material respect any provision of the Foreign Corrupt
Practices Act of 1977, as amended.
(hh)
Accountants. The Company’s accounting firm is set forth in the SEC Reports. To the knowledge and belief of the Company,
such accounting firm (i) is a registered public accounting firm as required by the Exchange Act and (ii) shall express its opinion with
respect to the financial statements to be included in the Company’s Annual Report for the fiscal year ending December 31, 2024.
(ii)
Regulation M Compliance. The Company has not, and to its knowledge no one acting on its behalf has, (i) taken, directly or indirectly,
any action designed to cause or to result in the stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of any of the Shares, (ii) sold, bid for, purchased, or, paid any compensation for soliciting purchases of, any of
the Shares, or (iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase any other securities of
the Company, other than, in the case of clauses (ii) and (iii), compensation paid to the Manager in connection with the Shares.
(jj)
FDA. As to each product subject to the jurisdiction of the U.S. Food and Drug Administration (“FDA”) under
the Federal Food, Drug and Cosmetic Act, as amended, and the regulations thereunder (“FDCA”) that is manufactured,
packaged, labeled, tested, distributed, sold, and/or marketed by the Company or any of its Subsidiaries (each such product, a “Pharmaceutical
Product”), such Pharmaceutical Product is being manufactured, packaged, labeled, tested, distributed, sold and/or marketed
by the Company in compliance with all applicable requirements under FDCA and similar laws, rules and regulations relating to registration,
investigational use, premarket clearance, licensure, or application approval, good manufacturing practices, good laboratory practices,
good clinical practices, product listing, quotas, labeling, advertising, record keeping and filing of reports, except where the failure
to be in compliance would not have a Material Adverse Effect. There is no pending, completed or, to the Company’s knowledge, threatened,
action (including any lawsuit, arbitration, or legal or administrative or regulatory proceeding, charge, complaint, or investigation)
against the Company or any of its Subsidiaries, and none of the Company or any of its Subsidiaries has received any notice, warning letter
or other communication from the FDA or any other governmental entity, which (i) contests the premarket clearance, licensure, registration,
or approval of, the uses of, the distribution of, the manufacturing or packaging of, the testing of, the sale of, or the labeling and
promotion of any Pharmaceutical Product, (ii) withdraws its approval of, requests the recall, suspension, or seizure of, or withdraws
or orders the withdrawal of advertising or sales promotional materials relating to, any Pharmaceutical Product, (iii) imposes a clinical
hold on any clinical investigation by the Company or any of its Subsidiaries, (iv) enjoins production at any facility of the Company
or any of its Subsidiaries, (v) enters or proposes to enter into a consent decree of permanent injunction with the Company or any of
its Subsidiaries, or (vi) otherwise alleges any violation of any laws, rules or regulations by the Company or any of its Subsidiaries,
and which, either individually or in the aggregate, would have a Material Adverse Effect. The properties, business and operations of
the Company have been and are being conducted in all material respects in accordance with all applicable laws, rules and regulations
of the FDA. The Company has not been informed by the FDA that the FDA will prohibit the marketing, sale, license or use in the United
States of any product proposed to be developed, produced or marketed by the Company nor has the FDA expressed any concern as to approving
or clearing for marketing any product being developed or proposed to be developed by the Company.
(kk)
Equity Award Plans. Each equity award granted by the Company under the Company’s equity award plan was granted (i) in accordance
with the terms of the Company’s equity award plan and (ii) with an exercise price at least equal to the fair market value of the
Common Shares on the date such equity award would be considered granted under GAAP and applicable law. No equity award granted under
the Company’s equity award plan has been backdated. The Company has not knowingly granted, and there is no and has been no Company
policy or practice to knowingly grant, equity awards prior to, or otherwise knowingly coordinate the grant of equity awards with, the
release or other public announcement of material information regarding the Company or its Subsidiaries or their financial results or
prospects.
(ll)
Cybersecurity. (i)(x) There has been no security breach or other compromise of or relating to any of the Company’s or any
Subsidiary’s information technology and computer systems, networks, hardware, software, data (including the data of its respective
customers, employees, suppliers, vendors and any third party data maintained by or on behalf of it), equipment or technology (collectively,
“IT Systems and Data”) and (y) the Company and the Subsidiaries have not been notified of, and has no knowledge of
any event or condition that would reasonably be expected to result in, any security breach or other compromise to its IT Systems and
Data; (ii) the Company and the Subsidiaries are presently in compliance with all applicable laws or statutes and all judgments, orders,
rules and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations
relating to the privacy and security of IT Systems and Data and to the protection of such IT Systems and Data from unauthorized use,
access, misappropriation or modification, except as would not, individually or in the aggregate, have a Material Adverse Effect; (iii)
the Company and the Subsidiaries have implemented and maintained commercially reasonable safeguards to maintain and protect its material
confidential information and the integrity, continuous operation, redundancy and security of all IT Systems and Data; and (iv) the Company
and the Subsidiaries have implemented backup and disaster recovery technology consistent with industry standards and practices.
(mm)
Compliance with Data Privacy Laws. (i) The Company and the Subsidiaries are, and at all times during the past three years were,
in compliance with all applicable data privacy and security laws and regulations, including, as applicable, the European Union General
Data Protection Regulation (“GDPR”) (EU 2016/679) (collectively, “Privacy Laws”); (ii) the Company
and the Subsidiaries have in place, comply with, and take appropriate steps reasonably designed to ensure compliance with their policies
and procedures relating to data privacy and security and the collection, storage, use, disclosure, handling and analysis of Personal
Data (the “Policies”); (iii) the Company provides accurate notice of its applicable Policies to its customers, employees,
third party vendors and representatives as required by Privacy Laws; and (iv) applicable Policies provide accurate and sufficient notice
of the Company’s then-current privacy practices relating to its subject matter, and do not contain any material omissions of the
Company’s then-current privacy practices, as required by Privacy Laws. “Personal Data” means (i) a natural person’s
name, street address, telephone number, email address, photograph, social security 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; and (iv) 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 identifiable data related to an identified
person’s health or sexual orientation. (i) None of such disclosures made or contained in any of the Policies have been inaccurate,
misleading, or deceptive in violation of any Privacy Laws and (ii) the execution, delivery and performance of this Agreement will not
result in a breach of any Privacy Laws or Policies. Neither the Company nor the Subsidiaries, (i) has, to the knowledge of the Company,
received written notice of any actual or potential liability of the Company or the Subsidiaries under, or actual or potential violation
by the Company or the Subsidiaries of, any of the Privacy Laws; (ii) is currently conducting or paying for, in whole or in part, any
investigation, remediation or other corrective action pursuant to any regulatory request or demand pursuant to any Privacy Law; or (iii)
is a party to any order, decree, or agreement by or with any court or arbitrator or governmental or regulatory authority that imposed
any obligation or liability under any Privacy Law.
(nn)
Office of Foreign Assets Control. Neither the Company nor any Subsidiary nor, to the Company’s knowledge, any director,
officer, agent, employee or affiliate of the Company or any Subsidiary is currently subject to any U.S. sanctions administered by the
Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”).
(oo)
U.S. Real Property Holding Corporation. The Company is not and has never been a U.S. real property holding corporation within
the meaning of Section 897 of the Internal Revenue Code of 1986, as amended, and the Company shall so certify upon the Manager’s
request.
(pp)
Bank Holding Company Act. Neither the Company nor any of its Subsidiaries or Affiliates is subject to the Bank Holding Company
Act of 1956, as amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve System (the
“Federal Reserve”). Neither the Company nor any of its Subsidiaries or Affiliates owns or controls, directly or indirectly,
five percent (5%) or more of the outstanding shares of any class of voting securities or twenty-five percent (25%) or more of the total
equity of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve. Neither the Company nor any of its
Subsidiaries or Affiliates exercises a controlling influence over the management or policies of a bank or any entity that is subject
to the BHCA and to regulation by the Federal Reserve.
(qq)
Money Laundering. 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,
applicable money laundering statutes and applicable rules and regulations thereunder (collectively, the “Money Laundering Laws”),
and no Action or Proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company
or any Subsidiary with respect to the Money Laundering Laws is pending or, to the knowledge of the Company or any Subsidiary, threatened.
(rr)
FINRA Member Shareholders. There are no affiliations with any FINRA member firm among the Company’s officers, directors
or, to the knowledge of the Company, any five percent (5%) or greater stockholder of the Company, except as set forth in the Registration
Statement, the Base Prospectus, any Prospectus Supplement or the Prospectus.
4.
Agreements. The Company agrees with the Manager that:
(a)
Right to Review Amendments and Supplements to Registration Statement and Prospectus. During any period when the delivery of a
prospectus relating to the Shares is required (including in circumstances where such requirement may be satisfied pursuant to Rule 172,
173 or any similar rule) to be delivered under the Act in connection with the offering or the sale of Shares, the Company will not file
any amendment to the Registration Statement or supplement (including any Prospectus Supplement) to the Base Prospectus unless the Company
has furnished to the Manager a copy for its review prior to filing and will not file any such proposed amendment or supplement to which
the Manager reasonably objects. The Company has properly completed the Prospectus, in a form approved by the Manager, and filed such
Prospectus, as amended at the Execution Time, with the Commission pursuant to the applicable paragraph of Rule 424(b) by the Execution
Time and will cause any supplement to the Prospectus to be properly completed, in a form approved by the Manager, and will file such
supplement with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed thereby and will
provide evidence reasonably satisfactory to the Manager of such timely filing. The Company will promptly advise the Manager (i) when
the Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (ii) when,
during any period when the delivery of a prospectus (whether physically or through compliance with Rule 172, 173 or any similar rule)
is required under the Act in connection with the offering or sale of the Shares, any amendment to the Registration Statement shall have
been filed or become effective (other than any annual report of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange
Act), (iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the
Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose
and (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale
in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent
the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and,
upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from
such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement
and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b)
Subsequent Events. If, at any time on or after an Applicable Time but prior to the related Settlement Date, any event occurs as
a result of which the Registration Statement or Prospectus would include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of the circumstances under which they were made or the circumstances
then prevailing not misleading, the Company will (i) notify promptly the Manager so that any use of the Registration Statement or Prospectus
may cease until such are amended or supplemented; (ii) amend or supplement the Registration Statement or Prospectus to correct such statement
or omission; and (iii) supply any such amendment or supplement to the Manager in such quantities as the Manager may reasonably request.
(c)
Notification of Subsequent Filings. During any period when the delivery of a prospectus relating to the Shares is required (including
in circumstances where such requirement may be satisfied pursuant to Rule 172, 173 or any similar rule) to be delivered under the Act,
any event occurs as a result of which the Prospectus as then supplemented would include any untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not
misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Prospectus
to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Prospectus,
the Company promptly will (i) notify the Manager of any such event, (ii) subject to Section 4(a), prepare and file with the Commission
an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii)
use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as
practicable in order to avoid any disruption in use of the Prospectus and (iv) supply any supplemented Prospectus to the Manager in such
quantities as the Manager may reasonably request.
(d)
Earnings Statements. As soon as practicable, the Company will make generally available to its security holders and to the Manager
an earnings statement or statements of the Company and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act
and Rule 158. For the avoidance of doubt, the Company’s compliance with the reporting requirements of the Exchange Act shall be
deemed to satisfy the requirements of this Section 4(d).
(e)
Delivery of Registration Statement. Upon the request of the Manager, the Company will furnish to the Manager and counsel for the
Manager, without charge, signed copies of the Registration Statement (including exhibits thereto) and, so long as delivery of a prospectus
by the Manager or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule
172, 173 or any similar rule), as many copies of the Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as
the Manager may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the
offering.
(f)
Qualification of Shares. The Company will arrange, if necessary, for the qualification of the Shares for sale under the laws of
such jurisdictions as the Manager may designate and will maintain such qualifications in effect so long as required for the distribution
of the Shares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not
now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering
or sale of the Shares, in any jurisdiction where it is not now so subject.
(g)
Free Writing Prospectus. The Company agrees that, unless it has or shall have obtained the prior written consent of the Manager,
and the Manager agrees with the Company that, unless it has or shall have obtained, as the case may be, the prior written consent of
the Company, it has not made and will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus
or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company
with the Commission or retained by the Company under Rule 433. Any such free writing prospectus consented to by the Manager or the Company
is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (i) it has treated and
will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (ii) it has complied
and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus,
including in respect of timely filing with the Commission, legending and record keeping.
(h)
Subsequent Equity Issuances. The Company shall not deliver any Sales Notice hereunder for at least two (2) Trading Days prior
to any date on which the Company or any Subsidiary offers, sells, issues, contracts to sell, contracts to issue or otherwise disposes
of, directly or indirectly, any other Common Shares or any Common Share Equivalents (other than the Shares) (and any Sales Notice previously
delivered shall not apply during such two (2) Trading Days), subject to Manager’s right to waive this obligation; provided that,
without compliance with the foregoing obligation, the Company may issue and sell Common Shares pursuant to any employee equity plan,
stock ownership plan or dividend reinvestment plan of the Company in effect at the Execution Time, and the Company may issue Common Shares
issuable upon the conversion or exercise of Common Share Equivalents outstanding at the Execution Time.
(i)
Market Manipulation. Until the termination of this Agreement, the Company will not take, directly or indirectly, any action designed
to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization
or manipulation in violation of the Act, Exchange Act or the rules and regulations thereunder of the price of any security of the Company
to facilitate the sale or resale of the Shares or otherwise violate any provision of Regulation M under the Exchange Act.
(j)
Notification of Incorrect Certificate. The Company will, at any time during the term of this Agreement, as supplemented from time
to time, advise the Manager immediately after it shall have received notice or obtained knowledge thereof, of any information or fact
that would alter or affect any opinion, certificate, letter and other document provided to the Manager pursuant to Section 6 herein.
(k)
Certification of Accuracy of Disclosure. Upon commencement of the offering of the Shares under this Agreement (and upon the recommencement
of the offering of the Shares under this Agreement following the termination of a suspension of sales hereunder lasting more than thirty
(30) Trading Days), and each time that (i) the Registration Statement or Prospectus shall be amended or supplemented, other than by means
of Incorporated Documents, (ii) the Company files its Annual Report on Form 10-K under the Exchange Act, (iii) the Company files a quarterly
report on Form 10-Q under the Exchange Act, (iv) the Company files a Current Report on Form 8-K containing amended financial information
(other than information that is furnished and not filed), if the Manager reasonably determines that the information in such Form 8-K
is material, or (v) the Shares are delivered to the Manager as principal at the Time of Delivery pursuant to a Terms Agreement (such
commencement or recommencement date and each such date referred to in (i), (ii), (iii), (iv) and (v) above, a “Representation
Date”), unless waived by the Manager, the Company shall furnish or cause to be furnished to the Manager forthwith a certificate
dated and delivered on the Representation Date, in form reasonably satisfactory to the Manager to the effect that the statements contained
in the certificate referred to in Section 6 of this Agreement which were last furnished to the Manager are true and correct at the Representation
Date, as though made at and as of such date (except that such statements shall be deemed to relate to the Registration Statement and
the Prospectus as amended and supplemented to such date) or, in lieu of such certificate, a certificate of the same tenor as the certificate
referred to in said Section 6, modified as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented
to the date of delivery of such certificate.
(l)
Bring Down Opinions; Negative Assurance. Within five (5) Trading Days of each Representation Date, unless waived by the Manager,
the Company shall furnish or cause to be furnished forthwith to the Manager and to counsel to the Manager written opinions of Company
U.S. Counsel and Company Canadian Counsel, in each case addressed to the Manager and dated and delivered within five (5) Trading Days
of such Representation Date, in form and substance satisfactory to the Manager, including a negative assurance representation. The requirement
to furnish or cause to be furnished such opinions (but not such a negative assurance representation) under this Section 4(l) shall be
waived for any Representation Date other than a Representation Date on which a material amendment to the Registration Statement or Prospectus
is made or the Company files its Annual Report on Form 10-K or a material amendment thereto under the Exchange Act, unless the Manager
reasonably requests such deliverable required by this Section 4(l) in connection with a Representation Date, upon which request such
deliverable shall be deliverable hereunder.
(m)
Auditor Bring Down “Comfort” Letter. Within five (5) Trading Days of each Representation Date, unless waived by the
Manager, the Company shall cause (1) the Company’s auditors (the “Accountants”), or other independent accountants
satisfactory to the Manager forthwith to furnish the Manager a letter, and (2) the Chief Financial Officer of the Company forthwith to
furnish the Manager a certificate, in each case dated within five (5) Trading Days of such Representation Date, in form satisfactory
to the Manager, of the same tenor as the letters and certificate referred to in Section 6 of this Agreement but modified to relate to
the Registration Statement and the Prospectus, as amended and supplemented to the date of such letters and certificate.1 The
requirement to furnish or cause to be furnished a “comfort” letter under this Section 4(m) shall be waived for any Representation
Date other than a Representation Date on which a material amendment to the Registration Statement or Prospectus is made or the Company
files its Annual Report on Form 10-K or a material amendment thereto under the Exchange Act, unless the Manager reasonably requests the
deliverables required by this Section 4(m) in connection with a Representation Date, upon which request such deliverable shall be deliverable
hereunder.
(n)
Due Diligence Session. Upon commencement of the offering of the Shares under this Agreement (and upon the recommencement of the
offering of the Shares under this Agreement following the termination of a suspension of sales hereunder lasting more than thirty (30)
Trading Days), and at each Representation Date, the Company will conduct a due diligence session, in form and substance, reasonably satisfactory
to the Manager, which shall include representatives of management and Accountants. The Company shall cooperate timely with any reasonable
due diligence request from or review conducted by the Manager or its agents from time to time in connection with the transactions contemplated
by this Agreement, including, without limitation, providing information and available documents and access to appropriate corporate officers
and the Company’s agents during regular business hours, and timely furnishing or causing to be furnished such certificates, letters
and opinions from the Company, its officers and its agents, as the Manager may reasonably request. The Company shall reimburse the Manager
for Manager’s counsel’s fees in each such due diligence update session, up to a maximum of $2,500 per update, plus any incidental
expense incurred by the Manager in connection therewith.
(o)
Acknowledgment of Trading. The Company consents to the Manager trading in the Common Shares for the Manager’s own account
and for the account of its clients at the same time as sales of the Shares occur pursuant to this Agreement or pursuant to a Terms Agreement.
1NTD:
given the last sentence of this section, the deleted language isn’t necessary.
(p)
Disclosure of Shares Sold. The Company will disclose in its Annual Reports on Form 10-K and Quarterly Reports on Form 10-Q, as
applicable, the number of Shares sold through the Manager under this Agreement, the Net Proceeds to the Company and the compensation
paid by the Company with respect to sales of Shares pursuant to this Agreement during the relevant quarter; and, if required by any subsequent
change in Commission policy or request, more frequently by means of a Current Report on Form 8-K or a further Prospectus Supplement.
(q)
Rescission Right. If, to the knowledge of the Company, the conditions set forth in Section 6 shall not have been satisfied as
of the applicable Settlement Date, the Company will offer to any Person who has agreed to purchase Shares from the Company as the result
of an offer to purchase solicited by the Manager the right to refuse to purchase and pay for such Shares.
(r)
Bring Down of Representations and Warranties. Each acceptance by the Company of an offer to purchase the Shares hereunder, and
each execution and delivery by the Company of a Terms Agreement, shall be deemed to be an affirmation to the Manager that the representations
and warranties of the Company contained in or made pursuant to this Agreement are true and correct as of the date of such acceptance
or of such Terms Agreement as though made at and as of such date, and an undertaking that such representations and warranties will be
true and correct as of the Settlement Date for the Shares relating to such acceptance or as of the Time of Delivery relating to such
sale, as the case may be, as though made at and as of such date (except that such representations and warranties shall be deemed to relate
to the Registration Statement and the Prospectus as amended and supplemented relating to such Shares).
(s)
Reservation of Shares. The Company shall ensure that there are at all times sufficient Common Shares to provide for the issuance,
free of any preemptive rights, out of its authorized but unissued Common Shares or Common Shares held in treasury, of the maximum aggregate
number of Shares authorized for issuance by the Board pursuant to the terms of this Agreement. The Company will use its commercially
reasonable efforts to cause the Shares to be listed for trading on the Trading Market and to maintain such listing.
(t)
Obligation Under Exchange Act. During any period when the delivery of a prospectus relating to the Shares is required (including
in circumstances where such requirement may be satisfied pursuant to Rule 172, 173 or any similar rule) to be delivered under the Act,
the Company will file all documents required to be filed with the Commission pursuant to the Exchange Act within the time periods required
by the Exchange Act and the regulations thereunder.
(u)
DTC Facility. The Company shall cooperate with the Manager and use its reasonable efforts to permit the Shares to be eligible
for clearance and settlement through the facilities of DTC.
(v)
Use of Proceeds. The Company will apply the Net Proceeds from the sale of the Shares in the manner set forth in the Prospectus.
(w)
Filing of Prospectus Supplement. If any sales are made pursuant to this Agreement which are not made in “at the market”
offerings as defined in Rule 415, including, without limitation, any Placement pursuant to a Terms Agreement, the Company shall file
a Prospectus Supplement describing the terms of such transaction, the amount of Shares sold, the price thereof, the Manager’s compensation,
and such other information as may be required pursuant to Rule 424 and Rule 430B, as applicable, within the time required by Rule 424.
(x)
Additional Registration Statement. To the extent that the Registration Statement is not available for the sales of the Shares
as contemplated by this Agreement, the Company shall file a new registration statement with respect to any additional Common Shares necessary
to complete such sales of the Shares and shall cause such registration statement to become effective as promptly as practicable. After
the effectiveness of any such registration statement, all references to “Registration Statement” included in this
Agreement shall be deemed to include such new registration statement, including all documents incorporated by reference therein pursuant
to Item 12 of Form S-3, and all references to “Base Prospectus” included in this Agreement shall be deemed to include
the final form of prospectus, including all documents incorporated therein by reference, included in any such registration statement
at the time such registration statement became effective.
5.
Payment of Expenses. The Company agrees to pay the costs and expenses incident to the performance of its obligations under this
Agreement, whether or not the transactions contemplated hereby are consummated, including without limitation: (i) the preparation, printing
or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), the
Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction)
and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement,
the Prospectus, and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably
requested for use in connection with the offering and sale of the Shares; (iii) the preparation, printing, authentication, issuance and
delivery of certificates for the Shares, including any stamp or transfer taxes in connection with the original issuance and sale of the
Shares; (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents
printed (or reproduced) and delivered in connection with the offering of the Shares; (v) the registration of the Shares under the Exchange
Act, if applicable, and the listing of the Shares on the Trading Market; (vi) any registration or qualification of the Shares for offer
and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel
for the Manager relating to such registration and qualification); (vii) the transportation and other expenses incurred by or on behalf
of Company representatives in connection with presentations to prospective purchasers of the Shares; (viii) the fees and expenses of
the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; (ix) the
filing fee under FINRA Rule 5110; (x) the reasonable fees and expenses of the Manager’s counsel, not to exceed $100,000 (excluding
any periodic due diligence fees provided for under Section 4(n)), which shall be paid upon the Execution Time; and (xi) all other costs
and expenses incident to the performance by the Company of its obligations hereunder.
6.
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall
be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution
Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) the performance by the Company
of its obligations hereunder and (iii) the following additional conditions:
(a)
Filing of Prospectus Supplement. The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission
have been filed in the manner and within the time period required by Rule 424(b) with respect to any sale of Shares; each Prospectus
Supplement shall have been filed in the manner required by Rule 424(b) within the time period required hereunder and under the Act; any
other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within
the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration
Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or
threatened.
(b)
Delivery of Opinions and Negative Assurance Statement. At the Execution Time and on each Representation Date (unless waived by
the Manager), the Company shall have caused (i) Company Canadian Counsel and Company U.S. Counsel to furnish to the Manager their respective
opinions and (ii) Company U.S. Counsel to furnish to the Manager its negative assurance statement, in each case dated as of such date,
addressed to the Manager and in form and substance acceptable to the Manager.
(c)
Delivery of Officer’s Certificate. At the Execution Time and on each Representation Date (unless waived by the Manager),
the Company shall have furnished or caused to be furnished to the Manager a certificate of the Company signed by the Chief Executive
Officer or the President and the principal financial or accounting officer of the Company, dated as of such date, to the effect that
the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any Prospectus Supplement and any
documents incorporated by reference therein and any supplements or amendments thereto and this Agreement and that:
(i)
the representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect
as if made on such 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 such date;
(ii)
no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings
for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii)
since the date of the most recent financial statements included in the Registration Statement, the Prospectus and the Incorporated Documents,
there has been no Material Adverse Effect on the condition (financial or otherwise), earnings, business or properties of the Company
and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth
in or contemplated in the Registration Statement and the Prospectus.
(d)
Delivery of Accountants’ “Comfort” Letter. At the Execution Time and on each Representation Date (unless waived
by the Manager or otherwise waived in accordance with the terms of Section 4(m)), the Company shall have requested and caused the Accountants
to have furnished to the Manager letters (which may refer to letters previously delivered to the Manager), dated as of such date, in
form and substance satisfactory to the Manager, confirming that they are independent accountants within the meaning of the Act and the
Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and that they have performed a
review of any unaudited interim financial information of the Company included or incorporated by reference in the Registration Statement
and the Prospectus and provide customary “comfort” as to such review in form and substance satisfactory to the Manager.
(e)
No Material Adverse Event. Since the respective dates as of which information is disclosed in the Registration Statement, the
Prospectus and the Incorporated Documents, except as otherwise stated therein, there shall not have been (i) any change or decrease in
previously reported results specified in the letter or letters referred to in paragraph (d) of this Section 6 or (ii) any change, or
any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties
of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Registration Statement, the Prospectus and the Incorporated Documents (exclusive of any amendment
or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager,
so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated
by the Registration Statement (exclusive of any amendment thereof), the Incorporated Documents and the Prospectus (exclusive of any amendment
or supplement thereto).
(f)
Payment of All Fees. The Company shall have paid the required Commission filing fees relating to the Shares within the time period
required by Rule 456(b)(1)(i) of the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r)
of the Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii)
either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(g)
No FINRA Objections. FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and
arrangements under this Agreement.
(h)
Shares Listed on Trading Market. The Shares shall have been listed and admitted and authorized for trading on the Trading Market,
and satisfactory evidence of such actions shall have been provided to the Manager.
(i)
Other Assurances. Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Manager
such further information, certificates and documents as the Manager may reasonably request.
If
any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of
the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance
to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any
time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to
the Company in writing or by telephone and confirmed in writing by email.
The
documents required to be delivered by this Section 6 shall be delivered to the office of Greenberg Traurig, P.A., counsel for the Manager,
at 333 SE 2nd Avenue, Suite 4400, Miami, FL 33131, attention Drew M. Altman, Esq. email: altmand@gtlaw.com, on each such date
as provided in this Agreement.
7.
Indemnification and Contribution.
(a)
Indemnification by Company. The Company agrees to indemnify and hold harmless the Manager, the directors, officers, employees
and agents of the Manager and each person who controls the Manager within the meaning of either the Act or the Exchange Act against any
and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Act, the
Exchange Act or other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement for the registration of the Shares as originally filed or in any amendment thereof, or in
the Base Prospectus, any Prospectus Supplement, the Prospectus, any Issuer Free Writing Prospectus, or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading or arise out of or are based upon any Proceeding, commenced or threatened
(whether or not the Manager is a target of or party to such Proceeding) or result from or relate to any breach of any of the representations,
warranties, covenants or agreements made by the Company in this Agreement, and agrees to reimburse each such indemnified party for any
legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability
or action; provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information furnished to the Company by the Manager specifically for inclusion
therein. This indemnity agreement will be in addition to any liability that the Company may otherwise have.
(b)
Indemnification by Manager. The Manager agrees to indemnify and hold harmless the Company, each of its directors, each of its
officers who signs the Registration Statement, and each person who controls the Company within the meaning of either the Act or the Exchange
Act, to the same extent as the foregoing indemnity from the Company to the Manager, but only with reference to written information relating
to the Manager furnished to the Company by the Manager specifically for inclusion in the documents referred to in the foregoing indemnity;
provided, however, that in no case shall the Manager be responsible for any amount in excess of the Broker Fee applicable
to the Shares and paid hereunder. This indemnity agreement will be in addition to any liability which the Manager may otherwise have.
(c)
Indemnification Procedures. Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement
of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section
7, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will
not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and
such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event,
relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph
(a) or (b) above. The indemnifying party shall be entitled to appoint counsel of the indemnifying party’s choice at the indemnifying
party’s expense to represent the indemnified party in any action for which indemnification is sought (in which case the indemnifying
party shall not thereafter be responsible for the fees and expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party’s election to appoint counsel to represent the indemnified party in an action, the indemnified
party shall have the right to employ separate counsel (including local counsel), and the indemnifying party shall bear the reasonable
fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest, (ii) the actual or potential defendants in, or targets of, any such action
include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may
be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying
party, (iii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of such action or (iv) the indemnifying party shall authorize
the indemnified party to employ separate counsel at the expense of the indemnifying party. An indemnifying party will not, without the
prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether
or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding.
(d)
Contribution. In the event that the indemnity provided in paragraph (a), (b) or (c) of this Section 7 is unavailable to or insufficient
to hold harmless an indemnified party for any reason, the Company and the Manager agree to contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending the same)
(collectively “Losses”) to which the Company and the Manager may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and by the Manager on the other from the offering of the Shares;
provided, however, that in no case shall the Manager be responsible for any amount in excess of the Broker Fee applicable
to the Shares and paid hereunder. If the allocation provided by the immediately preceding sentence is unavailable for any reason, the
Company and the Manager severally shall contribute in such proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of the Company on the one hand and of the Manager on the other in connection with the statements or omissions
which resulted in such Losses as well as any other relevant equitable considerations. Benefits received by the Company shall be deemed
to be equal to the total net proceeds from the offering (before deducting expenses) received by it, and benefits received by the Manager
shall be deemed to be equal to the Broker Fee applicable to the Shares and paid hereunder as determined by this Agreement. Relative fault
shall be determined by reference to, among other things, whether any untrue or any alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information provided by the Company on the one hand or the Manager on
the other, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue
statement or omission. The Company and the Manager agree that it would not be just and equitable if contribution were determined by pro
rata allocation or any other method of allocation which does not take account of the equitable considerations referred to above. Notwithstanding
the provisions of this paragraph (d), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section
7, each person who controls the Manager within the meaning of either the Act or the Exchange Act and each director, officer, employee
and agent of the Manager shall have the same rights to contribution as the Manager, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions
of this paragraph (d).
8.
Termination.
(a)
The Company shall have the right, by giving written notice as hereinafter specified, to terminate the provisions of this Agreement relating
to the solicitation of offers to purchase the Shares in its sole discretion at any time upon five (5) Business Days’ prior written
notice. Any such termination shall be without liability of any party to any other party except that (i) with respect to any pending sale,
through the Manager for the Company, the obligations of the Company, including in respect of compensation of the Manager, shall remain
in full force and effect notwithstanding the termination and (ii) the provisions of Sections 5, 6, 7, 8, 9, 10, 12, the second sentence
of 13, 14 and 15 of this Agreement shall remain in full force and effect notwithstanding such termination.
(b)
The Manager shall have the right, by giving written notice as hereinafter specified, to terminate the provisions of this Agreement relating
to the solicitation of offers to purchase the Shares in its sole discretion at any time. Any such termination shall be without liability
of any party to any other party except that the provisions of Sections 5, 6, 7, 8, 9, 10, 12, the second sentence of 13, 14 and 15 of
this Agreement shall remain in full force and effect notwithstanding such termination.
(c)
This Agreement shall remain in full force and effect until such date that this Agreement is terminated pursuant to Sections 8(a) or (b)
above or otherwise by mutual agreement of the parties, provided that any such termination by mutual agreement shall in all cases be deemed
to provide that Sections 5, 6, 7, 8, 9, 10, 12, the second sentence of 13, 14 and 15 of this Agreement shall remain in full force and
effect.
(d)
Any termination of this Agreement shall be effective on the date specified in such notice of termination, provided that such termination
shall not be effective until the close of business on the date of receipt of such notice by the Manager or the Company, as the case may
be. If such termination shall occur prior to the Settlement Date or Time of Delivery for any sale of the Shares, such sale of the Shares
shall settle in accordance with the provisions of Section 2(b) of this Agreement.
(e)
In the case of any purchase of Shares by the Manager pursuant to a Terms Agreement, the obligations of the Manager pursuant to such Terms
Agreement shall be subject to termination, in the absolute discretion of the Manager, by prompt oral notice given to the Company prior
to the Time of Delivery relating to such Shares, if any, and confirmed promptly by electronic mail, if since the time of execution of
the Terms Agreement and prior to such delivery and payment, (i) trading in the Common Shares shall have been suspended by the Commission
or the Trading Market or trading in securities generally on the Trading Market shall have been suspended or limited or minimum prices
shall have been established on such exchange, (ii) a banking moratorium shall have been declared either by Federal or New York State
authorities or (iii) there shall have occurred any outbreak or escalation of hostilities, declaration by the United States of a national
emergency or war, or other calamity or crisis the effect of which on financial markets is such as to make it, in the sole judgment of
the Manager, impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Prospectus (exclusive
of any amendment or supplement thereto).
9.
Representations and Indemnities to Survive. The respective agreements, representations, warranties, indemnities and other statements
of the Company or its officers and of the Manager set forth in or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by the Manager or the Company or any of the officers, directors, employees, agents or controlling
persons referred to in Section 7, and will survive delivery of and payment for the Shares.
10.
Notices. All communications hereunder will be in writing and effective only on receipt, and will be mailed, delivered, or e-mailed
to the addresses of the Company and the Manager, respectively, set forth on the signature page hereto.
11.
Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors
and the officers, directors, employees, agents and controlling persons referred to in Section 7, and no other person will have any right
or obligation hereunder.
12.
No Fiduciary Duty. The Company hereby acknowledges that (a) the purchase and sale of the Shares pursuant to this Agreement is
an arm’s-length commercial transaction between the Company, on the one hand, and the Manager and any affiliate through which it
may be acting, on the other, (b) the Manager is acting solely as sales agent and/or principal in connection with the purchase and sale
of the Company’s securities and not as a fiduciary of the Company and (c) the Company’s engagement of the Manager in connection
with the offering and the process leading up to the offering is as independent contractors and not in any other capacity. Furthermore,
the Company agrees that it is solely responsible for making its own judgments in connection with the offering (irrespective of whether
the Manager has advised or is currently advising the Company on related or other matters). The Company agrees that it will not claim
that the Manager has rendered advisory services of any nature or respect, or owe an agency, fiduciary or similar duty to the Company,
in connection with such transaction or the process leading thereto.
13.
Integration. This Agreement and any Terms Agreement supersede all prior agreements and understandings (whether written or oral)
between the Company and the Manager with respect to the subject matter hereof. Notwithstanding anything herein to the contrary, the engagement
letters dated September 15, 2023, February 26, 2024, and May 10, 2024, in each case by and between the Company and the Manager, shall
survive the execution and delivery of this Agreement in full force and effect in accordance with their respective terms, provided that,
in the event of a conflict between the terms of an engagement letter, other than with respect to the engagement letter dated May 10,
2024, and this Agreement, the terms of this Agreement shall prevail.
14.
Amendments; Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument
signed, in the case of an amendment, by the Company and the Manager. No waiver of any default with respect to any provision, condition
or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver
of any other provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder
in any manner impair the exercise of any such right.
15.
Applicable Law. This Agreement and any Terms Agreement will be governed by and construed in accordance with the laws of the State
of New York applicable to contracts made and to be performed within the State of New York. Each of the Company and the Manager: (i) agrees
that any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted exclusively in New York Supreme
Court, County of New York, or in the United States District Court for the Southern District of New York, (ii) waives any objection which
it may have or hereafter to the venue of any such suit, action or proceeding, and (iii) irrevocably consents to the exclusive jurisdiction
of the New York Supreme Court, County of New York, and the United States District Court for the Southern District of New York in any
such suit, action or proceeding. Each of the Company and the Manager further agrees to accept and acknowledge service of any and all
process which may be served in any such suit, action or proceeding in the New York Supreme Court, County of New York, or in the United
States District Court for the Southern District of New York and agrees that service of process upon the Company mailed by certified mail
to the Company’s address shall be deemed in every respect effective service of process upon the Company, in any such suit, action
or proceeding, and service of process upon the Manager mailed by certified mail to the Manager’s address shall be deemed in every
respect effective service process upon the Manager, in any such suit, action or proceeding. If either party shall commence an action
or proceeding to enforce any provision of this Agreement, then the prevailing party in such action or proceeding shall be reimbursed
by the other party for its reasonable attorney’s fees and other costs and expenses incurred with the investigation, preparation
and prosecution of such action or proceeding.
16.
Waiver of Jury Trial. The Company hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right
to trial by jury in any legal proceeding arising out of or relating to this Agreement, any Terms Agreement or the transactions contemplated
hereby or thereby.
17.
Counterparts. This Agreement and any Terms Agreement may be executed in one or more counterparts, each one of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon one and the same agreement. Counterparts may be delivered
via electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions
Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com) or other transmission method and any
counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
***************************
18.
Headings. The section headings used in this Agreement and any Terms Agreement are for convenience only and shall not affect the
construction hereof.
If
the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement among the Company and the Manager.
Very
truly yours,
VBI
VaCCINES INC. |
|
|
|
|
By: |
/s/
Jeffrey R. Baxter |
|
Name: |
Jeffrey
R. Baxter |
|
Title: |
President
& CEO |
|
Address
for Notice:
VBI
Vaccines Inc.
160
Second Street, Floor 3
Cambridge,
MA 02142
Attention:
Jeffrey R. Baxter, President & CEO
The
foregoing Agreement is hereby confirmed and accepted as of the date first written above.
H.C.
WAINWRIGHT & CO., LLC |
|
|
|
|
By: |
/s/
Mark W. Viklund |
|
Name: |
Mark
W. Viklund |
|
Title: |
Chief
Executive Officer |
|
Address
for Notice:
430
Park Avenue
New
York, New York 10022
Attention:
Chief Executive Officer
E-mail:
notices@hcwco.com
Form
of Terms Agreement
ANNEX
I
VBI
VACCINES INC.
TERMS
AGREEMENT
Dear
Sirs:
VBI
Vaccines Inc. (the “Company”) proposes, subject to the terms and conditions stated herein and in the At The Market
Offering Agreement, dated May 15, 2024 (the “At The Market Offering Agreement”), between the Company and H.C. Wainwright
& Co., LLC (“Manager”), to issue and sell to Manager the securities specified in the Schedule I hereto
(the “Purchased Shares”).
Each
of the provisions of the At The Market Offering Agreement not specifically related to the solicitation by the Manager, as agent of the
Company, of offers to purchase securities is incorporated herein by reference in its entirety, and shall be deemed to be part of this
Terms Agreement to the same extent as if such provisions had been set forth in full herein. Each of the representations and warranties
set forth therein shall be deemed to have been made at and as of the date of this Terms Agreement and the Time of Delivery, except that
each representation and warranty in Section 3 of the At The Market Offering Agreement which makes reference to the Prospectus (as therein
defined) shall be deemed to be a representation and warranty as of the date of the At The Market Offering Agreement in relation to the
Prospectus, and also a representation and warranty as of the date of this Terms Agreement and the Time of Delivery in relation to the
Prospectus as amended and supplemented to relate to the Purchased Shares.
An
amendment to the Registration Statement (as defined in the At The Market Offering Agreement), or a supplement to the Prospectus, as the
case may be, relating to the Purchased Shares, in the form heretofore delivered to the Manager is now proposed to be filed with the Securities
and Exchange Commission.
Subject
to the terms and conditions set forth herein and in the At The Market Offering Agreement which are incorporated herein by reference,
the Company agrees to issue and sell to the Manager and the latter agrees to purchase from the Company the number of shares of the Purchased
Shares at the time and place and at the purchase price set forth in the Schedule I hereto.
If
the foregoing is in accordance with your understanding, please sign and return to us a counterpart hereof, whereupon this Terms Agreement,
including those provisions of the At The Market Offering Agreement incorporated herein by reference, shall constitute a binding agreement
between the Manager and the Company.
VBI
VACCINES INC.
|
|
|
|
By: |
|
|
Name: |
|
|
Title: |
|
|
ACCEPTED
as of the date first written above.
H.C.
WAINWRIGHT & CO., LLC
|
|
|
|
By: |
|
|
Name: |
|
|
Title: |
|
|
Exhibit
5.1
VBI
Vaccines Inc.
160 Second Street, Floor 3
Cambridge, MA 02142
Prospectus
Supplement
We
have acted as Canadian counsel to VBI Vaccines Inc. (the “Company”), a corporation incorporated under the Business
Corporations Act (British Columbia). We refer to the registration statement on Form S-3 (Registration No. 333-240266), as originally
filed by the Company under the United States Securities Act of 1933, as amended (the “Securities Act”) with
the U.S. Securities and Exchange Commission (the “Commission”) on September 6, 2022 (including information deemed
incorporated by reference therein in accordance with applicable rules of the Commission, the “Registration Statement”),
the base prospectus, dated September 6, 2022, forming part of the Registration Statement, with respect to the offering from time to time
of the Company’s securities (the “Base Prospectus”) and the prospectus supplement, dated May 15, 2024, as filed
pursuant to Rule 424(b) under the Securities Act (the “Prospectus Supplement”, together with the Base Prospectus,
the “Prospectus”), relating to the sale through H.C. Wainwright & Co., LLC, as the sales agent (the “Agent”),
from time to time by the Company of up to $8,468,289 of common shares of the Company (the “Sales Agreement Shares”)
pursuant to the Registration Statement, the Prospectus and the terms of the At The Market Offering Agreement dated May 15, 2024 (the
“Sales Agreement”) between the Agent and the Company,.
We
have examined the Registration Statement and the Prospectus and have reviewed such questions of law as we have considered necessary and
appropriate for the purposes of our opinion set forth below. In rendering our opinion set forth below, we have assumed the authenticity
of all documents submitted to us as originals, the genuineness of all signatures and the conformity to authentic originals of all documents
submitted to us as copies or electronic transmissions. We have also assumed the legal capacity for all purposes relevant hereto of all
natural persons and, with respect to all parties to agreements or instruments relevant hereto other than the Company, that such parties
had the requisite power and authority (corporate or otherwise) to execute, deliver and perform such agreements or instruments, that such
agreements or instruments have been duly authorized by all requisite action (corporate or otherwise), executed and delivered by such
parties and that such agreements or instruments are the legal, valid, binding and enforceable obligations of such parties. As to questions
of fact material to our opinion, we have relied upon certificates of officers of the Company and of public officials. We have not undertaken
any independent investigation to verify the accuracy or completeness of any of the foregoing assumptions.
Our
opinion expressed herein is based on the following assumptions:
(a)
the Registration Statement, as finally amended (including all necessary post-effective amendments), will have become effective under
the Securities Act and such effectiveness will not have been terminated or rescinded,
| 2 |
(b)
the Prospectus will have been prepared and filed in compliance with the Securities Act and the applicable rules and regulations thereunder,
(c)
all Sales Agreement Shares will be offered, issued and sold, as applicable, in compliance with applicable United States federal and state
securities laws and in the manner stated in the Registration Statement and the Prospectus,
(d)
the Sales Agreement will have been duly authorized, executed and delivered by the Company and the Agent, and will constitute legally
valid and binding obligations of the Company and the Agent, enforceable against each of them in accordance with its terms,
(e)
at the time at which any Sales Agreement Shares are issued, there will be sufficient common shares in the capital of the Company authorized
and unissued under the Company’s then operative constating documents and not otherwise reserved for issuance,
(f)
at the time at which any Sales Agreement Shares are issued, the Company validly exists and is duly qualified and in good standing under
the laws of its jurisdiction of incorporation and has the necessary corporate power and authority to issue such Sales Agreement Shares,
(g)
the terms of the Sales Agreement Shares and of their issuance and sale have been duly established in conformity with the Company’s
constating documents, and so as not to violate any applicable law, or result in a default under or breach of any agreement or instrument
binding upon the Company, and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction
over the Company,
(h)
the Company will have received the agreed upon consideration for the issuance of any Sales Agreement Shares and any such Sales Agreement
Shares will have been delivered by or on behalf of the Company against payment therefor, and
(i)
the Sales Agreement Shares will have been duly authorized, established, certificated, executed, delivered, countersigned and registered,
as applicable, in accordance with the provisions of the Company’s constating documents and applicable law.
Based
upon the foregoing, and in reliance thereon, we are of the opinion that the Sales Agreement Shares, when issued and paid for in accordance
with the Sales Agreement and as contemplated in the Prospectus, will be duly authorized, validly issued, fully paid and non-assessable.
The
foregoing opinion is limited to the laws of the Province of British Columbia and the federal laws of Canada applicable therein on the
date of this opinion, and we are expressing no opinion as to the effect of the laws of any other jurisdiction, domestic or foreign. We
have no responsibility or obligation to: (i) update this opinion, (ii) take into account or inform the addressee or any other person
of any changes in law, facts or other developments subsequent to the date hereof that do or may affect the opinion we express, or (iii)
advise the addressee or any other person of any other change in any matter addressed in this opinion. Nor do we have any responsibility
or obligation to consider the applicability or correctness of this opinion to any person other than the addressee.
This
opinion is addressed to the Company in connection with the filing of the Registration Statement and Prospectus Supplement and may not
be relied upon by any other person without our prior written consent. Notwithstanding the foregoing, we hereby consent to the filing
of this opinion as an exhibit to the Registration Statement and to the use of our name in the Base Prospectus and Prospectus Supplement
forming a part of the Registration Statement under the caption “Legal Matters”. In giving this consent, we do not admit that
we are within the category of persons whose consent is required under Section 7 of the Securities Act and the rules and regulations thereunder.
|
Yours very truly, |
|
|
|
/s/ Stikeman Elliott LLP |
|
|
|
Stikeman Elliott LLP |
Exhibit
99.1
VBI
Vaccines Reports First Quarter 2024 Financial Results
|
● |
PreHevbrio®
(Hepatitis B Vaccine [Recombinant]) global net revenue increased 105% year-over-year in the first quarter of 2024 compared
to the first quarter of 2023 |
|
● |
Initial
encouraging tumor response data from randomized Phase 2b study of VBI-1901 in recurrent glioblastoma (GBM) announced in April –
additional data expected mid-year and year-end 2024 |
|
● |
Evaluation
of novel mRNA-launched eVLP (MLE) platform technology underway by potential partners |
CAMBRIDGE,
Mass. (May 15, 2024) – VBI Vaccines Inc. (Nasdaq: VBIV) (VBI), a biopharmaceutical company driven by immunology in the pursuit
of powerful prevention and treatment of disease, today provided a business update and announced financial results for the quarter ended
March 31, 2024.
“To
date in 2024, our focus has centered around pipeline execution, expanding access and increased uptake of PreHevbrio in targeted market
segments, and execution of strategic partnerships to drive opportunity for our portfolio assets, create shareholder value, and strengthen
our balance sheet,” said Jeff Baxter, VBI’s President and CEO. “We remain committed to creating opportunities for our
vaccines, candidates, and technologies to meaningfully impact public health and the lives of patients, providers, and families.”
Recent
Key Program Achievements and Projected Upcoming Milestones
PreHevbrio®
[Hepatitis B Vaccine (Recombinant)]
|
● |
Product
revenue, net increased 105% from Q1 2023, with $1.0 million earned in Q1 2024 |
|
● |
US: |
|
● |
H1
2024 PreHevbrio U.S. sales continue to demonstrate substantial growth over 2023, with over 80% of the 2023 full-year volume being
sold in the first five months of 2024 |
|
● |
Commercial
execution in Q1 2024 created new demand in the large Integrated Delivery Network (IDN) and hospital system space, and saw continued
national and regional pharmacy uptake |
|
● |
Public
sector momentum building with PreHevbrio now available for purchase under the CDC Adult Vaccine Contract |
|
● |
VBI
partners with Valneva SE to make PreHevbri available in certain European countries |
|
● |
In
2023, through this partnership, PreHevbri was launched in the UK, Sweden, Netherlands, and Belgium – in early 2024, PreHevbri
also became available in Denmark and Norway |
VBI-1901:
Cancer Vaccine Immunotherapeutic Candidate – Glioblastoma (GBM)
|
● |
VBI-1901
is being evaluated in an ongoing, randomized, controlled Phase 2b study in comparison to standard-of-care chemotherapy treatment
in recurrent GBM patients |
|
● |
April
2024: Encouraging early tumor response data from Phase 2b study in recurrent GBM presented at World Vaccine Congress
2024: |
|
○ |
VBI-1901
Arm: 2 stable disease (SD) observations among patients eligible for evaluation at week 12 (n=2/5), achieving a 40% disease control
rate, consistent with 44% disease control rate observed in the Phase 1/2a portion of the study |
|
○ |
Control
Arm (carmustine or lomustine chemotherapy): No tumor responses have been observed to date (n=0/6; 0% disease control rate) –
all evaluable patients experienced a 2-8x increase in tumor size by week 6 and have been taken off study protocol |
|
● |
Mid-Year
2024 and Year-End: Additional tumor response data from ongoing Phase 2b study expected mid-year 2024, with initial survival
data from early-enrolled participants expected by year-end 2024, subject to speed of enrollment |
Novel
mRNA-Launched eVLP (MLE) Technology Platform
|
● |
April
2024: Announced expansion of strategic partnership with the Canadian Government to advance the development of the
MLE technology platform, supported by the CAD$28 million funding award remaining under the original agreement |
|
● |
Throughout
2024: MLE technology remains under active evaluation by potential partners |
Other
Achievements and Upcoming Milestones
|
● |
February
2024: Announced a series of agreements with Brii Biosciences (“Brii Bio”), pursuant to which, subject
to achievement of certain activities, VBI would receive up to $33 million in consideration for VBI’s manufacturing capabilities
and certain related assets at Rehovot manufacturing facility, the intellectual property for VBI-2601, VBI’s hepatitis B immunotherapeutic
candidate, and a license for VBI-1901 in the Asia Pacific region, excluding Japan |
|
○ |
Following
completion of the full transaction, target mid-year 2024, VBI expects its total debt principal to be significantly reduced to $17
million |
|
● |
2024:
Additional data expected from Phase 1 study of VBI-2901, VBI’s multivalent pan-coronavirus vaccine candidate – initial
data from which were reported in September 2023 |
Recent
Peer-Reviewed Publications
|
● |
Langley,
Gantt, et al., “An enveloped virus-like particle alum-adjuvanted cytomegalovirus vaccine is safe and immunogenic: A first-in-humans
Canadian Immunization Research Network (CIRN) study” published in Vaccine – Link Here |
Financial
Results for the Three Months Ended March 2024
|
● |
Cash
Position: As of March 31, 2024 VBI had $12.6 million in cash as compared with $23.7 million in cash as of December 31, 2023.
Cash position at March 31, 2024, does not include approximately $2.8 million gross proceeds from registered direct offering of common
shares and warrants, warrant exercises, and sale of common shares through VBI’s at-the-market facility with Jefferies LLC,
subsequent to March 31, 2024 and through early April 2024. |
|
● |
Revenues,
net: Revenues, net for the first quarter 2024 were $1.2 million as compared to $0.5 million for the same period in 2023. The
revenue increase was a result of an increase in product sales of PreHevbrio in the U.S. |
|
● |
Cost
of Revenues: Cost of revenues was $2.7 million in the first quarter of 2024 as compared to $3.6 million in the first quarter
of 2023. The decrease in the cost of revenues was a result of the April 2023 organizational changes and decreased inventory-related
costs, offset by increased product sales. |
|
● |
Research
and Development (R&D): R&D expenses for the first quarter of 2024 were $2.6 million as compared to $3.2 million for the
same period in 2023. R&D expenses were offset by $0.7 million for the three months ended March 31, 2024, and $2.4 million for
the three months ended March 31, 2023 due to government grants and funding arrangements. The decrease in R&D expenses is primarily
a result of decreased development expenses for VBI’s pan-coronavirus and GBM candidates, VBI-2901 and VBI-1901, due to timing
of ongoing clinical studies of each candidate. |
|
● |
Sales,
General, and Administrative (SG&A): SG&A expenses for the first quarter of 2024 were $7.7 million as compared to $13.3
million in the first quarter of 2023. The decrease in SG&A expenses was mainly a result of the April 2023 organizational changes
that reduced our internal workforce, commercial field teams, and operating expenses. |
|
● |
Net
Cash Used in Operating Activities: Net cash used in operating activities for the first quarter of 2024 was $11.8 million compared
to $21.7 million for the same period in 2023. The 46% decrease in cash outflows is largely due to a decrease in net loss as a result
of the April 2023 organizational changes, in addition to the change in operating working capital, most notably in inventory, other
current assets, accounts payable, and other current liabilities. |
|
● |
Net
Loss and Net Loss Per Share: Net loss and net loss per share for the first quarter of 2024 were $17.9 million and $0.73, respectively,
as compared to a net loss and net loss per share of $27.8 million and $3.22 for the first quarter of 2023, respectively. |
|
● |
Net
Loss and Net Loss Per Share, Excluding Foreign Exchange Loss: Net loss and net loss per share, excluding foreign exchange loss,
for the first quarter 2024 were $13.6 million and $0.55, respectively, compared to $20.9 million and $2.43 for the first quarter
2023, respectively. See “Use of Non-GAAP Financial Measures” below for additional information regarding this non-GAAP
financial measure, and “GAAP to Non-GAAP Reconciliation” for a reconciliation of this non-GAAP financial measure to net
loss and net loss per share. |
|
○ |
Foreign
exchange loss for the first quarter of 2024 was $4.3 million as compared to $6.8 million for the first quarter of 2023. Certain intercompany
loans between the Company and its subsidiaries are denominated in a currency other than the functional currency of each entity. The
decrease in foreign exchange loss was a result of the changes in the foreign currency exchange rates (of the New Israeli Shekel and
the Canadian Dollar) in which the foreign currency transactions were denominated for each of those periods, including the foreign
exchange impact of intercompany loans that are translated at period end. |
Use
of Non-GAAP Financial Measures
Net
Loss, Excluding Foreign Exchange Loss, and Net Loss Per Share, Excluding Foreign Exchange Loss, are non-GAAP financial measures and are
defined as Net Loss and Net Loss Per Share excluding the foreign exchange loss in both calculations. Net Loss, Excluding Foreign Exchange
Loss, and Net Loss Per Share, Excluding Foreign Exchange Loss, are not intended to replace Net Loss or Net Loss Per Share or other measures
of financial performance reported in accordance with generally accepted accounting principles (GAAP). VBI’s management believes
that the presentation of Net Loss, Excluding Foreign Exchange Loss, and Net Loss Per Share, Excluding Foreign Exchange Loss, are useful
to investors because management does not consider foreign exchange loss, which is primarily driven by changes in exchange rates related
to certain intercompany loans, and is a non-recurring item, when evaluating VBI’s operating performance. Non-GAAP financial measures
are meant to supplement, and to be viewed in conjunction with, GAAP financial results. The presentation of these non-GAAP financial measures
should not be considered in isolation or as a substitute for comparable GAAP financial measures and should be read only in conjunction
with the Company’s financial statements prepared in accordance with GAAP. Reconciliations of the Company’s non-GAAP measures
are included below.
The
following represents a reconciliation of Net Loss to Net Loss, Excluding Foreign Exchange Loss, and Net Loss Per Share to Net Loss Per
Share, Excluding Foreign Exchange Loss. See “Non-GAAP Financial Information” below for additional information regarding this
non-GAAP financial measure, and “GAAP to Non-GAAP Reconciliation” for a reconciliation of this non-GAAP financial measure
to net loss and net loss per share.
GAAP
to Non-GAAP Reconciliations
The
following represents a reconciliation of Net Loss to Net Loss Excluding Impairment Charges and Foreign Exchange Loss and Net Loss per
Share Excluding Foreign Exchange Loss.
| |
Three Months Ended March 31 | |
| |
2024 | | |
2023 | |
| |
(Unaudited) (In 000’s except share and per share amounts) | |
Net Loss | |
$ | (17,900 | ) | |
$ | (27,751 | ) |
Foreign exchange loss | |
| 4,330 | | |
| 6,813 | |
Net loss, excluding impairment charges and foreign exchange loss | |
$ | (13,570 | ) | |
$ | (20,938 | ) |
| |
| | | |
| | |
Weighted-average number of shares | |
| 24,584,798 | | |
| 8,608,539 | |
Net loss per share, excluding impairment charges and foreign exchange loss | |
$ | (0.55 | ) | |
$ | (2.43 | ) |
About
PreHevbrio [Hepatitis B Vaccine (Recombinant)]
PreHevbrio
is the only 3-antigen hepatitis B vaccine, comprised of the three surface antigens of the hepatitis B virus – Pre-S1, Pre-S2, and
S. It is approved for use in the U.S., European Union/European Economic Area, United Kingdom, Canada, and Israel. The brand names for
this vaccine are: PreHevbrio® (US/Canada), PreHevbri® (EU/EEA/UK), and Sci-B-Vac® (Israel).
Please
visit www.PreHevbrio.com for U.S. Important Safety Information for PreHevbrio [Hepatitis B Vaccine (Recombinant)], or please see
U.S. Full Prescribing Information.
U.S.
Indication
PreHevbrio
is indicated for prevention of infection caused by all known subtypes of hepatitis B virus. PreHevbrio is approved for use in adults
18 years of age and older.
U.S.
Important Safety Information (ISI)
Do
not administer PreHevbrio to individuals with a history of severe allergic reaction (e.g. anaphylaxis) after a previous dose of any hepatitis
B vaccine or to any component of PreHevbrio.
Appropriate
medical treatment and supervision must be available to manage possible anaphylactic reactions following administration of PreHevbrio.
Immunocompromised
persons, including those on immunosuppressant therapy, may have a diminished immune response to PreHevbrio.
PreHevbrio
may not prevent hepatitis B infection, which has a long incubation period, in individuals who have an unrecognized hepatitis B infection
at the time of vaccine administration.
The
most common side effects (> 10%) in adults age 18-44, adults age 45-64, and adults age 65+ were pain and tenderness at the injection
site, myalgia, fatigue, and headache.
There
is a pregnancy exposure registry that monitors pregnancy outcomes in women who received PreHevbrio during pregnancy. Women who receive
PreHevbrio during pregnancy are encouraged to contact 1-888-421-8808 (toll-free).
To
report SUSPECTED ADVERSE REACTIONS, contact VBI Vaccines at 1-888-421-8808 (toll-free) or VAERS at 1-800-822-7967 or www.vaers.hhs.gov.
Please
see Full Prescribing Information.
About
VBI Vaccines Inc.
VBI
Vaccines Inc. (“VBI”) is a biopharmaceutical company driven by immunology in the pursuit of powerful prevention and treatment
of disease. Through its innovative approach to virus-like particles (“VLPs”), including a proprietary enveloped VLP (“eVLP”)
platform technology and a proprietary mRNA-launched eVLP (“MLE”) platform technology, VBI develops vaccine candidates that
mimic the natural presentation of viruses, designed to elicit the innate power of the human immune system. VBI is committed to targeting
and overcoming significant infectious diseases, including hepatitis B, coronaviruses, and cytomegalovirus (CMV), as well as aggressive
cancers including glioblastoma (GBM). VBI is headquartered in Cambridge, Massachusetts, with research operations in Ottawa, Canada, and
a research and manufacturing site in Rehovot, Israel.
Website
Home: http://www.vbivaccines.com/
News
and Resources: http://www.vbivaccines.com/news-and-resources/
Investors:
http://www.vbivaccines.com/investors/
Cautionary
Statement on Forward-looking Information
Certain
statements in this press release that are forward-looking and not statements of historical fact are forward-looking statements within
the meaning of the safe harbor provisions of the Private Securities Litigation Reform Act of 1995 and are forward-looking information
within the meaning of Canadian securities laws (collectively, “forward-looking statements”). The Company cautions that such
forward-looking statements involve risks and uncertainties that may materially affect the Company’s results of operations. Such
forward-looking statements are based on the beliefs of management as well as assumptions made by and information currently available
to management. Actual results could differ materially from those contemplated by the forward-looking statements as a result of certain
factors, including but not limited to, the Company’s ability to regain and maintain compliance with the listing standards of the
Nasdaq Capital Market, the Company’s ability to satisfy all of the conditions to the consummation of the transactions with Brii
Biosciences, the Company’s ability to comply with its obligations under its loan agreement with K2 HealthVentures, the impact of
general economic, industry or political conditions in the United States or internationally; the impact of the COVID-19 endemic on our
clinical studies, manufacturing, business plan, and the global economy; the ability to successfully manufacture and commercialize PreHevbrio/PreHevbri;
the ability to establish that potential products are efficacious or safe in preclinical or clinical trials; the ability to establish
or maintain collaborations on the development of pipeline candidates and the commercialization of PreHevbrio/PreHevbri; the ability to
obtain appropriate or necessary regulatory approvals to market potential products; the ability to obtain future funding for developmental
products and working capital and to obtain such funding on commercially reasonable terms; the Company’s ability to manufacture
product candidates on a commercial scale or in collaborations with third parties; changes in the size and nature of competitors; the
ability to retain key executives and scientists; and the ability to secure and enforce legal rights related to the Company’s products.
A discussion of these and other factors, including risks and uncertainties with respect to the Company, is set forth in the Company’s
filings with the SEC and the Canadian securities authorities, including its Annual Report on Form 10-K filed with the SEC on April 16,
2024, and filed with the Canadian security authorities at sedarplus.ca on April 16, 2024, as may be supplemented or amended by the Company’s
Quarterly Reports on Form 10-Q and Current Reports on Form 8-K. Given these risks, uncertainties and factors, you are cautioned not to
place undue reliance on such forward-looking statements, which are qualified in their entirety by this cautionary statement. All such
forward-looking statements made herein are based on our current expectations and we undertake no duty or obligation to update or revise
any forward-looking statements for any reason, except as required by law.
VBI Vaccines Inc. and Subsidiaries
Selected Condensed Consolidated Balance Sheet
(Unaudited, In Thousands)
| |
Three Months Ended March 31 | |
| |
2024 | | |
2023 | |
| |
(Unaudited) (In 000’s except share and per share amounts) | |
Assets | |
| | | |
| | |
Cash | |
$ | 12,595 | | |
$ | 23,685 | |
Accounts receivable, net | |
| 227 | | |
| - | |
Inventory, net | |
| 9,944 | | |
| 8,499 | |
Prepaid expenses and other current assets | |
| 3,595 | | |
| 4,047 | |
Total current assets | |
| 26,361 | | |
| 36,231 | |
Property and equipment, net | |
| 9,088 | | |
| 9,665 | |
Intangible assets, net | |
| 35,734 | | |
| 36,499 | |
Goodwill | |
| 1,107 | | |
| 1,130 | |
Other non-current assets | |
| 3,153 | | |
| 3,426 | |
Total Assets | |
$ | 75,443 | | |
$ | 86,951 | |
| |
| | | |
| | |
Liabilities and stockholders’ equity | |
| | | |
| | |
Accounts payable | |
$ | 8,871 | | |
$ | 6,431 | |
Other current liabilities | |
| 68,723 | | |
| 69,305 | |
Total current liabilities | |
| 77,594 | | |
| 75,736 | |
Total non-current liabilities | |
| 3,316 | | |
| 3,688 | |
Total liabilities | |
| 80,910 | | |
| 79,424 | |
Total stockholders’ equity | |
| (5,467 | ) | |
| 7,527 | |
Total liabilities and stockholders’ equity | |
$ | 75,443 | | |
$ | 86,951 | |
VBI Vaccines Inc. and Subsidiaries
Condensed Consolidated Statement of Operations and Comprehensive Loss
(Unaudited, In Thousands Except Share and Per Share Amounts)
| |
Three Months Ended March 31 | |
| |
2024 | | |
2023 | |
| |
(Unaudited) | |
Revenues, net | |
$ | 1,214 | | |
$ | 485 | |
Operating expenses | |
| | | |
| | |
Cost of revenues | |
| 2,724 | | |
| 3,559 | |
Research and development | |
| 2,571 | | |
| 3,151 | |
Sales, general, and administrative | |
| 7,671 | | |
| 13,284 | |
Total operating expenses | |
| 12,966 | | |
| 19,994 | |
Loss from operations | |
| (11,752 | ) | |
| (19,509 | ) |
Interest expense, net of interest income | |
| (1,818 | ) | |
| (1,429 | ) |
Foreign exchange loss | |
| (4,330 | ) | |
| (6,813 | ) |
Loss before income taxes | |
| (17,900 | ) | |
| (27,751 | ) |
Income tax benefit | |
| - | | |
| - | |
Net Loss | |
$ | (17,900 | ) | |
$ | (27,751 | ) |
Basic and diluted net loss per share | |
$ | (0.73 | ) | |
$ | (3.22 | ) |
Weighted-average number of shares used to compute basic and diluted net loss per share | |
| 24,584,798 | | |
| 8,608,539 | |
Other comprehensive income | |
| 3,484 | | |
| 6,599 | |
Comprehensive Loss | |
$ | (14,416 | ) | |
$ | (21,152 | ) |
VBI
Contact
Nicole
Anderson
Director,
Corporate Communications & IR
Phone:
(617) 830-3031 x124
Email:
IR@vbivaccines.com
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VBI Vaccines (NASDAQ:VBIV)
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From Nov 2023 to Nov 2024