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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event
reported): February 28, 2024
MERSANA THERAPEUTICS, INC.
(Exact name of registrant as specified in its
charter)
Delaware |
|
001-38129 |
|
04-3562403 |
(State or other jurisdiction
of incorporation) |
|
(Commission
File Number) |
|
(IRS Employer
Identification No.) |
840
Memorial Drive Cambridge,
Massachusetts |
|
02139 |
(Address of Principal Executive Offices)
|
|
(Zip
Code) |
Registrant’s telephone number, including
area code: (617) 498-0020
Not Applicable
(Former name or former address, if changed since
last report)
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
¨ Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨ Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨ Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨ Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b)
of the Act:
Title
of each class |
Trading
Symbol(s) |
Name
of each exchange on which registered |
Common Stock, $0.0001 par value |
MRSN |
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 February 28, 2024, Mersana Therapeutics, Inc.,
a Delaware corporation (the “Company”), entered into a Sales Agreement (the “Sales Agreement”) with Cowen and
Company, LLC as agent (“TD Cowen”) pursuant to which the Company may issue and sell shares of its common stock, $0.0001 par value
per share, having an aggregate offering price of up to $100,000,000 (the “Shares”), from time to time through TD Cowen (the
“Offering”). On February 28, 2024, the Company filed a prospectus supplement with the Securities and Exchange Commission
in connection with the Offering (the “Prospectus Supplement”) under its existing Registration Statement on Form S-3,
as amended by Post-Effective Amendment No. 1 to the Registration Statement on Form S-3 (File No 333-271766), which became effective
on February 28, 2024 (the “Registration Statement”).
Upon delivery of a placement notice and subject
to the terms and conditions of the Sales Agreement, TD Cowen may sell the Shares by any method permitted by law deemed to be an “at
the market offering” (the “Offering”) as defined in Rule 415(a)(4) promulgated under the Securities Act of
1933, as amended (the “Securities Act”), including sales made directly on or through The Nasdaq Global Select Market or on
any other existing trading market for the Company’s common stock.
The Company will designate the maximum amount
of common stock to be sold through TD Cowen in any placement under the Offering. Subject to the terms and conditions of the Sales Agreement,
TD Cowen has agreed to use its commercially reasonable efforts to sell on the Company’s behalf all of the Shares of common stock requested
to be sold by the Company. The Company may instruct TD Cowen not to sell common stock if the sales cannot be effected at or above a price
designated by the Company in a placement notice. The Company or TD Cowen may suspend the offering of the Shares being made through TD Cowen
under the Sales Agreement upon proper notice to the other party. The Company and TD Cowen each have the right, by giving written notice as
specified in the Sales Agreement, to terminate the Sales Agreement in each party’s sole discretion at any time.
The Sales Agreement provides that TD Cowen will
be entitled to aggregate compensation for its services up to 3.0% of the gross sales price per share of all Shares sold through TD Cowen
under the Sales Agreement. The Company has no obligation to sell any Shares under the Sales Agreement. The Company has agreed in the Sales
Agreement to provide indemnification and contribution to TD Cowen against certain liabilities, including liabilities under the Securities
Act.
The Shares will be offered and sold pursuant
to the Registration Statement, and offerings of the Shares will be made only by means of the Prospectus Supplement. This Current Report
on Form 8-K shall not constitute an offer to sell or the solicitation of any 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 such state.
The foregoing description of the material
terms of the Sales Agreement 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 is incorporated herein by reference.
The legal opinion of Wilmer Cutler Pickering
Hale and Dorr LLP, counsel to the Company, relating to the Shares being offered is filed as Exhibit 5.1 to this Current Report on
Form 8-K.
Item 9.01. |
Financial Statements and Exhibits. |
(d) Exhibits
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
|
MERSANA THERAPEUTICS, INC. |
|
|
|
Date: February 28, 2024 |
By: |
/s/ Brian DeSchuytner |
|
|
Brian DeSchuytner |
|
|
Senior Vice President, Chief Operating Officer and Chief Financial Officer |
Exhibit 1.1
Execution Version
MERSANA
THERAPEUTICS, INC.
$100,000,000
common
stock
SALES
AGREEMENT
February 28, 2024
Cowen and Company, LLC
599 Lexington Avenue
New York, NY 10022
Ladies and Gentlemen:
Mersana Therapeutics, Inc.,
a Delaware Corporation (the “Company”), confirms its agreement (this “Agreement”)
with Cowen and Company, LLC (“Cowen”), as follows:
1.
Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the
terms and subject to the conditions set forth herein, it may issue and sell through Cowen, acting as agent and/or principal, shares (the
“Placement Shares”) of the Company’s common stock, par value $0.0001 per share (the “Common
Stock”), having an aggregate offering price of up to $100,000,000. Notwithstanding anything to the contrary contained herein,
the parties hereto agree that compliance with the limitation set forth in this Section 1 on the number of shares of Common Stock
issued and sold under this Agreement shall be the sole responsibility of the Company, and Cowen shall have no obligation in connection
with such compliance. The issuance and sale of Common Stock through Cowen will be effected pursuant to the Registration Statement (as
defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”),
although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement (as defined below) to
issue the Common Stock.
The Company has filed, in
accordance with the provisions of the Securities Act of 1933, as amended, and the rules and regulations thereunder (collectively, the
“Securities Act”), with the Commission a registration statement on Form S-3 (File No. 333-271766), as amended
by any post-effective amendments thereto (the “Base Prospectus”), relating to certain securities, including
the Common Stock, to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed
or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder
(collectively, the “Exchange Act”). The Company has prepared a prospectus supplement specifically relating
to the Placement Shares (the “Prospectus Supplement” and together with the Base Prospectus, the “Sales
Prospectus”) included as part of such registration statement. Following the date that such registration statement is declared
effective, the Company shall furnish to Cowen, for use by Cowen, copies of the Sales Prospectus, as supplemented from time to time, relating
to the Placement Shares. Except where the context otherwise requires, such registration statement, and any post-effective amendment thereto,
when it becomes effective, including all documents filed as part thereof or incorporated by reference therein, and including any information
contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act
or deemed to be a part of such registration statement pursuant to Rule 430B or 462(b) of the Securities Act, or any subsequent registration
statement on Form S-3 filed pursuant to Rule 415(a)(6) under the Securities Act by the Company to cover any Placement Shares, is herein
called the “Registration Statement.” The Sales Prospectus, including all documents incorporated therein by
reference, included in the Registration Statement, as it may be supplemented by one or more additional prospectus supplements, in the
form in which such prospectus and/or Sales Prospectus have most recently been filed by the Company with the Commission pursuant to Rule
424(b) under the Securities Act, together with any “issuer free writing prospectus,” as defined in Rule 433 of the Securities
Act (“Rule 433”), relating to the Placement Shares that (i) is required to be filed with the Commission by
the Company or (ii) is exempt from filing pursuant to Rule 433(d)(5)(i), in each case in the form filed or required to be filed with
the Commission or, if not required to be filed, in the form retained in the Company’s records pursuant to Rule 433(g), is herein
called the “Prospectus.” Any reference herein to the Registration Statement, the Prospectus or any amendment
or supplement thereto shall be deemed to refer to and include the documents incorporated by reference therein, and any reference herein
to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement or the
Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document with the Commission deemed to
be incorporated by reference therein. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or
to any amendment or supplement thereto shall be deemed to include any copy filed with the Commission pursuant to the Electronic Data
Gathering Analysis and Retrieval system (“EDGAR”).
2.
Placements. Each time that the Company wishes to issue and sell the Placement Shares hereunder (each, a “Placement”),
it will notify Cowen by email notice (or other method mutually agreed to in writing by the parties) (a “Placement Notice”)
containing the parameters in accordance with which it desires the Placement Shares to be sold, which shall at a minimum include the number
of Placement Shares to be issued, the time period during which sales are requested to be made, any limitation on the number of Placement
Shares that may be sold in any one Trading Day (as defined in Section 3) and any minimum price below which sales may not be made,
a form of which containing such minimum sales parameters necessary is attached hereto as Schedule 1. The Placement Notice
shall originate from any of the individuals from the Company set forth on Schedule 2 (with a copy to each of the other
individuals from the Company listed on such schedule), and shall be addressed to each of the individuals from Cowen set forth on Schedule
2, as such Schedule 2 may be amended in writing from time to time. The Placement Notice shall be effective upon
receipt by Cowen unless and until (i) in accordance with the notice requirements set forth in Section 4, Cowen declines to accept
the terms contained therein for any reason, in its sole discretion, (ii) the entire amount of the Placement Shares thereunder have been
sold, (iii) in accordance with the notice requirements set forth in Section 4, the Company suspends or terminates the Placement
Notice for any reason, in its sole discretion, (iv) the Company issues a subsequent Placement Notice with parameters superseding those
on the earlier dated Placement Notice, or (v) this Agreement has been terminated under the provisions of Section 11. The amount
of any discount, commission or other compensation to be paid by the Company to Cowen in connection with the sale of the Placement Shares
shall be calculated in accordance with the terms set forth in Schedule 3. It is expressly acknowledged and agreed that
neither the Company nor Cowen will have any obligation whatsoever with respect to a Placement or any Placement Shares unless and until
the Company delivers a Placement Notice to Cowen and Cowen does not decline such Placement Notice pursuant to the terms set forth above,
and then only upon the terms specified therein and herein. In the event of a conflict between the terms of this Agreement and the terms
of a Placement Notice, the terms of the Placement Notice will control.
3.
Sale of Placement Shares by Cowen. Subject to the terms and conditions herein set forth, upon the Company’s
delivery of a Placement Notice, and unless the sale of the Placement Shares described therein has been declined, suspended, or otherwise
terminated in accordance with the terms of this Agreement, Cowen, for the period specified in the Placement Notice, will use its commercially
reasonable efforts consistent with its normal trading and sales practices and applicable state and federal laws, rules and regulations
and the rules of the Nasdaq Global Select Market (“Nasdaq”) to sell such Placement Shares up to the amount
specified, and otherwise in accordance with the terms of such Placement Notice. Cowen will provide written confirmation to the Company
(including by email correspondence to each of the individuals of the Company set forth on Schedule 2, if receipt of such correspondence
is actually acknowledged by any of the individuals to whom the notice is sent, other than via auto-reply) no later than the opening of
the Trading Day (as defined below) immediately following the Trading Day on which it has made sales of Placement Shares hereunder setting
forth the number of Placement Shares sold on such day, the volume-weighted average price of the Placement Shares sold, and the Net Proceeds
(as defined below) payable to the Company. Cowen may sell Placement Shares by any method permitted by law deemed to be an “at the
market” offering as defined in Rule 415 of the Securities Act, including without limitation sales made through Nasdaq or on any
other existing trading market for the Common Stock. Cowen shall not purchase Placement Shares for its own account as principal unless
expressly authorized to do so by the Company in a Placement Notice. The Company acknowledges and agrees that (i) there can be no assurance
that Cowen will be successful in selling Placement Shares, and (ii) Cowen will incur no liability or obligation to the Company or any
other person or entity if it does not sell Placement Shares for any reason other than a failure by Cowen to use its commercially reasonable
efforts consistent with its normal trading and sales practices to sell such Placement Shares as required under this Section 3.
For the purposes hereof, “Trading Day” means any day on which the Company’s Common Stock is purchased
and sold on the principal market on which the Common Stock is listed or quoted. In the event the Company engages Cowen for a sale of
Placement Shares that would constitute a “block” within the meaning of Rule 10b-18(a)(5) under the Exchange Act (a “Block
Sale”), the Company will provide Cowen, at Cowen’s request and upon reasonable advance notice to the Company, on
or prior to the Settlement Date, the opinions of counsel, accountant’s letter and officers’ certificates set forth in Section
8 hereof, each dated the Settlement Date, and such other documents and information as Cowen shall reasonably request. Notwithstanding
any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale, of any Placement Shares
pursuant to this Agreement and, by notice to Cowen given by telephone (confirmed promptly by email), shall cancel any instructions for
the offer or sale of any Placement Shares, and Cowen shall not be obligated to offer or sell any Placement Shares, (i) during any period
in which the Company is, or could be deemed to be, in possession of material non-public information, or (ii) at any time from and including
the date on which the Company shall issue a press release containing, or shall otherwise publicly announce, its earnings, revenues or
other results of operations (an “Earnings Announcement”) through and including the time that the Company files
a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K that includes consolidated financial statements as of and for the same
period or periods, as the case may be, covered by such Earnings Announcement.
4.
Suspension of Sales.
(a)
The Company or Cowen may, upon notice to the other party in writing (including by email correspondence to each of the individuals of
the other party set forth on Schedule 2, if receipt of such correspondence is actually acknowledged by any of the individuals
to whom the notice is sent, other than via auto-reply) or by telephone (confirmed immediately by verifiable facsimile transmission or
email correspondence to each of the individuals of the other party set forth on Schedule 2), suspend any sale of Placement
Shares; provided, however, that such suspension shall not affect or impair either party’s obligations with respect to any
Placement Shares sold hereunder prior to the receipt of such notice. While a suspension is in effect, any obligation under Sections 7(m),
7(n) and 7(p) with respect to the delivery of certificates, opinions, or comfort letters to Cowen shall be waived; provided, however,
that such waiver shall not apply for the Representation Date (defined below) occurring on the date that the Company files its Annual
Report on Form 10-K. Each of the parties agrees that no such notice under this Section 4 shall be effective against the other
unless it is made to one of the individuals named on Schedule 2 hereto, as such schedule may be amended from time to time.
(b)
If either Cowen or the Company has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M
under the Exchange Act are not satisfied with respect to the Common Stock, it shall promptly notify the other party, and Cowen may, at
its sole discretion, suspend sales of the Placement Shares under this Agreement.
(c)
Notwithstanding any other provision of this Agreement, during any period in which the Registration Statement is not effective
under the Securities Act, the Company shall promptly notify Cowen, the Company shall not request the sale of any Placement Shares, and
Cowen shall not be obligated to sell or offer to sell any Placement Shares.
5.
Settlement.
(a)
Settlement of Placement Shares. Unless otherwise specified in the applicable Placement Notice, settlement for sales
of Placement Shares will occur on the second (2nd) Trading Day (or such earlier day as is industry practice for regular-way
trading) following the date on which such sales are made (each, a “Settlement Date” and the first such settlement
date, the “First Delivery Date”). The amount of proceeds to be delivered to the Company on a Settlement Date
against receipt of the Placement Shares sold (the “Net Proceeds”) will be equal to the aggregate sales price
received by Cowen at which such Placement Shares were sold, after deduction for (i) Cowen’s commission, discount or other
compensation for such sales payable by the Company pursuant to Section 2 hereof, (ii) any other amounts due and payable by the
Company to Cowen hereunder pursuant to Section 7(g) (Expenses) hereof, and (iii) any transaction fees imposed by any governmental
or self-regulatory organization in respect of such sales; provided that Cowen shall promptly notify the Company if the calculation of
any Net Proceeds reflects deductions pursuant to clauses (ii) or (iii).
(b)
Delivery of Placement Shares. On or before each Settlement Date, the Company will, or will cause its transfer agent
to, electronically transfer the Placement Shares being sold by crediting Cowen’s or its designee’s account (provided Cowen
shall have given the Company written notice of such designee at least one (1) Trading Day prior to the Settlement Date) at The Depository
Trust Company through its Deposit and Withdrawal at Custodian System or by such other means of delivery as may be mutually agreed upon
by the parties hereto which in all cases shall be freely tradeable, transferable, registered shares in book entry form. On each Settlement
Date, Cowen will deliver the related Net Proceeds in same day funds to an account designated by the Company on, or prior to, the Settlement
Date. The Company agrees that if the Company, or its transfer agent (if applicable), defaults in its obligation to deliver duly authorized
Placement Shares on a Settlement Date through no fault of Cowen, the Company agrees that in addition to and in no way limiting the rights
and obligations set forth in Section 9(a) (Indemnification and Contribution) hereto, it will (i) hold Cowen harmless against
any loss, claim, damage, or reasonable and 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 Cowen (without duplication) any commission, discount,
or other compensation to which it would otherwise have been entitled absent such default.
6. Representations
and Warranties of the Company. Except as disclosed in the Registration Statement or Prospectus, the Company represents and warrants
to, and agrees with, Cowen that as of the date of this Agreement, each Representation Date (as defined in Section 7(m)), each
date on which a Placement Notice is given, and any date on which Placement Shares are sold hereunder:
(a)
Compliance with Registration Requirements. The Registration Statement and any Rule 462(b) Registration Statement
shall have been declared effective by the Commission under the Securities Act. The Company shall have complied to the Commission’s
satisfaction with all requests of the Commission for additional or supplemental information with respect to the Registration Statement.
No stop order suspending the effectiveness of the Registration Statement or any Rule 462(b) Registration Statement is in effect
and no proceedings for such purpose have been instituted or are pending or, to the knowledge of the Company, contemplated or threatened
by the Commission. The Company meets the requirements for use of Form S-3 under the Securities Act. The sale of the Placement Shares
hereunder meets the requirements of General Instruction I.B.1 of Form S-3.
(b)
No Misstatement or Omission. The Prospectus when filed complied and, as amended or supplemented, if applicable,
will comply in all material respects with the Securities Act. Each of the Registration Statement, any Rule 462(b) Registration Statement,
the Prospectus and any post-effective amendments or supplements thereto, at the time it becomes effective or its date, as applicable,
will comply or complied and as of each Applicable Time, will comply or complied in all material respects with the Securities Act and
did not and, as of each Applicable Time, did not and will not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein not misleading. The Prospectus, as amended or supplemented,
as of its date, did not and, as of each Applicable Time, will not contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
The representations and warranties set forth in the two immediately preceding sentences do not apply to statements in or omissions from
the Registration Statement, any Rule 462(b) Registration Statement, or any post-effective amendment thereto, or the Prospectus,
or any amendments or supplements thereto, made in reliance upon and in conformity with information relating to Cowen furnished to the
Company in writing by Cowen expressly for use therein. There are no contracts or other documents required to be described in the Prospectus
or to be filed as exhibits to the Registration Statement which have not been described or filed as required.
(c)
Offering Materials Furnished to Cowen. The Company has delivered to Cowen one complete copy of the Registration
Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement
(without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as Cowen has reasonably requested.
(d)
[Reserved.]
(e)
Not an Ineligible Issuer. The Company currently is not an “ineligible issuer,” as defined in Rule 405
under the Securities Act. The Company agrees to notify Cowen promptly upon the Company becoming an “ineligible issuer.”
(f)
Distribution of Offering Material By the Company. The Company has not distributed and will not distribute, prior
to the completion of Cowen’s distribution of the Placement Shares, any offering material in connection with the offering and sale
of the Placement Shares other than the Prospectus or the Registration Statement.
(g)
The Sales Agreement. This Agreement has been duly authorized, executed and delivered by, and is a valid and binding
agreement of, the Company, enforceable in accordance with its terms, except as rights to indemnification hereunder may be limited by
applicable law and except as the enforcement hereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting the rights and remedies of creditors or by general equitable principles.
(h)
The Placement Shares. The Placement Shares to be issued and sold by the Company hereunder have been duly authorized
and, when issued and delivered and paid for as provided herein, will be duly and validly issued, will be fully paid and nonassessable
and will conform in all material respects to the descriptions thereof in the Registration Statement and the Prospectus; and the issuance
of the Placement Shares is not subject to any preemptive or similar rights that have not been duly waived or satisfied.
(i)
No Applicable Registration or Other Similar Rights. There are no persons with registration or other similar rights
to have any equity or debt securities registered for sale under the Registration Statement or included in the offering contemplated by
this Agreement, except for such rights as have been duly waived.
(j)
No Material Adverse Change. Since the date of the most recent financial statements of the Company incorporated by
reference into the Registration Statement and the Prospectus, (i) there has not been any material change in the capital stock (other
than the issuance of shares of Common Stock upon exercise of stock options and warrants described as outstanding in, and the grant of
options and awards under existing equity incentive plans described in, the Registration Statement and the Prospectus), short-term debt
or long-term debt of the Company and its subsidiary, taken as a whole, or any dividend or distribution of any kind declared, set aside
for payment, paid or made by the Company on any class of capital stock, or any material adverse change, or any development that would
reasonably be expected to result in a prospective material adverse change, in or affecting the business, properties, management, financial
position, stockholders’ equity, results of operations or prospects of the Company and its subsidiary taken as a whole (any such
change is called a “Material Adverse Change”); (ii) neither the Company nor its subsidiary has entered
into any transaction or agreement (whether or not in the ordinary course of business) that is material to the Company and its subsidiary
taken as a whole or incurred any liability or obligation, direct or contingent, that is material to the Company and its subsidiary taken
as a whole; and (iii) neither the Company nor its subsidiary has sustained any loss or interference with its business that is material
to the Company and its subsidiary taken as a whole and that is either from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor disturbance or dispute or any action, order or decree of any court or arbitrator or governmental or regulatory
authority, except in each case as otherwise disclosed in the Registration Statement and the Prospectus.
(k)
Independent Accountants. Ernst & Young LLP, who have certified certain financial statements of the Company
and its subsidiary, is an independent registered public accounting firm with respect to the Company and its subsidiary within the applicable
rules and regulations adopted by the Commission and the Public Company Accounting Oversight Board (United States) and as required
by the Securities Act.
(l) Financial
Statements. The financial statements (including the related notes thereto) of the Company and its consolidated subsidiary incorporated
by reference into the Registration Statement and the Prospectus comply in all material respects with the applicable requirements of the
Securities Act and present fairly in all material respects the financial position of the Company and its consolidated subsidiary as of
the dates indicated and the results of their operations and the changes in their cash flows for the periods specified; such financial
statements have been prepared in conformity with generally accepted accounting principles (“GAAP”) in the United
States applied on a consistent basis throughout the periods covered thereby, except in the case of any unaudited, interim financial statements,
which are subject to normal year-end adjustments and do not contain certain footnotes as permitted by the applicable rules of the
Commission, and any supporting schedules incorporated by reference into the Registration Statement present fairly in all material respects
the information required to be stated therein; and the other financial information incorporated by reference into the Registration Statement
and the Prospectus has been derived from the accounting records of the Company and its consolidated subsidiary and presents fairly in
all material respects the information shown thereby.
(m)
Organization and Good Standing. The Company and its subsidiary have been duly organized and are validly existing
and in good standing under the laws of their respective jurisdictions of organization, are duly qualified to do business and are in good
standing in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses
requires such qualification, and have all power and authority necessary to own or hold their respective properties and to conduct the
businesses in which they are engaged, except where the failure to be so qualified or in good standing or have such power or authority
would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the business, properties, management,
financial position, stockholders’ equity, results of operations or prospects of the Company and its subsidiary taken as a whole
or on the performance by the Company of its obligations under this Agreement (a “Material Adverse Effect”).
The Company does not own or control, directly or indirectly, any corporation, association or other entity other than the subsidiary listed
on Schedule 4.
(n)
Capitalization. The Company has an authorized capitalization as set forth in the Registration Statement under the
heading “Description of Common Stock”; all the outstanding shares of capital stock of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable and are not subject to any pre-emptive or similar rights that have not been
duly waived or satisfied; except as described in or expressly contemplated by the Prospectus, there are no outstanding rights (including,
without limitation, pre-emptive rights), warrants or options to acquire, or instruments convertible into or exchangeable for, any shares
of capital stock or other equity interest in the Company or its subsidiary, or any contract, commitment, agreement, understanding or
arrangement of any kind relating to the issuance of any capital stock of the Company or any such subsidiary, any such convertible or
exchangeable securities or any such rights, warrants or options; the capital stock of the Company conforms in all material respects to
the description thereof contained in the Registration Statement and the Prospectus; and all the outstanding shares of capital stock or
other equity interests of the subsidiary owned, directly or indirectly, by the Company have been duly and validly authorized and issued,
are fully paid and non-assessable and are owned directly or indirectly by the Company, free and clear of any lien, charge, encumbrance,
security interest, restriction on voting or transfer or any other claim of any third party.
(o)
Stock Options. With respect to the stock options (each, a "Stock Option") granted pursuant to the
stock-based compensation plans of the Company and its subsidiary (the “Company Stock Plans”), except, in each
case, for any such matters as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect,
(i) each grant of a Stock Option was duly authorized no later than the date on which the grant of such Stock Option was by its terms
to be effective by all necessary corporate action, including, as applicable, approval by the board of directors of the Company (or an
authorized committee thereof), and the award agreement governing such grant (if any) was duly executed and delivered by each party thereto,
(ii) each such grant was made in accordance with the terms of the Company Stock Plans and all other applicable laws and regulatory
rules or requirements, and (iii) each such grant was properly accounted for in accordance with GAAP in the financial statements
(including the related notes) of the Company.
(p)
Due Authorization. The Company has full right, power and authority to execute and deliver this Agreement and to
perform its obligations hereunder; and all action required to be taken for the due and proper authorization, execution and delivery by
it of this Agreement and the consummation by it of the transactions contemplated hereby has been duly and validly taken.
(q)
No Violation or Default. Neither the Company nor its subsidiary is (i) in violation of its charter or by-laws
or similar organizational documents; (ii) in default, and no event has occurred that, with notice or lapse of time or both, would
constitute such a default, in the due performance or observance of any term, covenant or condition contained in any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which the Company or its subsidiary is a party or by which the Company
or its subsidiary is bound or to which any property or asset of the Company or its subsidiary is subject; or (iii) in violation
of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority
having jurisdiction over the Company, except, in the case of clauses (ii) and (iii) above, for any such default or violation
that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(r)
No Conflicts. The execution, delivery and performance by the Company of this Agreement, the issuance and sale of
the Placement Shares by the Company and the consummation of the transactions contemplated by this Agreement will not (i) conflict
with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property, right or asset of the Company or its subsidiary pursuant to, any
indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or its subsidiary is a party
or by which the Company or its subsidiary is bound or to which any property, right or asset of the Company or its subsidiary is subject,
(ii) result in any violation of the provisions of the charter or by-laws or similar organizational documents of the Company or its
subsidiary or (iii) result in the violation of any law or statute or any judgment, order, rule or regulation of any court
or arbitrator or governmental or regulatory authority having jurisdiction over the Company, except, in the case of clauses (i) and
(iii) above, for any such conflict, breach, violation, default, lien, charge or encumbrance that would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
(s)
No Consents Required. No consent, approval, authorization, order, registration or qualification of or with any court
or arbitrator or governmental or regulatory authority is required for the execution, delivery and performance by the Company of this
Agreement, the issuance and sale of the Placement Shares by the Company and the consummation of the transactions contemplated by this
Agreement, except for the registration of the Placement Shares under the Securities Act and such consents, approvals, authorizations,
orders and registrations or qualifications as may be required by the Financial Industry Regulatory Authority, Inc. (“FINRA”)
and under applicable state securities laws in connection with the purchase and distribution of the Placement Shares by Cowen.
(t)
Legal Proceedings. Except as described in the Registration Statement and the Prospectus, there are no legal, governmental
or regulatory investigations, actions, demands, claims, suits, arbitrations, inquiries or proceedings (“Actions”)
pending to which the Company or its subsidiary is a party or to which any property of the Company or its subsidiary is the subject that,
individually or in the aggregate, if determined adversely to the Company or its subsidiary, would reasonably be expected to have a Material
Adverse Effect; to the knowledge of the Company, no such Actions are threatened or contemplated by any governmental or regulatory authority
or threatened by others; and (i) there are no current or pending Actions that are required under the Securities Act to be described
in the Registration Statement or the Prospectus that are not so described in the Registration Statement and the Prospectus and (ii) there
are no statutes, regulations or contracts or other documents that are required under the Securities Act to be filed as exhibits to the
Registration Statement or described in the Registration Statement or the Prospectus that are not so filed as exhibits to the Registration
Statement or described in the Registration Statement and the Prospectus.
(u)
Title to Real and Personal Property. The Company and its subsidiary have good and marketable title in fee simple
(in the case of real property) to, or have valid rights to lease or otherwise use, all items of real and personal property that are material
to the businesses of the Company and its subsidiary, taken as a whole, in each case free and clear of all liens, encumbrances, claims
and defects and imperfections of title except those that (i) do not materially interfere with the use made and proposed to be made
of such property by the Company and its subsidiary or (ii) would not reasonably be expected, individually or in the aggregate, to
have a Material Adverse Effect.
(v)
Intellectual Property. (i) The Company and its subsidiary possess valid and adequate rights to use all patents,
inventions, trademarks, service marks, trade names, domain names and other source indicators, copyrights and copyrightable works, know-how
(including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures) and
all other similar worldwide intellectual property and proprietary rights (including all registrations, applications for registration
and goodwill associated with the foregoing), including all licenses to any of the foregoing (collectively, “Intellectual
Property”), in each case, used in, held for use in or otherwise necessary for the conduct of their respective businesses
as currently conducted and as proposed to be conducted; (ii) the Company’s and its subsidiary’s conduct of their respective
businesses has not infringed, misappropriated or otherwise violated any Intellectual Property of any person, except as would not reasonably
be expected to have a Material Adverse Effect; (iii) neither the Company nor its subsidiary has received any notice of any claim
relating to Intellectual Property, including any claim of infringement, misappropriation or other violation of any Intellectual Property
of any person, or any notice challenging the validity, enforceability or scope of any Intellectual Property of the Company or its subsidiary;
and (iv) to the knowledge of the Company, all Intellectual Property of the Company and its subsidiary is valid, enforceable and
has not been infringed, misappropriated or otherwise violated by any person.
(w)
No Undisclosed Relationships. No relationship, direct or indirect, exists between or among the Company or its subsidiary,
on the one hand, and the directors, officers, stockholders, customers or suppliers of the Company or its subsidiary, on the other, that
is required by the Securities Act to be described in each of the Registration Statement and the Prospectus and that is not so described
in such documents.
(x)
Investment Company Act. The Company is not and, after giving effect to the offering and sale of the Placement Shares
and the application of the proceeds thereof as described in the Registration Statement and the Prospectus, will not be an “investment
company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company
Act of 1940, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Investment Company
Act”).
(y)
Taxes. The Company and its subsidiary have paid all federal, state, local and non-U.S. taxes and filed all tax returns
required to be paid or filed through the date hereof, except for taxes being contested in good faith by appropriate proceedings and for
which adequate reserves in accordance with GAAP have been taken and as would not reasonably be expected, individually or in the aggregate,
to have a Material Adverse Effect; and except as otherwise disclosed in each of the Registration Statement and the Prospectus, there
is no tax deficiency that has been, or would reasonably be expected to be, asserted against the Company or its subsidiary or any of their
respective properties or assets that would reasonably be expected to have a Material Adverse Effect.
(z)
Licenses and Permits. The Company and its subsidiary possess all licenses, sub-licenses, certificates, permits and
other authorizations issued by, and have made all declarations and filings with, the appropriate federal, state, local or foreign governmental
or regulatory authorities that are necessary for the ownership or lease of their respective properties or the conduct of their respective
businesses as described in each of the Registration Statement and the Prospectus, except where the failure to possess or make the same
would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and except as described in each
of the Registration Statement and the Prospectus, neither the Company nor its subsidiary has received notice of any revocation or modification
of any such license, sub-license, certificate, permit or authorization or has any reason to believe that any such license, sub-license,
certificate, permit or authorization will not be renewed in the ordinary course.
(aa)
No Labor Disputes. No labor disturbance by or dispute with employees of the Company or its subsidiary exists or,
to the knowledge of the Company, is contemplated or threatened, and the Company is not aware of any existing or imminent labor disturbance
by, or dispute with, the employees of any of its or its subsidiary’s principal suppliers, contractors or customers, except as would
not reasonably be expected to have a Material Adverse Effect. Neither the Company nor its subsidiary has received any notice of
cancellation or termination with respect to any collective bargaining agreement to which it is a party.
(bb)
Certain Environmental Matters. (i) The Company and its subsidiary (x) are in compliance with all applicable
federal, state, local and foreign laws (including common law), rules, regulations, requirements, decisions, judgments, decrees, orders
and other legally enforceable requirements relating to pollution or the protection of human health or safety, the environment, natural
resources, hazardous or toxic substances or wastes, pollutants or contaminants (collectively, “Environmental Laws”);
(y) have received and are in compliance with all permits, licenses, certificates or other authorizations or approvals required of
them under any Environmental Laws to conduct their respective businesses; and (z) have not received notice of any actual or potential
liability or obligation under or relating to, or any actual or potential violation of, any Environmental Laws, including for the investigation
or remediation of any disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants, and have no knowledge
of any event or condition that would reasonably be expected to result in any such notice, and (ii) there are no costs or liabilities
associated with Environmental Laws of or relating to the Company or its subsidiary, except in the case of each of (i) and (ii) above,
for any such matter as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and (iii) except
as described in the Prospectus, (x) there is no proceeding that is pending, or, to the Company’s knowledge, contemplated,
against the Company or its subsidiary under any Environmental Laws in which a governmental entity is also a party, other than such proceeding
regarding which it is reasonably believed no monetary sanctions of $100,000 or more will be imposed, (y) the Company and its subsidiary
are not aware of any facts or issues regarding compliance with Environmental Laws, or liabilities or other obligations under Environmental
Laws or concerning hazardous or toxic substances or wastes, pollutants or contaminants, that would reasonably be expected to have a material
effect on the capital expenditures, earnings or competitive position of the Company and its subsidiary, and (z) neither the Company
nor its subsidiary anticipates material capital expenditures relating to any Environmental Laws.
(cc)
Hazardous Materials. There has been no storage, generation, transportation, use, handling, treatment, Release (as
defined below) or threat of Release of Hazardous Materials (as defined below) by, relating to or caused by the Company or to its subsidiary
(or, to the knowledge of the Company and its subsidiary, any other entity (including any predecessor) for whose acts or omissions the
Company or its subsidiary is or would reasonably be expected to be liable) at, on, under or from any property or facility now or, to
the knowledge of the Company, previously owned, operated or leased by the Company or its subsidiary, or at, on, under or from any other
property or facility, in violation of any Environmental Laws or in a manner or amount or to a location that would reasonably be expected
to result in any liability under any Environmental Law, except for any violation or liability which would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. “Hazardous Materials” means any
material, chemical, substance, waste, pollutant, contaminant, compound, mixture, or constituent thereof, in any form or amount, including
petroleum (including crude oil or any fraction thereof) and petroleum products, natural gas liquids, asbestos and asbestos containing
materials, naturally occurring radioactive materials, brine, and drilling mud, regulated or which can give rise to liability under any
Environmental Law. “Release” means any spilling, leaking, seepage, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, disposing, depositing, dispersing, or migrating in, into or through the environment,
or in, into, from or through any building or structure.
(dd)
Compliance with ERISA. (i) Each employee benefit plan, within the meaning of Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended (“ERISA”), for which the Company or any member
of its “Controlled Group” (defined as any entity, whether or not incorporated, that is under common control
with the Company within the meaning of Section 4001(a)(14) of ERISA or any entity that would be regarded as a single employer with
the Company under Section 414(b), (c), (m) or (o) of the Internal Revenue Code of 1986, as amended (the “Code”))
has any liability (each, a “Plan”) has been maintained in compliance with its terms and the requirements of
any applicable statutes, orders, rules and regulations, including but not limited to ERISA and the Code; (ii) no prohibited
transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any Plan,
excluding transactions effected pursuant to a statutory or administrative exemption; (iii) for each Plan that is subject to the
funding rules of Section 412 of the Code or Section 302 of ERISA, no Plan has failed (whether or not waived), or is reasonably
expected to fail, to satisfy the minimum funding standards (within the meaning of Section 302 of ERISA or Section 412 of the
Code) applicable to such Plan; (iv) no Plan is, or is reasonably expected to be, in “at risk status” (within the meaning
of Section 303(i) of ERISA) and no Plan that is a “multiemployer plan” within the meaning of Section 4001(a)(3) of
ERISA is in “endangered status” or “critical status” (within the meaning of Sections 304 and 305 of ERISA) (v) the
fair market value of the assets of each Plan that is subject to the funding rules of Section 412 of the Code of Section 302
of ERISA exceeds the present value of all benefits accrued under such Plan (determined based on those assumptions used to fund such Plan);
(vi) no “reportable event” (within the meaning of Section 4043(c) of ERISA and the regulations promulgated
thereunder) has occurred or is reasonably expected to occur; (vii) each Plan that is intended to be qualified under Section 401(a) of
the Code is covered by a favorable determination letter from the Internal Revenue Service or is entitled to rely on an opinion letter
issued by the Internal Revenue Service, and nothing has occurred, whether by action or by failure to act, which would reasonably be expected
to cause the loss of such qualification; (viii) neither the Company nor any member of the Controlled Group has incurred, nor reasonably
expects to incur, any liability under Title IV of ERISA (other than contributions to the Plan or premiums to the Pension Benefit Guarantee
Corporation, in the ordinary course and without default) in respect of a Plan (including a “multiemployer plan” within the
meaning of Section 4001(a)(3) of ERISA); and (ix) none of the following events has occurred or is reasonably likely to
occur: (A) a material increase in the aggregate amount of contributions required to be made to all Plans by the Company or its subsidiary
in the current fiscal year of the Company compared to the amount of such contributions made in the Company’s most recently completed
fiscal year; or (B) a material increase in the Company and its subsidiary’s “accumulated post-retirement benefit obligations”
(within the meaning of Accounting Standards Codification Topic 715-60) compared to the amount of such obligations in the Company and
its subsidiary’s most recently completed fiscal year, except in each case with respect to the events or conditions set forth in
(i) through (ix) hereof, as would not, individually or in the aggregate, have a Material Adverse Effect.
(ee)
Disclosure Controls. The Company and its subsidiary maintain an effective system of “disclosure controls and
procedures” (as defined in Rule 13a-15(e) of the Exchange Act) that complies with the requirements of the Exchange Act
and that has been designed to ensure that information required to be disclosed by the Company in reports that it files or submits under
the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission’s rules and
forms, including controls and procedures designed to ensure that such information is accumulated and communicated to the Company’s
management as appropriate to allow timely decisions regarding required disclosure.
(ff)
Accounting Controls. The Company and its subsidiary maintain systems of “internal control over financial reporting”
(as defined in Rule 13a-15(f) of the Exchange Act) that have been designed to comply with the requirements of the Exchange
Act and have been designed by, or under the supervision of, their respective principal executive and principal financial officers, or
persons performing similar functions, to provide reasonable assurance regarding the reliability of financial reporting and the preparation
of financial statements for external purposes in accordance with GAAP. The Company and its subsidiary maintain internal accounting
controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general
or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity
with GAAP and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general
or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals
and appropriate action is taken with respect to any differences. Except as disclosed in the Registration Statement and the Prospectus,
there are no material weaknesses in the Company’s internal controls. The Company’s auditors and the Audit Committee
of the Board of Directors of the Company have been advised of: (i) all significant deficiencies and material weaknesses in
the design or operation of internal controls over financial reporting which have adversely affected or are reasonably likely to adversely
affect the Company’s ability to record, process, summarize and report financial information; and (ii) to the knowledge of
the Company, any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s
internal controls over financial reporting.
(gg)
Insurance. The Company and its subsidiary have insurance covering their respective properties, operations, personnel
and businesses, including business interruption insurance, which insurance is in amounts and insures against such losses and risks which
the Company reasonably believes are adequate to protect the Company and its subsidiary and their respective businesses, taken as a whole;
and neither the Company nor its subsidiary has (i) received notice from any insurer or agent of such insurer that capital improvements
or other expenditures are required or necessary to be made in order to continue such insurance or (ii) 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 at reasonable
cost from similar insurers as may be necessary to continue its business.
(hh)
No Unlawful Payments. Neither the Company nor its subsidiary nor any director or officer of the Company or its subsidiary
nor, to the knowledge of the Company, any agent, employee, affiliate or other person associated with or acting on behalf of the Company
or its subsidiary has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense
relating to political activity; (ii) made or taken an act in furtherance of an offer, promise or authorization of any direct or
indirect unlawful payment or benefit to any foreign or domestic government official or employee, including of any government-owned or
controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of
the foregoing, or any political party or party official or candidate for political office; (iii) violated or is in violation of
any provision of the Foreign Corrupt Practices Act of 1977, as amended, or any applicable law or regulation implementing the OECD Convention
on Combating Bribery of Foreign Public Officials in International Business Transactions, or committed an offence under the Bribery Act
2010 of the United Kingdom or any other applicable anti-bribery or anti-corruption law; or (iv) made, offered, agreed, requested
or taken an act in furtherance of any unlawful bribe or other unlawful benefit, including, without limitation, any rebate, payoff, influence
payment, kickback or other unlawful or improper payment or benefit. The Company and its subsidiary have instituted, maintain and
enforce, and will continue to maintain and enforce policies and procedures designed to promote and ensure compliance with all applicable
anti-bribery and anti-corruption laws.
(ii)
Compliance with Anti-Money Laundering Laws. The operations of the Company and its subsidiary are and have been conducted
at all times in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions
Reporting Act of 1970, as amended, the applicable money laundering statutes of all jurisdictions where the Company or its subsidiary
conducts business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines issued, administered
or enforced by any governmental agency where the Company conducts business (collectively, the “Anti-Money Laundering Laws”)
and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company
or its subsidiary with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(jj)
No Conflicts with Sanctions Laws. Neither the Company nor its subsidiary, directors or officers, nor, to the knowledge
of the Company, any agent, employee, affiliate or other person associated with or acting on behalf of the Company or its subsidiary is
currently the subject or the target of any sanctions administered or enforced by the U.S. government (including, without limitation,
the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State and including, without limitation,
the designation as a “specially designated national” or “blocked person”), the United Nations Security Council,
the European Union, His Majesty’s Treasury or other relevant sanctions authority (collectively, “Sanctions”),
nor is the Company or its subsidiary located, organized or resident in a country or territory that is the subject or target of Sanctions,
including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the Crimea
Region of Ukraine, the non-government controlled areas of the Zaporizhzhia and Kherson Regions, Cuba, Iran, North Korea and Syria (each,
a “Sanctioned Country”); and the Company will not directly or indirectly use the proceeds of the offering of
the Placement Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner
or other person or entity (i) to fund or facilitate any activities of or business with any person that, at the time of such funding
or facilitation, is the subject or target of Sanctions, (ii) to fund or facilitate any activities of or business in any Sanctioned
Country or (iii) in any other manner that will result in a violation by any person (including any person participating in the transaction,
whether as underwriter, advisor, investor or otherwise) of Sanctions. For the past five years, the Company and its subsidiary have
not knowingly engaged in and are not now knowingly engaged in any dealings or transactions with any person that at the time of the dealing
or transaction is or was the subject or the target of Sanctions or with any Sanctioned Country.
(kk)
No Reliance. The Company has not relied upon Cowen or legal counsel for Cowen for any legal, tax or accounting advice
in connection with the offering and sale of the Placement Shares.
(ll)
No Restrictions on Subsidiary. The Company’s subsidiary is not currently prohibited, directly or indirectly,
under any agreement or other instrument to which it is a party or is subject, from paying any dividends to the Company, from making any
other distribution on such subsidiary’s capital stock or similar ownership interest, from repaying to the Company any loans or
advances to such subsidiary from the Company or from transferring any of such subsidiary’s properties or assets to the Company
or any other subsidiary of the Company.
(mm)
No Broker’s Fees. Neither the Company nor its subsidiary is a party to any contract, agreement or understanding
with any person (other than this Agreement) that would give rise to a valid claim against either of them or Cowen for a brokerage commission,
finder’s fee or like payment in connection with the offering and sale of the Placement Shares.
(nn)
No Stabilization. The Company has not taken, directly or indirectly, any action designed to or that would reasonably
be expected to cause or result in any stabilization or manipulation of the price of the Placement Shares.
(oo)
Margin Rules. Neither the issuance, sale and delivery of the Placement Shares nor the application of the proceeds
thereof by the Company as described in each of the Registration Statement and the Prospectus will violate Regulation T, U or X of the
Board of Governors of the Federal Reserve System or any other regulation of such Board of Governors.
(pp)
Forward-Looking Statements. No forward-looking statement (within the meaning of Section 27A of the Securities
Act and Section 21E of the Exchange Act) included in any of the Registration Statement or the Prospectus has been made or reaffirmed
without a reasonable basis or has been disclosed other than in good faith.
(qq)
Statistical and Market Data. Nothing has come to the attention of the Company that has caused the Company to believe
that the statistical and market-related data included in each of the Registration Statement and the Prospectus is not based on or derived
from sources that are reliable and accurate in all material respects.
(rr)
Sarbanes-Oxley Act. There is and has been no failure on the part of the Company or, to the knowledge of the Company,
any of the Company’s directors or officers, in their capacities as such, to comply with any provision of the Sarbanes-Oxley Act
of 2002, as amended and the rules and regulations promulgated in connection therewith (the “Sarbanes-Oxley Act”),
including Section 402 related to loans.
(ss)
No Ratings. There are (and prior to the Representation Date, will be) no debt securities or preferred stock issued
or guaranteed by the Company or its subsidiary that are rated by a “nationally recognized statistical rating organization,”
as such term is defined under Section 3(a)(62) under the Exchange Act.
(tt)
Pre-Clinical Studies and Clinical Trials. (i) Except as described in the Registration Statement and the Prospectus,
the pre-clinical studies and clinical trials conducted by or, to the knowledge of the Company, on behalf of or sponsored by the Company
or its subsidiary or in which the Company or its subsidiary have participated, that are described in the Registration Statement and the
Prospectus, or the results of which are referred to in the Registration Statement and the Prospectus, as applicable, were, and if still
pending are, being conducted in all material respects in accordance with all applicable statutes and all applicable rules and regulations
of the U.S. Food and Drug Administration and comparable regulatory agencies outside of the United States to which they are subject (collectively,
the “Regulatory Authorities”) and Good Clinical Practices and Good Laboratory Practices, as applicable; (ii) the
descriptions in the Registration Statement and the Prospectus of the results of such studies and trials are accurate and complete descriptions
in all material respects and fairly present the data derived therefrom; (iii) the Company has no knowledge of any other studies
or trials not described in the Registration Statement and the Prospectus, the results of which are inconsistent with or call into question
the results described or referred to in the Registration Statement and the Prospectus; (iv) the Company and its subsidiary
have operated at all times and are currently in compliance in all material respects with all applicable statutes, rules and regulations
of the Regulatory Authorities; and (v) neither the Company nor its subsidiary have received any written communications from the
Regulatory Authorities or any other governmental agency requiring or threatening the termination, material modification or suspension
of any pre-clinical studies or clinical trials that are described in the Registration Statement and the Prospectus or the results of
which are referred to in the Registration Statement and the Prospectus, other than ordinary course written communications with respect
to modifications in connection with the design and implementation of such studies or trials, and, to the Company’s knowledge, there
are no reasonable grounds for the same.
(uu)
Regulatory Filings. The Company has not failed to file with the Regulatory Authorities any required filing, declaration,
listing, registration, report or submission with respect to the Company’s product candidates that are described or referred to
in the Registration Statement and the Prospectus; all such filings, declarations, listings, registrations, reports or submissions were
in material compliance with applicable laws when filed; and no deficiencies regarding compliance with applicable law have been asserted
by any applicable regulatory authority with respect to any such filings, declarations, listings, registrations, reports or submissions.
(vv)
Privacy Laws. To the knowledge of the Company, the Company and its subsidiary are in material compliance with all
applicable state and federal data privacy and security laws and regulations, including, without limitation, the Health Insurance Portability
and Accountability Act (“HIPAA”), as amended by the Health Information Technology for Economic and Clinical
Health Act (the “HITECH Act”) (42 U.S.C. Section 17921 et seq.), to the extent each is applicable to the Company’s
business (collectively, the “Privacy Laws”). To the extent required by applicable Privacy Laws, except as would
not otherwise be expected to have a Material Adverse Effect, the Company and its subsidiary have in place policies and procedures relating
to data privacy and security and the collection, storage, use, disclosure, handling and analysis of Personal Data (the “Policies”)
and take appropriate steps reasonably designed to ensure compliance in all material respects with such Policies. “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) Protected Health Information as defined by HIPAA; and (iv) any other piece
of information that identifies such natural person, or his or her family, or identifies a specific person’s health condition or
sexual orientation. To the Company’s knowledge, no disclosures made or contained in any of the Policies have been inaccurate, misleading,
deceptive or in violation of any Privacy Laws or Policies in any material respect. Neither the Company nor its subsidiary, (i) has received
notice of any actual or alleged liability under or relating to, or actual or alleged violation of, any of the Privacy Laws, and has no
knowledge of any event or condition that would reasonably be expected to result in any such notice; (ii) is currently conducting or paying
for, in whole or in part, any material investigation, remediation or other corrective action pursuant to any Privacy Law; or (iii) is
a party to any order, decree, or agreement that imposed any obligation or liability under any Privacy Law.
(ww)
IT Systems. Except as disclosed in the Registration Statement and the Prospectus, (i)(x) to the knowledge of the
Company, there has been no security breach or other compromise of or relating to any of the Company’s or its subsidiary’s
information technology and computer systems, networks, hardware, software, data (including the data of their respective customers, employees,
suppliers, vendors and any third party data maintained by or on behalf of them), equipment or technology (collectively, “IT
Systems and Data”) requiring notice to any third party under applicable state or federal law and (y) the Company and its
subsidiary have not been notified of, and have no knowledge of any event or condition that would reasonably be expected to result in,
any security breach or other compromise to their IT Systems and Data requiring notice to any third party under applicable state or federal
law; (ii) the Company and its subsidiary 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, in the case of this clause (ii), individually or in the aggregate, have
a Material Adverse Effect; and (iii) the Company and its subsidiary have used commercially reasonable efforts to implement backup and
disaster recovery technology consistent with industry standards and practices.
Any certificate signed by an officer of the Company
and delivered to Cowen or to counsel for Cowen pursuant to or in connection with this Agreement shall be deemed to be a representation
and warranty by the Company to Cowen as to the matters set forth therein.
The Company acknowledges that Cowen and, for
purposes of the opinions to be delivered pursuant to Section 7 hereof, counsel to the Company and counsel to Cowen, will rely
upon the accuracy and truthfulness of the foregoing representations and hereby consents to such reliance.
7.
Covenants of the Company. The Company covenants and agrees with Cowen that:
(a)
Registration Statement Amendments. After the date of this Agreement and during any period in which a Prospectus
relating to any Placement Shares is required to be delivered by Cowen under the Securities Act (including in circumstances where such
requirement may be satisfied pursuant to Rule 172 under the Securities Act), (i) the Company will notify Cowen promptly of
the time when any subsequent amendment to the Registration Statement, other than documents incorporated by reference, has been filed
with the Commission and/or has become effective or any subsequent supplement to the Prospectus has been filed and of any request by the
Commission for any amendment or supplement to the Registration Statement or Prospectus or for additional information (insofar as it relates
to the transactions contemplated hereby), (ii) the Company will prepare and file with the Commission, promptly upon Cowen’s reasonable
request, any amendments or supplements to the Registration Statement or Prospectus that, in Cowen’s reasonable opinion, may be
necessary or advisable in connection with the distribution of the Placement Shares by Cowen (provided, however, that the failure
of Cowen to make such request shall not relieve the Company of any obligation or liability hereunder, or affect Cowen’s right to
rely on the representations and warranties made by the Company in this Agreement and provided, further, that the only remedy Cowen
shall have with respect to the failure by the Company to obtain such consent shall be to cease making sales under this Agreement until
such amendment or supplement is filed); (iii) the Company will not file any amendment or supplement to the Registration Statement or
Prospectus, other than documents incorporated by reference, relating to the Placement Shares or a security convertible into the Placement
Shares unless a copy thereof has been submitted to Cowen within a reasonable period of time before the filing and Cowen has not reasonably
objected thereto (provided, however, that the failure of Cowen to make such objection shall not relieve the Company of any obligation
or liability hereunder, or affect Cowen’s right to rely on the representations and warranties made by the Company in this Agreement
and provided, further, that the only remedy Cowen shall have with respect to the failure by the Company to obtain such consent
shall be to cease making sales under this Agreement) and the Company will furnish to Cowen at the time of filing thereof a copy of any
document that upon filing is deemed to be incorporated by reference into the Registration Statement or Prospectus, except for those documents
available via EDGAR; (iv) the Company will cause each amendment or supplement to the Prospectus, other than documents incorporated by
reference, to be filed with the Commission as required pursuant to the applicable paragraph of Rule 424(b) of the Securities Act; and
(v) prior to the termination of this Agreement, the Company will notify Cowen if at any time the Registration Statement shall no longer
be effective as a result of the passage of time pursuant to Rule 415 under the Securities Act or otherwise. The Company shall file a
final Prospectus Supplement pursuant to Rule 424(b) relating to the Placement Shares within two (2) Trading Days of the initial sale
of any Placement Shares.
(b)
Notice of Commission Stop Orders. The Company will advise Cowen, promptly after it receives notice or obtains knowledge
thereof, of the issuance or threatened issuance by the Commission of any stop order suspending the effectiveness of the Registration
Statement, of the suspension of the qualification of the Placement Shares for offering or sale in any jurisdiction, or of the initiation
or threatening of any proceeding for any such purpose; and it will promptly use its commercially reasonable efforts to prevent the issuance
of any stop order or to obtain its withdrawal if such a stop order should be issued.
(c)
Delivery of Prospectus; Subsequent Changes. During any period in which a Prospectus relating to the Placement Shares
is required to be delivered by Cowen under the Securities Act with respect to a pending sale of the Placement Shares (including in circumstances
where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Company will use its commercially reasonable
efforts to comply with all requirements imposed upon it by the Securities Act, as from time to time in force, and to file on or before
their respective due dates (taking into account any extensions available under the Exchange Act) all reports and any definitive proxy
or information statements required to be filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14, 15(d) or any
other provision of or under the Exchange Act. If during such period any event occurs as a result of which the Prospectus as then amended
or supplemented would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances then existing, not misleading, or if during such period it is necessary to amend or supplement
the Registration Statement or Prospectus to comply with the Securities Act, the Company will promptly notify Cowen to suspend the offering
of Placement Shares during such period and the Company will promptly amend or supplement the Registration Statement or Prospectus (at
the expense of the Company) so as to correct such statement or omission or effect such compliance; provided, however, that the Company
may delay the filing of any amendment or supplement if, in the judgment of the Company, it is in its best interests to do so.
(d)
Listing of Placement Shares. During any period in which the Prospectus relating to the Placement Shares is required
to be delivered by Cowen under the Securities Act with respect to a pending sale of the Placement Shares (including in circumstances
where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Company will use its commercially reasonable
efforts to cause the Placement Shares to be listed on Nasdaq and to qualify the Placement Shares for sale under the securities laws of
such jurisdictions in the United States as Cowen reasonably designates and to continue such qualifications in effect so long as required
for the distribution of the Placement Shares; provided, however, that the Company shall not be required in connection therewith
to qualify as a foreign corporation or dealer in securities or file a general consent to service of process in any jurisdiction.
(e)
Delivery of Registration Statement and Prospectus. The Company will furnish to Cowen and its counsel (at the expense
of the Company) copies of the Registration Statement, the Prospectus (including all documents incorporated by reference therein) and
all amendments and supplements to the Registration Statement or Prospectus that are filed with the Commission during any period in which
a Prospectus relating to the Placement Shares is required to be delivered under the Securities Act (including all documents filed with
the Commission during such period that are deemed to be incorporated by reference therein), in each case as soon as reasonably practicable
and in such quantities as Cowen may from time to time reasonably request and, at Cowen’s request, will also furnish copies of the
Prospectus to each exchange or market on which sales of the Placement Shares may be made; provided, however, that the Company
shall not be required to furnish any document (other than the Prospectus) to Cowen to the extent such document is available on EDGAR.
(f)
Earnings Statement. The Company will make generally available to its security holders as soon as practicable, but
in any event not later than 15 months after the end of the Company’s current fiscal quarter, an earnings statement covering a 12-month
period that satisfies the provisions of Section 11(a) and Rule 158 of the Securities Act; provided, however, that the Company
will be deemed to have furnished such statement to its security holders to the extent they are filed on EDGAR or any successor system.
(g)
Expenses. The Company, whether or not the transactions contemplated hereunder are consummated or this Agreement
is terminated, in accordance with the provisions of Section 11 hereunder, will pay the following expenses all incident to the performance
of its obligations hereunder, including, but not limited to, expenses relating to (i) the preparation, printing and filing of the Registration
Statement and each amendment and supplement thereto, of each Prospectus and of each amendment and supplement thereto, (ii) the preparation,
issuance and delivery of the Placement Shares, (iii) the qualification of the Placement Shares under securities laws in accordance with
the provisions of Section 7(d) of this Agreement, including filing fees (provided, however, that any fees or disbursements of
counsel for Cowen in connection therewith shall be paid by Cowen except as set forth in (vii) below), (iv) the printing and delivery
to Cowen of copies of the Prospectus and any amendments or supplements thereto, and of this Agreement, (v) the fees and expenses incurred
in connection with the listing or qualification of the Placement Shares for trading on Nasdaq, (vi) the filing fees and expenses, if
any, of the Commission, (vii) the filing fees and associated legal expenses of Cowen’s outside counsel for filings with the FINRA
Corporate Financing Department, such legal expense reimbursement not to exceed $10,000, and (viii) the reasonable fees and disbursements
of Cowen’s counsel in an amount not to exceed $75,000 incurred by Cowen in connection with the entry into this Agreement.
(h)
Use of Proceeds. The Company will use the Net Proceeds as described in the Prospectus in the section entitled “Use
of Proceeds.”
(i)
Notice of Other Sales. During the pendency of any Placement Notice given hereunder, and for 5 Trading Days following
the termination of any Placement Notice given hereunder, the Company shall provide Cowen notice as promptly as reasonably possible before
it offers to sell, contracts to sell, sells, grants any option to sell or otherwise disposes of any shares of Common Stock (other than
Placement Shares offered pursuant to the provisions of this Agreement) or securities convertible into or exchangeable for Common Stock,
warrants or any rights to purchase or acquire Common Stock; provided, that such notice shall not be required in connection with
(i) the issuance, grant or sale of Common Stock, options to purchase shares of Common Stock or Common Stock issuable upon the exercise
of options or other equity awards pursuant to any stock option, stock bonus or other stock plan or arrangement described in the Prospectus,
(ii) the issuance of securities in connection with an acquisition, merger or sale or purchase of assets, (iii) the issuance or sale of
Common Stock pursuant to any dividend reinvestment plan that the Company may adopt from time to time provided the implementation of such
is disclosed to Cowen in advance, (iv) the issuance or sale of any shares of common stock issuable upon the exchange, conversion or redemption
of securities or the exercise of warrants, options or other rights in effect or outstanding or (v) the issuance or sale of any shares
of common stock, or securities convertible into or exercisable for common stock, offered and sold in a privately negotiated transaction
to vendors, customers, strategic partners or potential strategic partners conducted in a manner so as not to be integrated with the offering
of common stock hereby. Notwithstanding the foregoing provisions, nothing herein shall be construed to restrict the Company’s ability,
or require the Company to provide notice to Cowen, to file a registration statement under the Securities Act.
(j)
Change of Circumstances. The Company will, at any time during the pendency of a Placement Notice or sell Placement
Shares, advise Cowen promptly after it shall have received notice or obtained knowledge thereof, of any information or fact that would
alter or affect in any material respect any opinion, certificate, letter or other document provided to Cowen pursuant to this Agreement.
(k)
Due Diligence Cooperation. During the term of this Agreement, the Company will cooperate with any reasonable due
diligence review conducted by Cowen or its agents in connection with the transactions contemplated hereby, including, without limitation,
providing information and making available documents and senior corporate officers, during regular business hours and at the Company’s
principal offices, as Cowen may reasonably request.
(l)
Required Filings Relating to Placement of Placement Shares. The Company agrees that on such dates as the Securities
Act shall require, the Company will (i) file a prospectus supplement with the Commission under the applicable paragraph of Rule
424(b) under the Securities Act, and (ii) deliver such number of copies of each such prospectus supplement to each exchange or market
on which such sales were effected as may be required by the rules or regulations of such exchange or market. The Company shall disclose
in its Quarterly Reports on Form 10-Q and in its Annual Report on Form 10-K, the number of the Shares sold through Cowen under this Agreement,
and the Net Proceeds to the Company from the sale of the Shares and the compensation paid by the Company with respect to sales of the
Shares pursuant to this Agreement during the relevant quarter or, in the case of an Annual Report on Form 10-K, during the fiscal year
covered by such Annual Report and the fourth quarter of such fiscal year.
(m)
Representation Dates; Certificate. On or prior to the First Delivery Date and each time the Company (i) files the
Prospectus relating to the Placement Shares or amends or supplements the Registration Statement or the Prospectus relating to the Placement
Shares (other than a prospectus supplement filed in accordance with Section 7(l) of this Agreement) by means of a post-effective
amendment, sticker, or supplement but not by means of incorporation of document(s) by reference to the Registration Statement or the
Prospectus relating to the Placement Shares; (ii) files an Annual Report on Form 10-K under the Exchange Act; (iii) files its Quarterly
Reports on Form 10-Q under the Exchange Act; or (iv) files a report on Form 8-K containing amended financial information (other than
an earnings release) under the Exchange Act (each date of filing of one or more of the documents referred to in clauses (i) through (iv)
shall be a “Representation Date”); the Company shall furnish Cowen with a certificate, in the form attached
hereto as Exhibit 7(m) within three (3) Trading Days of any Representation Date if requested by Cowen. The requirement to provide
a certificate under this Section 7(m) shall be waived for any Representation Date occurring at a time at which no Placement Notice
is pending, which waiver shall continue until the earlier to occur of the date the Company delivers a Placement Notice hereunder (which
for such calendar quarter shall be considered a Representation Date) and the next occurring Representation Date; provided, however,
that such waiver shall not apply for any Representation Date on which the Company files its Annual Report on Form 10-K. Notwithstanding
the foregoing, if the Company subsequently decides to sell Placement Shares following a Representation Date when the Company relied on
such waiver and did not provide Cowen with a certificate under this Section 7(m), then before the Company delivers the Placement
Notice or Cowen sells any Placement Shares, the Company shall provide Cowen with a certificate, in the form attached hereto as Exhibit
7(m), dated the date of the Placement Notice.
(n)
Corporate Legal Opinion. On or prior to the First Delivery Date and within three (3) Trading Days of each Representation
Date with respect to which the Company is obligated to deliver a certificate in the form attached hereto as Exhibit 7(m) for which
no waiver is applicable, the Company shall cause to be furnished to Cowen a written opinion and negative assurance letter of Wilmer Cutler
Pickering Hale and Dorr LLP (collectively with Company IP Counsel (as defined below), the “Company Counsel”),
or other counsel satisfactory to Cowen, in form and substance reasonably satisfactory to Cowen and its counsel, dated the date that the
opinion is required to be delivered, modified, as necessary, to relate to the Registration Statement and the Prospectus as then amended
or supplemented; provided, however, that in lieu of such opinions for subsequent Representation Dates, counsel may furnish Cowen
with a letter (a “Reliance Letter”) to the effect that Cowen may rely on a prior opinion delivered under this
Section 7(n) to the same extent as if it were dated the date of such letter (except that statements in such prior opinion shall
be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented at such Representation Date).
(o)
Intellectual Property Opinion. On or prior to the First Delivery Date and within three (3) Trading Days of each
Representation Date with respect to which the Company is obligated to deliver a certificate in the form attached hereto as Exhibit
7(m) for which no waiver is applicable, the Company shall cause to be furnished to Cowen a written opinion and negative assurance
letter of Cooley LLP (“Company IP Counsel”), or other counsel satisfactory to Cowen, in form and substance
reasonably satisfactory to Cowen and its counsel, dated the date that the opinion is required to be delivered, with respect to intellectual
property matters, modified, as necessary, to relate to the Registration Statement and the Prospectus as then amended or supplemented;
provided, however, that in lieu of such opinions for subsequent Representation Dates, counsel may furnish Cowen with a Reliance
Letter to the effect that Cowen may rely on a prior opinion delivered under this Section 7(o) to the same extent as if it were
dated the date of such letter (except that statements in such prior opinion shall be deemed to relate to the Registration Statement and
the Prospectus as amended or supplemented at such Representation Date).
(p)
Comfort Letter. On or prior to the First Delivery Date and within three (3) Trading Days of each Representation
Date with respect to which the Company is obligated to deliver a certificate in the form attached hereto as Exhibit 7(m) for which
no waiver is applicable, the Company shall cause its independent accountants to furnish Cowen letters (the “Comfort Letters”),
dated the date the Comfort Letter is delivered, in form and substance reasonably satisfactory to Cowen, (i) confirming that they are
an independent registered public accounting firm within the meaning of the Securities Act and the PCAOB, (ii) stating, as of such date,
the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’
“comfort letters” to Cowen in connection with registered public offerings (the first such letter, the “Initial
Comfort Letter”) and (iii) updating the Initial Comfort Letter with any information that would have been included in the
Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement and the Prospectus,
as amended and supplemented to the date of such letter; provided, however, that the Company shall be required to furnish
no more than one Comfort Letter hereunder in connection with each filing of an Annual Report on Form 10-K or a Quarterly Report on Form
10-Q.
(q)
Market Activities. The Company will not, directly or indirectly, (i) take any action designed to cause or result
in, or that constitutes or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security
of the Company to facilitate the sale or resale of the Placement Shares or (ii) sell, bid for, or purchase the Placement Shares to be
issued and sold pursuant to this Agreement in violation of Regulation M, or pay anyone any compensation for soliciting purchases of the
Placement Shares other than Cowen; provided, however, that the Company may bid for and purchase shares of its common stock in accordance
with Rule 10b-18 under the Exchange Act.
(r)
Insurance. The Company and its subsidiary shall maintain, or cause to be maintained, insurance in such amounts and
covering such risks as is reasonable and customary for the business for which it is engaged.
(s)
Compliance with Laws. The Company and each of its subsidiary shall maintain, or cause to be maintained, all material
environmental permits, licenses and other authorizations required by federal, state and local law in order to conduct their businesses
as described in the Prospectus, and the Company and its subsidiary shall conduct their businesses, or cause their businesses to be conducted,
in substantial compliance with such permits, licenses and authorizations and with applicable environmental laws, except where the failure
to maintain or be in compliance with such permits, licenses and authorizations would not reasonably be expected to result in a Material
Adverse Change.
(t)
Investment Company Act. The Company will conduct its affairs in such a manner so as to reasonably ensure that neither
it nor its subsidiary will be or become, at any time prior to the termination of this Agreement, an “investment company,”
as such term is defined in the Investment Company Act, assuming no change in the Commission’s current interpretation as to entities
that are not considered an investment company.
(u)
Securities Act and Exchange Act. The Company will use its best efforts to comply with all requirements imposed upon
it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of,
or dealings in, the Placement Shares as contemplated by the provisions hereof and the Prospectus.
(v)
No Offer to Sell. Other than a free writing prospectus (as defined in Rule 405 under the Securities Act) approved
in advance by the Company and Cowen in its capacity as principal or agent hereunder, neither Cowen nor the Company (including its agents
and representatives, other than Cowen in its capacity as such) will make, use, prepare, authorize, approve or refer to any written communication
(as defined in Rule 405 under the Securities Act), required to be filed with the Commission, that constitutes an offer to sell or solicitation
of an offer to buy Common Stock relating to the Placement Shares to be sold by Cowen as principal or agent hereunder.
(w)
Sarbanes-Oxley Act. The Company and its subsidiary will use its reasonable best efforts to comply with all effective applicable
provisions of the Sarbanes-Oxley Act.
(x)
Affirmation. Each Placement Notice delivered by the Company to Cowen shall be deemed to be (i) an affirmation that the
representations, warranties and agreements of the Company herein contained and contained in any certificate delivered to Cowen pursuant
hereto are true and correct at the time of delivery of such Placement Notice, and (ii) an undertaking that such representations, warranties
and agreements will be true and correct on any applicable Representation Date and Settlement Date, as though made at and as of each such
time (it being understood that such representations, warranties and agreements shall relate to the Registration Statement and the Prospectus
as amended and supplemented to the time of such Placement Notice acceptance).
8. Conditions
to Cowen’s Obligations. The obligations of Cowen hereunder with respect to a Placement Notice will be subject to the continuing
accuracy and completeness of the representations and warranties made by the Company herein, to the due performance by the Company of
its obligations hereunder and thereunder, to the completion by Cowen of a due diligence review satisfactory to Cowen in its reasonable
judgment, and to the continuing satisfaction (or waiver by Cowen in its sole discretion) of the following additional conditions:
(a)
Registration Statement Effective. The Registration Statement shall be effective and shall be available for (i) all
sales of Placement Shares issued pursuant to all prior Placement Notices and (ii) the sale of all Placement Shares contemplated to be
issued pursuant to any Placement Notice.
(b)
No Material Notices. None of the following events shall have occurred and be continuing: (i) receipt by the Company
or its subsidiary of any request for additional information from the Commission or any other federal or state governmental authority
during the period of effectiveness of the Registration Statement, the response to which would require any post-effective amendments or
supplements to the Registration Statement or the Prospectus; (ii) the issuance by the Commission or any other federal or state governmental
authority of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that
purpose; (iii) receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification
of any of the Placement Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv)
the occurrence of any event that makes any material statement made in the Registration Statement or the Prospectus or any material document
incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes
in the Registration Statement, related Prospectus or such documents incorporated or deemed to be incorporated therein by reference so
that, in the case of the Registration Statement, it will not contain any materially untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the statements therein not misleading and, that in the case of the
Prospectus, it will not contain any materially untrue statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c)
No Misstatement or Material Omission. Cowen shall not have advised the Company that the Registration Statement or
Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact that in Cowen’s reasonable opinion is
material, or omits to state a fact that in Cowen’s reasonable opinion is material and is required to be stated therein or is necessary
to make the statements therein not misleading.
(d)
Material Changes. Except as contemplated in the Prospectus, or disclosed in the Company’s reports filed with
the Commission, there shall not have been any Material Adverse Change, on a consolidated basis, in the authorized capital stock of the
Company or any Material Adverse Change or any development that could reasonably be expected to result in a Material Adverse Change, or
any downgrading in or withdrawal of the rating assigned to any of the Company’s securities (other than asset backed securities)
by any rating organization or a public announcement by any rating organization that it has under surveillance or review its rating of
any of the Company’s securities (other than asset backed securities), the effect of which, in the case of any such action by a
rating organization described above, in the reasonable judgment of Cowen (without relieving the Company of any obligation or liability
it may otherwise have), is so material as to make it impracticable or inadvisable to proceed with the offering of the Placement Shares
on the terms and in the manner contemplated in the Prospectus.
(e)
Company Counsel Legal Opinions. Cowen shall have received the opinions of Company Counsel required to be delivered
pursuant to Section 7(n) and Section 7(o) on or before the date on which such delivery of such opinion is required pursuant
to Section 7(n) and Section 7(o).
(f)
Cowen Counsel Legal Opinion. Cowen shall have received from Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.,
counsel for Cowen, such opinion or opinions, on or before the date on which the delivery of the Company Counsel legal opinions are required
pursuant to Section 7(n) and Section 7(o), with respect to such matters as Cowen may reasonably require, and the Company
shall have furnished to such counsel such documents as they reasonably request for enabling them to pass upon such matters.
(g)
Comfort Letter. Cowen shall have received the Comfort Letter required to be delivered pursuant to Section 7(p)
on or before the date on which such delivery of such Comfort Letter is required pursuant to Section 7(p).
(h)
Representation Certificate. Cowen shall have received the certificate required to be delivered pursuant to Section 7(m)
on or before the date on which delivery of such certificate is required pursuant to Section 7(m).
(i)
Secretary’s Certificate. On or prior to the First Delivery Date, Cowen shall have received a certificate,
signed on behalf of the Company by its corporate Secretary, in form and substance reasonably satisfactory to Cowen and its counsel.
(j)
No Suspension. Trading in the Common Stock shall not have been suspended on Nasdaq.
(k)
Other Materials. On each date on which the Company is required to deliver a certificate pursuant to Section 7(m),
the Company shall have furnished to Cowen such appropriate further information, certificates and documents as Cowen may have reasonably
requested. All such opinions, certificates, letters and other documents shall have been in compliance with the provisions hereof. The
Company will furnish Cowen with such conformed copies of such opinions, certificates, letters and other documents as Cowen shall have
reasonably requested.
(l)
Securities Act Filings Made. All filings with the Commission with respect to the Placement Shares required by Rule
424 under the Securities Act to have been filed prior to the issuance of any Placement Notice hereunder shall have been made within the
applicable time period prescribed for such filing by Rule 424.
(m)
Approval for Listing. The Placement Shares shall either have been (i) approved for listing on Nasdaq, subject only
to notice of issuance, or (ii) the Company shall have filed an application for listing of the Placement Shares on Nasdaq at, or prior
to, the issuance of any Placement Notice.
(n)
No Termination Event. There shall not have occurred any event that would permit Cowen to terminate this Agreement
pursuant to Section 11(a).
9.
Indemnification and Contribution.
(a) Company
Indemnification. The Company agrees to indemnify and hold harmless Cowen, the directors, officers, partners, employees and agents
of Cowen and each person, if any, who (i) controls Cowen within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, or (ii) is controlled by or is under common control with Cowen from and against any and all losses, claims, liabilities,
expenses and damages (including, but not limited to, any and all reasonable investigative, legal and other expenses incurred in connection
with, and any and all amounts paid in settlement (in accordance with Section 9(c)) of, any action, suit or proceeding between
any of the indemnified parties and any indemnifying parties or between any indemnified party and any third party, or otherwise, or any
claim asserted), as and when incurred, to which Cowen, or any such person, may become subject under the Securities Act, the Exchange
Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, liabilities, expenses
or damages arise out of or are based, directly or indirectly, on (x) any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment or supplement thereto) or any omission or alleged omission to state therein
a material fact required to be stated therein or necessary in order to make the statements therein, not misleading, or (y) any untrue
statement or alleged untrue statement of a material fact contained in the Prospectus (or any amendment or supplement thereto) or “issuer
free writing prospectus,” as defined in Rule 433 of the Securities Act regulations, or any omission or alleged omission to state
therein a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made,
not misleading; provided, however, that this indemnity agreement shall not apply to the extent that such loss, claim, liability,
expense or damage arises from the sale of the Placement Shares pursuant to this Agreement and is caused directly or indirectly by an
untrue statement or omission made in reliance upon and in conformity with the Agent’s Information. This indemnity agreement will
be in addition to any liability that the Company might otherwise have.
(b)
Cowen Indemnification. Cowen agrees to indemnify and hold harmless the Company and its directors and each officer
of the Company that signed the Registration Statement, and each person, if any, who (i) controls the Company within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act or (ii) is controlled by or is under common control with the Company
against any and all loss, liability, claim, damage and expense described in the indemnity contained in Section 9(a), as incurred,
but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement
(or any amendments thereto) or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with the Agent’s
Information.
(c)
Procedure. Any party that proposes to assert the right to be indemnified under this Section 9 will, promptly
after receipt of notice of commencement of any action against such party in respect of which a claim is to be made against an indemnifying
party or parties under this Section 9, notify each such indemnifying party in writing of the commencement of such action, enclosing
a copy of all papers served, but the omission to so notify such indemnifying party will not relieve the indemnifying party from (i) any
liability that it might have to any indemnified party otherwise than under this Section 9 and (ii) any liability that it may have
to any indemnified party under the foregoing provision of this Section 9 unless, and only to the extent that, such omission results
in the forfeiture of substantive rights or defenses by the indemnifying party. If any such action is brought against any indemnified
party and it notifies the indemnifying party of its commencement, the indemnifying party will be entitled to participate in and, to the
extent that it elects by delivering written notice to the indemnified party promptly after receiving notice of the commencement of the
action from the indemnified party, jointly with any other indemnifying party similarly notified, to assume the defense of the action,
with counsel reasonably satisfactory to the indemnified party, and after notice from the indemnifying party to the indemnified party
of its election to assume the defense, the indemnifying party will not be liable to the indemnified party for any legal or other expenses
except as provided below and except for the reasonable costs of investigation subsequently incurred by the indemnified party in connection
with the defense. The indemnified party will have the right to employ its own counsel in any such action, but the fees, expenses and
other charges of such counsel will be at the expense of such indemnified party unless (1) the employment of counsel by the indemnified
party has been authorized in writing by the indemnifying party, (2) the indemnified party has reasonably concluded (based on advice of
counsel) that there may be legal defenses available to it or other indemnified parties that are different from or in addition to those
available to the indemnifying party, (3) a conflict or potential conflict exists (based on advice of counsel to the indemnified party)
between the indemnified party and the indemnifying party (in which case the indemnifying party will not have the right to direct the
defense of such action on behalf of the indemnified party) or (4) the indemnifying party has not in fact employed counsel to assume the
defense of such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases the
reasonable and documented fees, disbursements and other charges of counsel will be at the expense of the indemnifying party or parties.
It is understood that the indemnifying party or parties shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable and documented fees, disbursements and other charges of more than one separate firm admitted
to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges
will be reimbursed by the indemnifying party promptly as they are incurred. An indemnifying party will not, in any event, be liable for
any settlement of any action or claim effected without its written consent. No indemnifying party shall, without the prior written consent
of each indemnified party, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or
proceeding relating to the matters contemplated by this Section 9 (whether or not any indemnified party is a party thereto), unless
such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising or that
may arise out of such claim, action or proceeding.
(d)
Contribution. In order to provide for just and equitable contribution in circumstances in which the indemnification
provided for in the foregoing paragraphs of this Section 9 is applicable in accordance with its terms but for any reason is held
to be unavailable from the Company or Cowen, the Company and Cowen will contribute to the total losses, claims, liabilities, expenses
and damages (including any investigative, legal and other expenses reasonably incurred in connection with, and any amount paid in settlement
of, any action, suit or proceeding or any claim asserted, but after deducting any contribution received by the Company from persons other
than Cowen, such as persons who control the Company within the meaning of the Securities Act, officers of the Company who signed the
Registration Statement and directors of the Company, who also may be liable for contribution) to which the Company and Cowen may be subject
in such proportion as shall be appropriate to reflect the relative benefits received by the Company on the one hand and Cowen on the
other. The relative benefits received by the Company on the one hand and Cowen on the other hand shall be deemed to be in the same proportion
as the total Net Proceeds from the sale of the Placement Shares (before deducting expenses) received by the Company bear to the total
compensation received by Cowen from the sale of Placement Shares on behalf of the Company. If, but only if, the allocation provided by
the foregoing sentence is not permitted by applicable law, the allocation of contribution shall be made in such proportion as is appropriate
to reflect not only the relative benefits referred to in the foregoing sentence but also the relative fault of the Company, on the one
hand, and Cowen, on the other, with respect to the statements or omission that resulted in such loss, claim, liability, expense or damage,
or action in respect thereof, as well as any other relevant equitable considerations with respect to such offering. Such relative fault
shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact relates to information supplied by the Company or Cowen, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and Cowen agree
that it would not be just and equitable if contributions pursuant to this Section 9(d) were to be determined by pro rata allocation
or by any other method of allocation that does not take into account the equitable considerations referred to herein. The amount paid
or payable by an indemnified party as a result of the loss, claim, liability, expense, or damage, or action in respect thereof, referred
to above in this Section 9(d) shall be deemed to include, for the purpose of this Section 9(d), any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim to the extent consistent
with Section 9(c) hereof. Notwithstanding the foregoing provisions of this Section 9(d), Cowen shall not be required to
contribute any amount in excess of the commissions received by it under this Agreement and no person found guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) will be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 9(d), any person who controls a party to this Agreement within the
meaning of the Securities Act, and any officers, directors, partners, employees or agents of Cowen, will have the same rights to contribution
as that party, and each officer of the Company who signed the Registration Statement will have the same rights to contribution as the
Company, subject in each case to the provisions hereof. Any party entitled to contribution, promptly after receipt of notice of commencement
of any action against such party in respect of which a claim for contribution may be made under this Section 9(d), will notify
any such party or parties from whom contribution may be sought, but the omission to so notify will not relieve that party or parties
from whom contribution may be sought from any other obligation it or they may have under this Section 9(d) except to the extent
that the failure to so notify such other party materially prejudiced the substantive rights or defenses of the party from whom contribution
is sought. Except for a settlement entered into pursuant to the last sentence of Section 9(c) hereof, no party will be liable
for contribution with respect to any action or claim settled without its written consent if such consent is required pursuant to Section
9(c) hereof.
10.
Representations and Agreements to Survive Delivery. The indemnity and contribution agreements contained in Section
9 of this Agreement and all representations and warranties of the Company herein or in certificates delivered pursuant hereto shall
survive, as of their respective dates, regardless of (i) any investigation made by or on behalf of Cowen, any controlling persons, or
the Company (or any of their respective officers, directors or controlling persons), (ii) delivery and acceptance of the Placement Shares
and payment therefor or (iii) any termination of this Agreement.
11.
Termination.
(a)
Cowen shall have the right by giving notice as hereinafter specified at any time to terminate this Agreement if (i) any
Material Adverse Change, or any development that could reasonably be expected to result in a Material Adverse Change has occurred that,
in the reasonable judgment of Cowen, may materially impair the ability of Cowen to sell the Placement Shares hereunder, (ii) the Company
shall have failed, refused or been unable to perform any agreement on its part to be performed hereunder; provided, however, in
the case of any failure of the Company to deliver (or cause another person to deliver) any certification, opinion, or letter required
under Sections 7(m), 7(n), 7(o), or 7(p), Cowen’s right to terminate shall not arise unless such failure
to deliver (or cause to be delivered) continues for more than thirty (30) days from the date such delivery was required; or (iii) any
other condition of Cowen’s obligations hereunder is not fulfilled, or (iv), any suspension or limitation of trading in the Placement
Shares or in securities generally on Nasdaq shall have occurred. Any such termination shall be without liability of any party to any
other party except that the provisions of Section 7(g) (Expenses), Section 9 (Indemnification and Contribution), Section
10 (Representations and Agreements to Survive Delivery), Section 16 (Applicable Law; Consent to Jurisdiction) and Section
17 (Waiver of Jury Trial) hereof shall remain in full force and effect notwithstanding such termination. If Cowen elects to terminate
this Agreement as provided in this Section 11(a), Cowen shall provide the required notice as specified in Section 12 (Notices).
(b)
The Company shall have the right, by giving ten (10) days’ notice as hereinafter specified to terminate this Agreement
in its sole discretion at any time after the date of this Agreement. Any such termination shall be without liability of any party to
any other party except that the provisions of Section 7(g), Section 9, Section 10, Section 16 and Section
17 hereof shall remain in full force and effect notwithstanding such termination.
(c)
Cowen shall have the right, by giving ten (10) days’ notice as hereinafter specified to terminate this Agreement
in its sole discretion at any time after the date of this Agreement. Any such termination shall be without liability of any party to
any other party except that the provisions of Section 7(g), Section 9, Section 10, Section 16 and Section
17 hereof shall remain in full force and effect notwithstanding such termination.
(d)
Unless earlier terminated pursuant to this Section 11, this Agreement shall automatically terminate upon the issuance
and sale of all of the Placement Shares through Cowen on the terms and subject to the conditions set forth herein; provided that
the provisions of Section 7(g), Section 9, Section 10, Section 16 and Section 17 hereof shall remain
in full force and effect notwithstanding such termination.
(e)
This Agreement shall remain in full force and effect unless terminated pursuant to Sections 11(a), (b), (c),
or (d) above or otherwise by mutual agreement of the parties; provided, however, that any such termination by mutual agreement
shall in all cases be deemed to provide that Section 7(g), Section 9, Section 10, Section 16 and Section
17 shall remain in full force and effect. Upon termination of this Agreement, the Company shall not have any liability to Cowen for
any discount, commission, or other compensation with respect to any Placement Shares not otherwise sold by Cowen under this Agreement,
or otherwise, except with respect to reimbursement of expenses pursuant to Section 7(g).
(f)
Any termination of this Agreement shall be effective on the date specified in such notice of termination; provided,
however, that such termination shall not be effective until the close of business on the date of receipt of such notice by Cowen
or the Company, as the case may be. If such termination shall occur prior to the Settlement Date for any sale of Placement Shares, such
Placement Shares shall settle in accordance with the provisions of this Agreement.
(g)
Subject to the additional limitation set forth in Section 7 of this Agreement, in the event of termination of this
Agreement prior to the sale of any Placement Shares, Cowen shall be entitled only to reimbursement of its out-of-pocket expenses actually
incurred; provided that in the event of termination of this Agreement pursuant to Section 11(c), Cowen shall not be entitled
to any reimbursement of its out-of-pocket expenses that have not already been reimbursed prior to such termination pursuant to Section
11(c).
12.
Notices. All notices or other communications required or permitted to be given by any party to any other party pursuant
to the terms of this Agreement shall be in writing, unless otherwise specified in this Agreement, and if sent to Cowen, shall be delivered
to Cowen at Cowen and Company, LLC, 599 Lexington Avenue, New York, NY 10022, fax no. 646-562-1130, Attention: General Counsel; or if
sent to the Company, shall be delivered to Mersana Therapeutics, Inc., 840 Memorial Drive, Cambridge, MA 02139, fax no. 617-498-0109,
attention: Legal Department, e-mail: legal@mersana.com, with a copy to Wilmer Cutler Pickering Hale and Dorr LLP, 60 State Street, Boston,
MA 02109, Attention: Craig Hilts, e-mail: craig.hilts@wilmerhale.com. Each party to this Agreement may change such address for notices
by sending to the parties to this Agreement written notice of a new address for such purpose. Each such notice or other communication
shall be deemed given (i) when delivered personally or by verifiable facsimile transmission (with an original to follow) on or before
4:30 p.m., New York City time, on a Business Day (as defined below), or, if such day is not a Business Day on the next succeeding Business
Day, (ii) on the next Business Day after timely delivery to a nationally-recognized overnight courier and (iii) on the Business Day actually
received if deposited in the U.S. mail (certified or registered mail, return receipt requested, postage prepaid). For purposes of this
Agreement, “Business Day” shall mean any day on which the Nasdaq and commercial banks in the City of New York
are open for business.
13.
Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the Company and Cowen and
their respective successors and the affiliates, controlling persons, officers and directors referred to in Section 9 hereof. References
to any of the parties contained in this Agreement shall be deemed to include the successors and permitted assigns of such party. Nothing
in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors
and permitted assigns any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement. Neither party may assign its rights or obligations under this Agreement without the prior written consent of the other
party; provided, however, that Cowen may assign its rights and obligations hereunder to an affiliate of Cowen without obtaining
the Company’s consent.
14. Adjustments
for Share Splits. The parties acknowledge and agree that all share-related numbers contained in this Agreement shall be adjusted
to take into account any share split, share dividend or similar event effected with respect to the Common Stock.
15. Entire
Agreement; Amendment; Severability. This Agreement (including all schedules and exhibits attached hereto and Placement Notices issued
pursuant hereto) constitutes the entire agreement and supersedes all other prior and contemporaneous agreements and undertakings, both
written and oral, among the parties hereto with regard to the subject matter hereof. Neither this Agreement nor any term hereof may be
amended except pursuant to a written instrument executed by the Company and Cowen. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable as written by a court of
competent jurisdiction, then such provision shall be given full force and effect to the fullest possible extent that it is valid, legal
and enforceable, and the remainder of the terms and provisions herein shall be construed as if such invalid, illegal or unenforceable
term or provision was not contained herein, but only to the extent that giving effect to such provision and the remainder of the terms
and provisions hereof shall be in accordance with the intent of the parties as reflected in this Agreement.
16. Applicable
Law; Consent to Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the internal laws of the State
of New York without regard to the principles of conflicts of laws. Each party hereby irrevocably submits to the non-exclusive jurisdiction
of the state and federal courts sitting in the City of New York, borough of Manhattan, for the adjudication of any dispute hereunder
or in connection with any transaction contemplated hereby, and hereby irrevocably waives, and agrees not to assert in any suit, action
or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding
is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Each party hereby irrevocably waives
personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof (certified
or registered mail, return receipt requested) to such party at the address in effect for notices to it under this Agreement and agrees
that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed
to limit in any way any right to serve process in any manner permitted by law.
17. Waiver
of Jury Trial. The Company and Cowen each hereby irrevocably waives any right it may have to a trial by jury in respect of any claim
based upon or arising out of this Agreement or any transaction contemplated hereby.
18. Absence
of Fiduciary Relationship. The Company acknowledges and agrees that:
(a)
Cowen has been retained solely to act as sales agent in connection with the sale of the Placement Shares contemplated hereby
and that no fiduciary, advisory or agency relationship between the Company and Cowen has been created in respect of any of the transactions
contemplated by this Agreement, irrespective of whether Cowen has advised or is advising the Company on other matters;
(b)
the Company is capable of evaluating and understanding and understands and accepts the terms, risks and conditions of the
transactions contemplated by this Agreement;
(c)
the Company has been advised that Cowen and its affiliates are engaged in a broad range of transactions which may involve
interests that differ from those of the Company and that Cowen has no obligation to disclose such interests and transactions to the Company
by virtue of any fiduciary, advisory or agency relationship; and
(d)
the Company waives, to the fullest extent permitted by law, any claims it may have against Cowen, for breach of fiduciary
duty or alleged breach of fiduciary duty and agrees that Cowen shall have no liability (whether direct or indirect) to the Company in
respect of such a fiduciary claim or to any person asserting a fiduciary duty claim on behalf of or in right of the Company, including
stockholders, partners, employees or creditors of the Company.
19.
Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument. Delivery of an executed Agreement by one party to the other may
be made by facsimile or by electronic transmission (including pdf or any electronic signature complying with the U.S. federal ESIGN Act
of 2000, e.g., www.docusign.com or www.echosign.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.
20.
Definitions. As used in this Agreement, the following term has the meaning set forth below:
(a)
“Applicable Time” means the date of this Agreement, each Representation Date, the date on which
a Placement Notice is given, and any date on which Placement Shares are sold hereunder.
(b)
“Agent’s Information” means, solely the following information in the Prospectus: the first
and third sentences in the eighth paragraph under the caption “Plan of Distribution” in the Prospectus.
21.
Recognition of the U.S. Special Resolution Regimes.
(a)
In the event that Cowen is a Covered Entity and becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer
from Cowen of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the
transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed
by the laws of the United States or a state of the United States.
(b)
In the event that Cowen is a Covered Entity and Cowen or a BHC Act Affiliate of Cowen becomes subject to a proceeding under a
U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against Cowen are permitted to be exercised
to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed
by the laws of the United States or a state of the United States.
(c)
For purposes of this Section 21; (a) “BHC Act Affiliate” has the meaning assigned to the term “affiliate”
in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k), (b) “Covered Entity” means any of
the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii)
a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b), (c) “Default
Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81,
47.2 or 382.1, as applicable, and (d) “U.S. Special Resolution Regime” means each of (i) the Federal Deposit
Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection
Act and the regulations promulgated thereunder.
[Remainder of Page Intentionally Blank]
If the foregoing correctly
sets forth the understanding between the Company and Cowen, please so indicate in the space provided below for that purpose, whereupon
this letter shall constitute a binding agreement between the Company and Cowen.
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Very truly yours, |
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COWEN AND COMPANY, LLC |
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By: |
/s/
Michael Murphy |
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Name: Michael Murphy |
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Title: Managing Director |
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ACCEPTED as of the date first-above
written: |
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MERSANA THERAPEUTICS, INC. |
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By: |
/s/ Brian DeSchuytner |
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Name: Brian DeSchuytner |
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Title: Senior Vice President, Chief Operating
Officer and Chief Financial Officer |
SCHEDULE 1
form
of PLACEMENT NOTICE
From: | [ ____________________ ] |
Cc: | [ ____________________ ] |
To: | [ ____________________ ] |
Subject: | Cowen at the Market Offering—Placement Notice |
Gentlemen:
Pursuant to the terms and subject to the conditions
contained in the Sales Agreement between Mersana Therapeutics, Inc. (the “Company”), and Cowen and Company, LLC (“Cowen”)
dated February 28, 2024 (the “Agreement”), I hereby request on behalf of the Company that Cowen sell up to [ ] shares
of the Company’s common stock, par value $0.0001 per share, at a minimum market price of $_______ per share. Sales should begin
on the date of this Notice and shall continue until [DATE] [all shares are sold].
SCHEDULE 2
Mersana Therapeutics, Inc.
Martin Huber, M.D., President and Chief Executive Officer
Brian DeSchuytner, Senior Vice President, Chief Operating Officer
and Chief Financial Officer
Cowen and Company, LLC
Michael Murphy, Managing Director, Equity Capital Markets
Adriano Pierroz, Vice President, Equity Capital Markets
Ryan Eurick, Associate, Equity Capital Markets
SCHEDULE 3
Compensation
Cowen shall be paid compensation up to 3.0% of
the gross proceeds from the sales of Placement Shares pursuant to the terms of this Agreement.
SCHEDULE 4
Schedule of Subsidiaries
Mersana Securities Corp.
Exhibit 7(m)
OFFICER CERTIFICATE
The undersigned, the duly qualified and elected
_______________________, of Mersana Therapeutics, Inc. (“Company”), a Delaware corporation, does hereby certify
in such capacity and on behalf of the Company, pursuant to Section 7(m) of the Sales Agreement dated February 28, 2024 (the “Sales
Agreement”) between the Company and Cowen and Company, LLC, that to the best of the knowledge of the undersigned (capitalized
terms used but not defined herein shall have the meanings ascribed to them in the Sales Agreement):
(i) The
representations and warranties of the Company in Section 6 of the Sales Agreement (A) to the extent such representations and warranties
are subject to qualifications and exceptions contained therein relating to materiality or Material Adverse Change, are true and correct
on and as of the date hereof with the same force and effect as if expressly made on and as of the date hereof, except for those representations
and warranties that speak solely as of a specific date and which were true and correct as of such date, and (B) to the extent such representations
and warranties are not subject to any qualifications or exceptions, are true and correct in all material respects as of the date hereof
as if made on and as of the date hereof with the same force and effect as if expressly made on and as of the date hereof except for those
representations and warranties that speak solely as of a specific date and which were true and correct as of such date; and
(ii) The
Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied pursuant to the Sales
Agreement at or prior to the date hereof.
Exhibit 5.1
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![](https://www.sec.gov/Archives/edgar/data/1442836/000110465924028715/tm247340d5_ex5-1img003.jpg)
+1 617 526 6000 (t)
+1 617 526 5000 (f)
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February 28, 2024
Mersana Therapeutics, Inc.
840 Memorial Drive
Cambridge, Massachusetts 02139
Re: Prospectus
Supplement to Registration Statement on Form S-3
Ladies and Gentlemen:
This opinion is furnished to you in connection
with (i) the Registration Statement on Form S-3, as amended by Post-Effective Amendment No. 1 to the Registration Statement
on Form S-3 (File No. 333-271766) (the “Registration Statement”), filed by Mersana Therapeutics, Inc., a Delaware
corporation (the “Company”), with the Securities and Exchange Commission (the “Commission”) under the Securities
Act of 1933, as amended (the “Securities Act”), for the purpose of registering with the Commission under the Securities Act,
among other things, shares of common stock, $0.0001 par value per share (the “Common Stock”), of the Company, which may be
issued and sold by the Company from time to time on a delayed or continuous basis pursuant to Rule 415 under the Securities Act at
an aggregate offering price not to exceed $300,000,000, as set forth in the Registration Statement and the prospectus contained therein
(the “Base Prospectus”) and (ii) the prospectus supplement, dated February 28, 2024 (the “Prospectus Supplement”
and, together with the Base Prospectus, the “Prospectus”), relating to the issuance and sale from time to time by the Company
of shares of Common Stock with an aggregate offering price of up to $100,000,000 (the “Shares”).
The Shares are to be issued and sold by the Company
pursuant to the Sales Agreement, dated February 28, 2024, between the Company and Cowen and Company, LLC (the “Sales Agreement”).
We are acting as counsel for the Company in connection
with the issuance and sale by the Company of the Shares. We have examined and relied upon copies of the Registration Statement as filed
with the Commission, including the exhibits thereto, and the Prospectus as filed with the Commission. We have also examined and relied
upon the Sales Agreement, minutes of meetings of the stockholders and the Board of Directors of the Company, including committees thereof
as provided to us by the Company, stock record books of the Company as provided to us by the Company, the Certificate of Incorporation
and Bylaws of the Company, each as restated and/or amended to date, and such other documents as we have deemed necessary for purposes
of rendering the opinion hereinafter set forth.
In our examination of the foregoing documents,
we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original
documents of all documents submitted to us as copies, the authenticity of the originals of such latter documents and the legal competence
of all signatories to such documents.
Mersana Therapeutics, Inc. February 28, 2024
Page 2 |
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We express no opinion herein as to the laws of
any state or jurisdiction other than the General Corporation Law of the State of Delaware.
Based upon and subject to the foregoing, we are of the opinion that
the Shares have been duly authorized for issuance and, when the Shares are issued and paid for in accordance with the terms and conditions
of the Sales Agreement, the Shares will be validly issued, fully paid and nonassessable.
Please note that we are opining only as to the
matters expressly set forth herein, and no opinion should be inferred as to any other matters. This opinion is based upon currently existing
statutes, rules, regulations and judicial decisions, and we disclaim any obligation to advise you of any change in any of these sources
of law or subsequent legal or factual developments which might affect any matters or opinions set forth herein.
We hereby consent to the filing of this opinion
with the Commission in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act as an exhibit
to the Current Report on Form 8-K to be filed by the Company on the date hereof in connection with the issuance and sale of the Shares
and to the use of our name therein and in the related Prospectus Supplement under the caption “Legal Matters.” In giving such
consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities
Act or the rules and regulations of the Commission.
Very truly yours,
/s/ Wilmer Cutler Pickering Hale and Dorr LLP
WILMER CUTLER PICKERING HALE AND DORR LLP
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