The selling stockholders may offer and
sell any of the shares from time to time in a number of different ways and at varying prices, and may engage a broker, dealer or
underwriter to sell the shares. Information regarding the selling stockholders and the times and manner in which they may offer
and sell the shares under this prospectus is provided under “Selling Stockholders” and “Plan of Distribution”
in the prospectus dated August 5, 2020. See “Plan of Distribution” beginning on page 95 of the prospectus for more
information about how the selling stockholders may sell or otherwise dispose of the shares of common stock being registered pursuant
to the prospectus.
We are filing this prospectus supplement
to supplement and amend the information previously included in the prospectus with the information contained in our Current Report
on Form 8-K (the “Form 8-K”) filed with the Securities and Exchange Commission on September 21, 2020. Accordingly,
we have attached our Form 8-K to this prospectus supplement. You should read this prospectus supplement together with the prospectus
and any prior prospectus supplements thereto, each to be delivered with this prospectus supplement.
Our common stock is quoted on the Nasdaq
Capital Market under the symbol “HGEN”. On September 18, 2020, the last reported sale of our common stock on the Nasdaq
Capital Market was $9.65 per share.
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):
Indicate by check mark whether the registrant is
an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities
Exchange Act of 1934 (17 CFR §240.12b-2).
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. o
On September 17, 2020, Humanigen, Inc. (the “Company”)
entered into an underwriting agreement (the “Underwriting Agreement”) with J.P. Morgan Securities LLC and Jefferies
LLC, as representatives of the several underwriters, in connection with the public offering of 8,000,000 of the Company’s
shares of common stock, par value $0.001 per share. The closing of the offering is expected to occur on or about September 22,
2020. Pursuant to the Underwriting Agreement, the Company granted the underwriters a 30-day option to purchase an additional 1,200,000
shares of common stock, which option was exercised in full by the underwriters on September
18, 2020.
As a result of the pricing of
the public offering, the Company’s common stock has commenced trading on the Nasdaq Capital Market under the symbol “HGEN.”
The Company estimates that the net proceeds from the sale of
the full 9,200,000 shares in the offering, after deducting underwriting discounts and estimated offering costs, will be approximately
$72.8 million. The Company expects to use the net proceeds from the offering to support its manufacturing, production and commercial
preparation activities relating to lenzilumab as a potential therapy for COVID-19 patients and for general corporate purposes.
A copy of the Underwriting Agreement
is filed as Exhibit 1.1 to this Current Report on Form 8-K and is incorporated herein by reference. The summary set forth above
is qualified in its entirety by reference to Exhibit 1.1.
Underwriting Agreement
September 17, 2020
J.P. Morgan Securities LLC
Jefferies LLC
As Representatives of the
several Underwriters listed
in Schedule 1 hereto
c/o J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
c/o Jefferies LLC
520 Madison Avenue
New York, New York 10022
Ladies and Gentlemen:
Humanigen, Inc., a Delaware corporation (the “Company”),
proposes to issue and sell to the several underwriters listed in Schedule 1 hereto (the “Underwriters”), for whom you
are acting as representatives (the “Representatives”), an aggregate of 8,000,000 shares of common stock, par value
$0.001 per share (the “Common Stock”), of the Company (the “Underwritten Shares”) and, at the option of
the Underwriters, up to an additional 1,200,000 shares of Common Stock of the Company (the “Option Shares”). The Underwritten
Shares and the Option Shares are herein referred to as the “Shares”. The shares of Common Stock of the Company to be
outstanding after giving effect to the sale of the Shares are referred to herein as the “Stock”.
The Company hereby confirms its agreement with the several
Underwriters concerning the purchase and sale of the Shares, as follows:
1. Registration
Statement. The Company has prepared and filed with the Securities and Exchange Commission (the “Commission”) under
the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Securities
Act”), a registration statement (File No. 333-248485), including a prospectus, relating to the Shares. Such registration
statement, as amended at the time it became effective, including the information, if any, deemed pursuant to Rule 430A, 430B or
430C under the Securities Act to be part of the registration statement at the time of its effectiveness (“Rule 430 Information”),
is
referred to herein as the “Registration Statement”; and as used herein, the term “Preliminary Prospectus”
means each prospectus included in such registration statement (and any amendments thereto) before effectiveness, any prospectus
filed with the Commission pursuant to Rule 424(a) under the Securities Act and the prospectus included in the Registration Statement
at the time of its effectiveness that omits Rule 430 Information, and the term “Prospectus” means the prospectus in
the form first used (or made available upon request of purchasers pursuant to Rule 173 under the Securities Act) in connection
with confirmation of sales of the Shares. If the Company has filed an abbreviated registration statement pursuant to Rule 462(b)
under the Securities Act (the “Rule 462 Registration Statement”), then any reference herein to the term “Registration
Statement” shall be deemed to include such Rule 462 Registration Statement. Any reference in this underwriting agreement
(this “Agreement”) to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Securities Act, as of
the effective date of the Registration Statement or the date of such Preliminary Prospectus or the Prospectus, as the case may
be , and any reference to “amend”, “amendment” or “supplement” with respect to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents filed after such
date under the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder (collectively,
the “Exchange Act”) that are deemed to be incorporated by reference therein. Capitalized terms used but not defined
herein shall have the meanings given to such terms in the Registration Statement and the Prospectus.
At or prior to the Applicable Time (as defined below),
the Company had prepared a Preliminary Prospectus dated September 15, 2020 and the pricing information set forth on Annex A (the
“Pricing Disclosure Package”).
“Applicable Time” means 5:30 P.M. New York
City time, on September 17, 2020.
2. Purchase
of the Shares.
(a) The Company
agrees to issue and sell the Underwritten Shares to the several Underwriters as provided in this Agreement, and each Underwriter,
on the basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein,
agrees, severally and not jointly, to purchase at a price per share of $7.99 (the “Purchase Price”) from the Company
the respective number of Underwritten Shares set forth opposite such Underwriter’s name in Schedule 1 hereto.
In addition, the Company agrees to issue and sell the
Option Shares to the several Underwriters as provided in this Agreement, and each Underwriter, on the basis of the representations,
warranties and agreements set forth herein and subject to the conditions set forth herein, shall have the option to purchase, severally
and not jointly, from the Company the Option Shares at the Purchase Price less an amount per share equal to any dividends or distributions
declared by the Company and payable on the Underwritten Shares but not payable on the Option Shares.
If any Option Shares are to be purchased, the number of
Option Shares to be purchased by each Underwriter shall be the number of Option Shares which bears the same ratio to the aggregate
number of Option Shares being purchased as the number of Underwritten Shares set forth opposite the name of such Underwriter in
Schedule 1 hereto (or such number increased as set forth in Section 10 hereof) bears to the aggregate number of Underwritten Shares
being purchased from the Company by the several Underwriters, subject, however, to such adjustments to eliminate any fractional
Shares as the Representatives in their sole discretion shall make.
The Underwriters may exercise the option to purchase Option
Shares at any time in whole, or from time to time in part, on or before the thirtieth day following the date of the Prospectus,
by written notice from the Representatives to the Company. Such notice shall set forth the aggregate number of Option Shares as
to which the option is being exercised and the date and time when the Option Shares are to be delivered and paid for, which may
be the same date and time as the Closing Date (as hereinafter defined) but shall not be earlier than the Closing Date nor later
than the tenth full business day (as hereinafter defined) after the date of such notice (unless such time and date are postponed
in accordance with the provisions of Section 10 hereof). Any such notice shall be given at least two business days prior to the
date and time of delivery specified therein.
(b) The Company
understands that the Underwriters intend to make a public offering of the Shares, and initially to offer the Shares on the terms
set forth in the Pricing Disclosure Package. The Company acknowledges and agrees that the Underwriters may offer and sell Shares
to or through any affiliate of an Underwriter.
(c) Payment for
the Shares shall be made by wire transfer in immediately available funds to the account specified by the Company to the Representatives
in the case of the Underwritten Shares, at the offices of Davis Polk & Wardwell LLP, 450 Lexington Avenue, New York, New York
10017, at 10:00 A.M. New York City time on September 22, 2020, or at such other time or place on the same or such other date, not
later than the fifth business day thereafter, as the Representatives and the Company may agree upon in writing or, in the case
of the Option Shares, on the date and at the time and place specified by the Representatives in the written notice of the Underwriters’
election to purchase such Option Shares. The time and date of such payment for the Underwritten Shares is referred to herein as
the “Closing Date,” and the time and date for such payment for the Option Shares, if other than the Closing Date, is
herein referred to as the “Additional Closing Date”.
Payment for the Shares to be purchased on the Closing
Date or the Additional Closing Date, as the case may be, shall be made against delivery to the Representatives for the respective
accounts of the several Underwriters of the Shares to be purchased on such date registered in such names and in such denominations
as the Representatives shall request in writing not later than two full business days prior to the Closing Date or the Additional
Closing Date, as the case may be, with any transfer taxes payable in connection with the sale of such Shares duly paid by the Company.
Delivery of the Shares shall be made through the facilities of The Depository Trust Company (“DTC”) unless the Representatives
shall otherwise instruct.
(d) The Company
acknowledges and agrees that the Representatives and the other Underwriters are acting solely in the capacity of an arm’s
length contractual counterparty to the Company with respect to the offering of Shares contemplated hereby (including in connection
with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company or any
other person. Additionally, neither the Representatives nor any other Underwriter is advising the Company or any other person as
to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors
concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions
contemplated hereby, and neither the Representatives nor the other Underwriters shall have any responsibility or liability to the
Company with respect thereto. Any review by the Representatives and the other Underwriters of the Company, the transactions contemplated
hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not
be on behalf of the Company.
3. Representations
and Warranties of the Company. The Company represents and warrants to each Underwriter that:
(a) Preliminary
Prospectus. No order preventing or suspending the use of any Preliminary Prospectus has been issued by the Commission, and
each Preliminary Prospectus included in the Pricing Disclosure Package, at the time of filing thereof, complied in all material
respects with the Securities Act, and no Preliminary Prospectus, at the time of filing thereof, contained any untrue statement
of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading; provided that the Company makes no representation or warranty with respect to
any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the
Company in writing by such Underwriter through the Representatives expressly for use in any Preliminary Prospectus, it being understood
and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section
7(b) hereof.
(b) Pricing
Disclosure Package. The Pricing Disclosure Package as of the Applicable Time did not, and as of the Closing Date and as of
the Additional Closing Date, as the case may be, 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 light of the circumstances under which they were made, not misleading;
provided that the Company makes no representation or warranty with respect to any statements or omissions made in reliance
upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through
the Representatives expressly for use in such Pricing Disclosure Package, it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as such in Section 7(b) hereof. No statement of material fact
included in the Prospectus has been omitted from the Pricing Disclosure Package and no statement of material fact included in the
Pricing Disclosure Package that is required to be included in the Prospectus has been omitted therefrom.
(c) Issuer
Free Writing Prospectus. Other than the Registration Statement, the Preliminary Prospectus and the Prospectus, the Company
(including its agents and representatives, other than the Underwriters in their capacity as such) has not prepared, made, used,
authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication”
(as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Shares
other than any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the
Securities Act.
(d) Registration
Statement and Prospectus. The Registration Statement has been declared effective by the Commission. No order suspending the
effectiveness of the Registration Statement has been issued by the Commission, and, to the knowledge of the Company, no proceeding
for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Shares has
been initiated or threatened by the Commission; as of the applicable effective date of the Registration Statement and any post-effective
amendment thereto, the Registration Statement and any such post-effective amendment complied and will comply in all material respects
with the Securities Act, and 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 in order to make the statements therein not misleading; and as of the date of the Prospectus
and any amendment or supplement thereto and as of the Closing Date and as of the Additional Closing Date, as the case may be, the
Prospectus will comply in all material respects with the Securities Act and 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 light of the circumstances under which
they were made, not misleading; provided that the Company makes no representation or warranty with respect to any statements
or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing
by such Underwriter through the Representatives expressly for use in the Registration Statement and the Prospectus and any amendment
or supplement thereto, it being understood and agreed that the only such information furnished by any Underwriter consists of the
information described as such in Section 7(b) hereof.
(e) Incorporated
Documents. The documents incorporated by reference in the Registration Statement, the Prospectus and the Pricing Disclosure
Package, when they were filed with the Commission conformed in all material respects to the requirements of the Exchange Act, and
none of such documents contained any untrue statement of a material fact or omitted to state a material fact necessary to make
the statements therein, in light of the circumstances under which they were made, not misleading; and any further documents so
filed and incorporated by reference in the Registration Statement, the Prospectus or the Pricing Disclosure Package, when such
documents are filed with the Commission, will conform in all material respects to the requirements of the Exchange Act and will
not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading.
(f) Financial
Statements. The financial statements (including the related notes thereto) of the Company and its consolidated subsidiaries
included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus comply in
all material respects with the applicable requirements of the Securities Act and the Exchange Act, as applicable, and present fairly,
in all material respects, the financial position of the Company and its consolidated subsidiaries 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, and, in the case of unaudited interim financial statements, subject to normal year-end
audit adjustments and the exclusion of certain footnotes as permitted by the applicable rules of the Commission, and any supporting
schedules included or incorporated by reference in the Registration Statement present fairly, in all material respects, the information
required to be stated therein; the other financial information included or incorporated by reference in the Registration Statement,
the Pricing Disclosure Package and the Prospectus has been derived from the accounting records of the Company and its consolidated
subsidiaries and presents fairly, in all material respects, the information shown thereby; and all
disclosures included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus
regarding “non-GAAP financial measures” (as such term is defined by the rules and regulations of the Commission) comply
with Regulation G of the Exchange Act and Item 10 of Regulation S-K of the Securities Act, to the extent applicable.
(g) No
Material Adverse Change. Since the date of the most recent financial statements of the Company included or incorporated by
reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus, (i) there has not been any 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, the Pricing
Disclosure Package and the Prospectus), short-term debt or long-term debt of the Company or any of its subsidiaries, 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 involving 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 subsidiaries
taken as a whole; (ii) neither the Company nor any of its subsidiaries has entered into any transaction or agreement (whether or
not in the ordinary course of business) that is material to the Company and its subsidiaries taken as a whole or incurred any liability
or obligation, direct or contingent, that is material to the Company and its subsidiaries taken as a whole; and (iii) neither the
Company nor any of its subsidiaries has sustained any loss or interference with its business that is material to the Company and
its subsidiaries 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, the Pricing Disclosure Package and the Prospectus.
(h) Organization
and Good Standing. The Company and each of its subsidiaries 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, have a material adverse effect on the business, properties, management, financial position,
stockholders’ equity, results of operations or prospects of the Company and its subsidiaries taken as a whole or on the performance
by the Company of its obligations under this Agreement (a “Material Adverse Effect”).
(i) Capitalization.
The Company has an authorized capitalization as set forth in the Registration Statement, the Pricing Disclosure Package and the
Prospectus under the heading “Capitalization”; 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 validly waived; except as described in or expressly contemplated by the Registration Statement, the Pricing
Disclosure Package and 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 any of its subsidiaries, 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, the Pricing Disclosure Package and the Prospectus; and all the outstanding shares of capital
stock or other equity interests of each subsidiary owned, directly or indirectly, by the Company have been duly and validly authorized
and issued, are fully paid and non-assessable (except, in the case of any foreign subsidiary, for directors’ qualifying shares
and except as otherwise described in the Registration Statement, the Pricing Disclosure Package and the Prospectus,) 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.
(j) Stock
Options. With respect to the stock options (the “Stock Options”) granted pursuant to the stock-based compensation
plans of the Company and its subsidiaries (the “Company Stock Plans”), (i) to the knowledge of the Company, each Stock
Option intended to qualify as an “incentive stock option” under Section 422 of the Code so qualifies, (ii) 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
(the “Grant Date”) by all necessary corporate action, and, to the knowledge of the Company, the award agreement governing
such grant (if any) was duly executed and delivered by each party thereto, (iii) each such grant was made in accordance with the
terms of the Company Stock Plans, the Exchange Act and all other applicable laws and regulatory rules or requirements, including
the rules of the exchange on which the Company’s securities are traded, to the extent such rules were applicable at the time
of such grant, and (iv) each such grant was properly accounted for in accordance with GAAP in the financial statements (including
the related notes) of the Company and disclosed in the Company’s filings with the Commission in accordance with the Exchange
Act and all other applicable laws. The Company has not knowingly granted, and there is no and has been no policy or practice of
the Company of granting, Stock Options prior to, or otherwise coordinating the grant of Stock Options with, the release or other
public announcement of material information regarding the Company or its subsidiaries or their results of operations or prospects.
(k) 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.
(l) Underwriting
Agreement. This Agreement has been duly authorized, executed and delivered by the Company.
(m) The
Shares. The Shares to be issued and sold by the Company hereunder have been duly authorized by the Company 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, the Pricing Disclosure Package and the Prospectus;
and the issuance of the Shares is not subject to any preemptive or similar rights that have not been validly waived.
(n) Descriptions
of the Underwriting Agreement. This Agreement conforms in all material respects to the description thereof contained in the
Registration Statement, the Pricing Disclosure Package and the Prospectus.
(o) No
Violation or Default. Neither the Company nor any of its subsidiaries is (i) in violation of its charter or by-laws or
similar organizational documents; (ii) in default, and no event has occurred that, with notice or lapse of time or both, would
constitute such a default, in the due performance or observance of any term, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries is a party
or by which the Company or any of its subsidiaries is bound or to which any property or asset of the Company or any of its subsidiaries
is subject; or (iii) in violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or
governmental or regulatory authority, except, in the case of clauses (ii) and (iii) above, for any such default or violation that
would not, individually or in the aggregate, have a Material Adverse Effect.
(p) No
Conflicts. The execution, delivery and performance by the Company of this Agreement, the issuance and sale of the Shares and
the consummation of the transactions contemplated by this Agreement or the Pricing Disclosure Package and the Prospectus 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, result
in the termination, modification or acceleration of, or result in the creation or imposition of any lien, charge or encumbrance
upon any property, right or asset of the Company or any of its subsidiaries pursuant to, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries is bound or to which any property, right or asset of the Company or any of its subsidiaries is subject,
(ii) result in any violation of the provisions of the charter or by-laws or similar organizational documents of the Company or
any of its subsidiaries 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, except, in the case of clauses (i) and (iii) above, for any such conflict,
breach, violation, default, termination, modification, acceleration, lien, charge or encumbrance that would not, individually or
in the aggregate, have a Material Adverse Effect.
(q) 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 Shares and the consummation of the transactions contemplated by this Agreement, except for the registration
of the Shares under the Securities Act and such consents, approvals, authorizations, orders and registrations or qualifications
as have already been obtained or made or as may be required by the Financial Industry Regulatory Authority, Inc. (“FINRA”)
or The NASDAQ Capital Market and under applicable state securities laws in connection with the purchase and distribution of the
Shares by the Underwriters.
(r) Legal
Proceedings. Except as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, there are
no legal, governmental or regulatory actions, demands, claims, suits, arbitrations or proceedings, or to the knowledge of the Company
investigations or inquiries (collectively, “Actions”), pending to which the Company or any of its subsidiaries is a
party or to which any property of the Company or any of its subsidiaries is the subject that, individually or in the aggregate,
if determined adversely to the Company or any of its subsidiaries, 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, the Pricing Disclosure Package or the Prospectus that are not so described in the Registration Statement,
the Pricing Disclosure Package and the Prospectus and (ii) there are no statutes, regulations, 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,
the Pricing Disclosure Package or the Prospectus that are not so filed as exhibits to the Registration Statement or described in
the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(s) Independent
Accountants. Horne LLP, which has certified certain financial statements of the Company and its subsidiaries, is an independent
registered public accounting firm with respect to the Company and its subsidiaries 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.
(t) Title
to Real and Personal Property. Except as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus,
the Company and its subsidiaries have valid rights to lease or otherwise use, all items of real and personal property that are
material to the respective businesses of the Company and its subsidiaries 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 subsidiaries or (ii) would not reasonably be expected, individually
or in the aggregate, to have a Material Adverse Effect.
(u) Intellectual
Property. (i) The Company and its subsidiaries own or have the right to use all patents, patent applications, trademarks, service
marks, trade names, trademark registrations, service mark registrations, domain names and other source indicators, copyrights and
copyrightable works, know-how, trade secrets, systems, procedures, proprietary or confidential information and all other worldwide
intellectual property, industrial property and proprietary and similar rights, and all registrations and applications for registration
of, and all goodwill associated with, any of the foregoing (collectively, “Intellectual Property”) used in or necessary
for the conduct of their respective businesses as currently conducted and as proposed to be conducted in the Registration Statement,
the Pricing Disclosure Package and the Prospectus; (ii) to the Company’s knowledge, the Company’s and its subsidiaries’
conduct of their respective businesses as currently conducted or proposed to be conduted as described in the Registration Statement,
the Pricing Disclosure Package and the Prospectus does not and will not infringe, misappropriate or otherwise violate, and has
not infringed, misappropriated or otherwise violated, any Intellectual Property of any third party; (iii) the Company and its subsidiaries
have not received any written notice of any claim of infringement, misappropriation or other violation of any Intellectual Property
of any third party, or any notice challenging the ownership, validity, or enforceability of any Intellectual Property of the Company
or any of its subsidiaries; and (iv) to the knowledge of the Company, the Intellectual Property of the Company and its subsidiaries
is valid and enforceable, is owned free and clear of all liens, encumbrances, defects and other restrictions by, or licensed or
co-licensed to, the Company or its subsidiaries and to the knowledge of the Company, no third party has infringed, misappropriated
or otherwise violated any Intellectual Property owned by or exclusively or co-exclusively licensed to the Company or any of its
subsidiaries. The Company and its subsidiaries have at all times taken reasonable steps in accordance with normal industry practice
to maintain the confidentiality of all Intellectual Property, including requiring employees, contractors, consultants and other
third parties who receive such Intellectual Property to execute appropriate confidentiality agreements. To the knowledge of the
Company, all current and former employees and consultants and other parties involved in the development of Intellectual Property
for the Company or its subsidiaries have signed agreements with the Company or its subsidiaries, pursuant to which the Company
or its subsidiaries either (A) have obtained, or have the right or option to obtain, ownership of and are the exclusive owners
of such Intellectual Property, or (B) have obtained a valid right to exploit such Intellectual Property, sufficient for the conduct
of their respective businesses as currently conducted or as proposed to be conducted in the Registration Statement, the Pricing
Disclosure Package or the Prospectus.
(v) No
Undisclosed Relationships. No relationship, direct or indirect, exists between or among the Company or any of its subsidiaries,
on the one hand, and the directors, officers, stockholders, customers or suppliers of the Company or any of its subsidiaries, on
the other, that is required by the Securities Act to be described in the Registration Statement and the Prospectus and that is
not so described in such documents and in the Pricing Disclosure Package.
(w) Investment
Company Act. The Company is not and, immediately after giving effect to the offering and sale of the Shares and the application
of the proceeds thereof as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, will not
be required to register as 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”).
(x) Taxes.
The Company and its subsidiaries have filed all United States federal income tax returns required by law to be filed (taking into
account any timely requested extensions thereof) through the date hereof and, except to the extent the failure to file would not,
individually or in the aggregate, have a Material Adverse Effect, all other state, local and foreign tax returns required by law
to be filed (taking into account any timely requested extensions thereof) through the date hereof; the Company and its subsidiaries
have paid all federal, state, local and foreign taxes due, except for taxes being contested in good faith and for which adequate
reserves in accordance with GAAP have been taken, and except as would not, individually or in the aggregate, have a Material Adverse
Effect; and except as otherwise disclosed in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus,
there is no tax deficiency that has been, or would reasonably be expected to be, asserted against the Company or any of its subsidiaries
or any of their respective properties or assets, except as would not, individually or in the aggregate, have a Material Adverse
Effect.
(y) Licenses
and Permits. The Company and its subsidiaries 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 currently conducted, as described in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus,
except where the failure to possess or make the same would not, individually or in the aggregate, have a Material Adverse Effect;
and except as described in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus, neither the Company
nor any of its subsidiaries 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, except where such revocation, modification, or non-renewal would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect.
(z) No
Labor Disputes. No labor disturbance by or dispute with employees of the Company or any of its subsidiaries exists or, to the
knowledge of the Company, is contemplated or threatened. Neither the Company nor any of its subsidiaries has received any notice
of cancellation or termination with respect to any collective bargaining agreement to which it is a party.
(aa) Certain Environmental Matters.
(i) The Company and its subsidiaries (x) are in compliance with all, and have not violated any, 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, and have not violated any, 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;
(ii) there are no costs or liabilities associated with Environmental Laws of or relating to the Company or its subsidiaries, 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 each of the Pricing Disclosure Package and the Prospectus,
(x) there is no proceeding that is pending, or that is known to be contemplated, against the Company or any of its subsidiaries
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 subsidiaries 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 subsidiaries, and (z) none of the Company
or its subsidiaries anticipates material capital expenditures relating to any Environmental Laws.
(bb) 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”)) would have 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 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 so qualified, and nothing has occurred, whether by action or by failure to
act, which would 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 Controlled Group affiliates in the current fiscal year of the Company and its Controlled Group affiliates compared to the
amount of such contributions made in the Company’s and its Controlled Group affiliates’ most recently completed fiscal
year; or (B) a material increase in the Company and its subsidiaries’ “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 subsidiaries’ 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.
(cc) Disclosure Controls. Except as
described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, the Company and its subsidiaries 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. The Company and its subsidiaries have carried out evaluations of the effectiveness of their disclosure controls
and procedures as required by Rule 13a-15 of the Exchange Act.
(dd) Accounting Controls. Except as
described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, the Company and its subsidiaries maintain
systems of “internal control over financial reporting” (as defined in Rule 13a-15(f) of the Exchange Act) that 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. Except as described
in the Registration Statement, the Pricing Disclosure Package and the Prospectus, the Company and its subsidiaries 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. To the Company’s knowledge, 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) 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. Except as described in the Registration Statement, the Pricing Disclosure Package and
the Prospectus, there are no material weaknesses in the Company’s internal control over financial reporting.
(ee) eXtensible Business Reporting Language.
The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement
fairly presents the information called for in all material respects and has been prepared in accordance with the Commission’s
rules and guidelines applicable thereto.
(ff) Insurance. Except as disclosed
in the Registration Statement, the Pricing Disclosure Package and the Prospectus, the Company and its subsidiaries have insurance
covering their respective properties, operations, personnel and businesses, which insurance is in amounts and insures against such
losses and risks as the Company reasonably believes are adequate to protect the Company and its subsidiaries and their respective
businesses taken as a whole; and neither the Company nor any of its subsidiaries (i) has 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) believes 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.
(gg) Cybersecurity; Data Protection. (i)
Except as would not reasonably be expected to have a Material Adverse Effect, the Company and its subsidiaries’ information
technology assets and equipment, computers, systems, networks, hardware, software, websites, applications, and databases (collectively,
“IT Systems”) are adequate for, and operate and perform as required in connection with the operation of the business
of the Company and its subsidiaries as currently conducted, free and clear of all material bugs, errors, defects, Trojan horses,
time bombs, malware and other corruptants; (ii) the Company and its subsidiaries have implemented and maintained or are in the
process of implementing commercially reasonable controls, policies, procedures, and safeguards to maintain and protect their material
confidential information and the integrity, continuous operation, redundancy and security of all IT Systems and data (including
all personal, personally identifiable, sensitive, confidential or regulated data (“Personal Data”)) used in connection
with the operation of the business of the Company and its subsidiaries as currently conducted; (iii) except as would not reasonably
be expected to have a Material Adverse Effect, there have been no breaches, violations, outages or unauthorized uses of or accesses
to same, except for those that have been remedied without material cost or liability or the duty to notify any other person, nor
any incidents under internal review or investigations relating to the same; and (iv) except as would not reasonably be expected
to have a Material Adverse Effect, the Company and its subsidiaries are presently in compliance with all applicable laws or statutes
and all judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority, internal policies
and contractual obligations relating to the privacy and security of IT Systems and Personal Data and to the protection of such
IT Systems and Personal Data from unauthorized use, access, misappropriation or modification.
(hh) No Unlawful Payments. Neither
the Company nor any of its subsidiaries nor any director, officer or employee of the Company or any of its subsidiaries nor, to
the knowledge of the Company, any agent, affiliate or other person associated with or acting on behalf of the Company or any of
its subsidiaries 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 unlawful rebate, payoff, influence payment, kickback or other unlawful or improper payment or benefit. The Company and its
subsidiaries 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 subsidiaries are and have been conducted at all times
in compliance with applicable financial recordkeeping and reporting requirements, including those of the Currency and Foreign Transactions
Reporting Act of 1970, as amended, the applicable money laundering statutes of all jurisdictions where the Company or any of its
subsidiaries conducts business, the rules and regulations thereunder and any related or similar rules or regulations issued, administered
or enforced by any governmental agency in the jurisdictions where the Company or any of its subsidiaries conducts business (including
clinical trials) (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 any of its subsidiaries 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 any of its subsidiaries, directors, officers, or employees, nor, to the knowledge of the Company, any
agent, affiliate or other person acting on behalf of the Company or any of its subsidiaries 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, or the
European Union, Her Majesty’s Treasury or other relevant sanctions authority (collectively, “Sanctions”), nor
is the Company or any of its subsidiaries located, organized or resident in a country or territory that is the subject or target
of Sanctions, including, without limitation, Crimea, 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 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 subsidiaries 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 Restrictions on Subsidiaries.
No subsidiary of the Company is 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.
(ll) No Broker’s Fees. Except
as disclosed to the Underwriters, neither the Company nor any of its subsidiaries 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 any of them or any Underwriter for a
brokerage commission, finder’s fee or like payment in connection with the offering and sale of the Shares.
(mm) No Registration Rights. Except
as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, no person has the right to require
the Company or any of its subsidiaries to register any securities for sale under the Securities Act by reason of the filing of
the Registration Statement with the Commission or the issuance and sale of the Shares, other than rights that have been validly
waived.
(nn) No Stabilization. Neither the
Company nor any of its subsidiaries or affiliates has 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 Shares.
(oo) Margin
Rules. The application of the proceeds received by the Company from the issuance, sale and delivery of the Shares as described
in the Registration Statement, the Pricing Disclosure Package and the Prospectus will not 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
or incorporated by reference in any of the Registration Statement, the Pricing Disclosure Package 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 or incorporated by reference in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus
is not based on or derived from sources that are reliable and accurate in all material respects.
(rr) Clinical Trials. Except in each
case as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus: (1) the clinical and pre-clinical
trials conducted by or on behalf of or sponsored by the Company or any of its subsidiaries, or in which the Company or any of its
subsidiaries has participated, that are described in the Registration Statement, the Pricing Disclosure Package and the Prospectus,
or the results of which are referred to in the Registration Statement, the Pricing Disclosure Package and the Prospectus, as applicable,
were, and if still pending are, being conducted in accordance in all material respects with standard medical and scientific research
standards and all applicable statutes, rules and regulations of the FDA and other applicable regulatory authorities (collectively,
the “Regulatory Authorities”) and current Good Clinical Practices and Good Laboratory Practices; (2) the descriptions
in the Registration Statement, the Pricing Disclosure Package and the Prospectus of the results of such studies and tests are accurate
and complete and fairly present in all material respects the data derived from such trials; (3) neither the Company nor any of
its subsidiaries has any knowledge of any other trials, the results of which are inconsistent with or call into question the results
described or referred to in the Registration Statement, the Pricing Disclosure Package or the Prospectus; (4) the Company and each
of its subsidiaries 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 (5) neither the Company nor any of its subsidiaries has received any written
notices, correspondence or other communications from the Regulatory Authorities or any other governmental agency requiring or threatening
the termination, material modification or suspension of any clinical or pre-clinical trials that are described in the Registration
Statement, the Pricing Disclosure Package and the Prospectus or the results of which are referred to in the Registration Statement,
the Pricing Disclosure Package and the Prospectus, and, to the best knowledge of the Company and its subsidiaries, there are no
reasonable grounds for the same.
(ss) Regulatory Filings. Except in
each case as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, (1) neither the Company
nor any of its subsidiaries has failed to file with the applicable Regulatory Authorities any required filing, declaration, listing,
registration, report or submission with respect to the Company’s product candidates that are described in or incorporated
by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus; (2) all such filings, declarations,
listings, registrations, reports or submissions were in compliance with applicable laws when filed; and (3) no material 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.
(tt) Sarbanes-Oxley Act. There is
and has been no failure in any material respect on the part of the Company or, to the knowledge of the Company, any of the Company’s
directors or officers, in their capacities as such, to comply with any applicable 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 and Sections 302 and 906 related to certifications.
(uu) Payment of Registration Fees under
the Securities Act. The Company has paid the registration fee for this offering pursuant to the Securities Act or will pay
such fee within the time period required by such Act and the applicable rules promulgated thereunder and in any event prior to
the Closing Date.
(vv) No Ratings. There are (and prior
to the Closing Date, will be) no debt securities, convertible securities or preferred stock issued or guaranteed by the Company
or any of its subsidiaries that are rated by a “nationally recognized statistical rating organization”, as such term
is defined in Section 3(a)(62) under the Exchange Act.
4. Further
Agreements of the Company. The Company covenants and agrees with each Underwriter that:
(a) Required
Filings. The Company will file the final Prospectus with the Commission within the time periods specified by Rule 424(b) and
Rule 430A, 430B or 430C under the Securities Act; and the Company will furnish copies of the Prospectus (to the extent not previously
delivered) to the Underwriters in New York City prior to 10:00 A.M., New York City time, on the second business day succeeding
the date of this Agreement in such quantities as the Representatives may reasonably request.
(b) Delivery
of Copies. The Company will deliver, without charge and upon reasonable request, (i) to the Representatives, two conformed
copies of the Registration Statement as originally filed and each amendment thereto, in each case including all exhibits and consents
filed therewith and documents incorporated by reference therein; and (ii) to each Underwriter (A) a conformed copy of the Registration
Statement as originally filed and each amendment thereto (without exhibits) and (B) during the Prospectus Delivery Period (as defined
below), as many copies of the Prospectus (including all amendments and supplements thereto and documents incorporated by reference
therein) as the Representatives may reasonably request. As used herein, the term “Prospectus Delivery Period” means
such period of time after the first date of the public offering of the Shares as in the opinion of counsel for the Underwriters
a prospectus relating to the Shares is required by law to be delivered (or required to be delivered but for Rule 172 under the
Securities Act) in connection with sales of the Shares by any Underwriter or dealer.
(c) Amendments
or Supplements. Before making, preparing, using, authorizing, approving, referring to or filing any amendment or supplement
to the Registration Statement, the Pricing Disclosure Package or the Prospectus, whether before or after the time that the Registration
Statement becomes effective, the Company will furnish to the Representatives and counsel for the Underwriters a copy of the proposed
amendment or supplement for review and will not use or file any such proposed amendment or supplement to which the Representatives
reasonably and timely object. For so long as the Company is an “ineligible issuer” as defined in Rule 405 of the Securities
Act, the Company will not use or refer to any free writing prospectus as defined in Rule 405 of the Securities Act.
(d) Notice
to the Representatives. The Company will advise the Representatives promptly, and confirm such advice in writing (which may
be by electronic mail), (i) when the Registration Statement has become effective; (ii) when any amendment to the Registration Statement
has been filed or becomes effective; (iii) when any supplement to the Pricing Disclosure Package, the Prospectus or any amendment
to the Prospectus has been filed or distributed; (iv) of any request by the Commission for any amendment to the Registration Statement
or any amendment or supplement to the Prospectus or the receipt of any comments from the Commission relating to the Registration
Statement or any other request by the Commission for any additional information; (v) of the issuance by the Commission or any other
governmental or regulatory authority of any order suspending the effectiveness of the Registration Statement or preventing or suspending
the use of any Preliminary Prospectus, any of the Pricing Disclosure Package, the Prospectus or the initiation or threatening of
any proceeding for that purpose or pursuant to Section 8A of the Securities Act; (vi) of the occurrence of any event or development
within the Prospectus Delivery Period as a result of which the Prospectus or any of the Pricing Disclosure Package, as then amended
or supplemented, would include any untrue statement of a material fact or omit to state a material fact necessary in order to make
the statements therein, in light of the circumstances existing when the Prospectus or the Pricing Disclosure Package is delivered
to a purchaser, not misleading; and (vii) of the receipt by the Company of any notice with respect to any suspension of the qualification
of the Shares for offer and sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and the
Company will use its reasonable efforts to prevent the issuance of any such order suspending the effectiveness of the Registration
Statement, preventing or suspending the use of any Preliminary Prospectus, any of the Pricing Disclosure Package or the Prospectus
or suspending any such qualification of the Shares and, if any such order is issued, will seek to obtain as soon as possible the
withdrawal thereof.
(e) Ongoing
Compliance. (1) If during the Prospectus Delivery Period (i) any event or development shall occur or condition shall exist
as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements therein, in light of the circumstances existing when the Prospectus
is delivered to a purchaser, not misleading or (ii) it is necessary to amend or supplement the Prospectus to comply with law, the
Company will promptly notify the Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file with the
Commission and furnish to the Underwriters and to such dealers as the Representatives may designate such amendments or supplements
to the Prospectus (or any document to be filed with the Commission and incorporated by reference therein) as may be necessary so
that the statements in the Prospectus as so amended or supplemented (or any document to be filed with the Commission and incorporated
by reference therein) will not, in light of the circumstances existing when the Prospectus is delivered to a purchaser, be misleading
or so that the Prospectus will comply with law and (2) if at any time prior to the Closing Date (i) any event or development shall
occur or condition shall exist as a result of which the Pricing Disclosure Package as then amended or supplemented would include
any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in
light of the circumstances existing when the Pricing Disclosure Package is delivered to a purchaser, not misleading or (ii) it
is necessary to amend or supplement the Pricing Disclosure Package to comply with law, the Company will promptly notify the Underwriters
thereof and forthwith prepare and, subject to paragraph (c) above, file with the Commission (to the extent required) and furnish
to the Underwriters and to such dealers as the Representatives may designate such amendments or supplements to the Pricing Disclosure
Package (or any document to be filed with the Commission and incorporated by reference therein) as may be necessary so that the
statements in the Pricing Disclosure Package as so amended or supplemented will not, in light of the circumstances existing when
the Pricing Disclosure Package is delivered to a purchaser, be misleading or so that the Pricing Disclosure Package will comply
with law.
(f) Blue
Sky Compliance. The Company will qualify the Shares for offer and sale under the securities or Blue Sky laws of such jurisdictions
as the Representatives shall reasonably request and will continue such qualifications in effect so long as required for distribution
of the Shares; provided that the Company shall not be required to (i) qualify as a foreign corporation or other entity or
as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, (ii) file any general
consent to service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not
otherwise so subject.
(g) Earning
Statement. The Company will make generally available to its security holders and the Representatives as soon as reasonably
practicable an earning statement that satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 of the Commission
promulgated thereunder covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring
after the “effective date” (as defined in Rule 158) of the Registration Statement; provided that the Company will be
deemed to have furnished such statements to its security holders and the Representatives to the extent they are filed on the Commission’s
Electronic Data Gathering, Analysis and Retrieval system, or any successor system (“EDGAR”).
(h) Clear
Market. For a period of 90 days after the date of the Prospectus, the Company will not (i) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase,
lend, or otherwise transfer or dispose of, directly or indirectly, or submit to, or file with, the Commission a registration statement
under the Securities Act relating to, any shares of Stock or any securities convertible into or exercisable or exchangeable for
Stock, or publicly disclose the intention to undertake any of the foregoing, or (ii) enter into any swap or other agreement that
transfers, in whole or in part, any of the economic consequences of ownership of the Stock or any such other securities, whether
any such transaction described in clause (i) or (ii) above is to be settled by delivery of Stock or such other securities, in cash
or otherwise, without the prior written consent of J.P. Morgan Securities LLC and Jefferies LLC, other than the Shares to be sold
hereunder.
The restrictions described above do not apply
to (i) the issuance of shares of Stock or securities convertible into or exercisable for shares of Stock pursuant to the conversion
or exchange of convertible or exchangeable securities or the exercise of warrants or options (including net exercise) or the settlement
of RSUs (including net settlement), in each case outstanding on the date of this Agreement and described in the Prospectus; (ii)
grants of stock options, stock awards, restricted stock, RSUs, or other equity awards and the issuance of shares of Stock or securities
convertible into or exercisable or exchangeable for shares of Stock (whether upon the exercise of stock options or otherwise) to
the Company’s employees, officers, directors, advisors, or consultants pursuant to the terms of an equity compensation plan
in effect as of the Closing Date and described in the Prospectus; (iii) the filing of any registration statement on Form S-8 relating
to securities granted or to be granted pursuant to any plan in effect on the date of this Agreement and described in the Prospectus
or any assumed benefit plan pursuant to an acquisition or similar strategic transaction; (iv) the issuance of shares of Stock or
securities convertible into or exchangeable for shares of Stock in connection with a bona fide acquisition, licensing or
other strategic transaction entered into after the Effective Date of this Agreement, provided (1) that the aggregate number of
shares issued pursuant to this clause (iv) shall not exceed ten percent (10%) of the total number of outstanding shares of Stock
immediately following the issuance and sale of the Underwritten Shares pursuant hereto and (2) each recipient of such shares pursuant
to this clause (iv) shall have executed and delivered to the Representatives, on or prior to the issuance of such shares, a lock-up
letter on the same terms as the lock-up agreement referred to in Section 6(l) hereof; or (v) the filing of a post-effective amendment
on Form S-3 to the Company’s effective Registration Statement on Form S-1 (Reg. No. 333-239161) with no additional securities
to be added to such filing.
(i) Use
of Proceeds. The Company will apply the net proceeds from the sale of the Shares as described in each of the Registration Statement,
the Pricing Disclosure Package and the Prospectus under the heading “Use of proceeds”.
(j) No
Stabilization. Neither the Company nor its subsidiaries or affiliates will take, 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 Stock.
(k) Exchange
Listing. The Company will use its best efforts to list, subject to notice of issuance, the Shares on The NASDAQ Capital Market.
(l) Reports.
During a period of two years from the date hereof, the Company will furnish to the Representatives, as soon as they are available,
copies of all reports or other communications (financial or other) furnished to holders of the Shares, and copies of any reports
and financial statements furnished to or filed with the Commission or any national securities exchange or automatic quotation system;
provided the Company will be deemed to have furnished such reports and financial statements to the Representatives to the
extent they are filed on EDGAR.
5. Certain
Agreements of the Underwriters. Each Underwriter hereby represents and agrees that:
(a) It
has not used, authorized use of, referred to or participated in the planning for use of, and will not use, authorize use of, refer
to or participate in the planning for use of, any “free writing prospectus”, as defined in Rule 405 under the Securities
Act or take any action that would result in the Company being required to file with the Commission under Rule 433(d) a free writing
prospectus prepared by or on behalf of such Underwriter that otherwise would not be required to be filed by the Company thereunder,
but for the action of the Underwriter.
(b) It
is not subject to any pending proceeding under Section 8A of the Securities Act with respect to the offering (and will promptly
notify the Company if any such proceeding against it is initiated during the Prospectus Delivery Period).
6. Conditions
of Underwriters’ Obligations. The obligation of each Underwriter to purchase the Underwritten Shares on the Closing Date
or the Option Shares on the Additional Closing Date, as the case may be, as provided herein is subject to the performance by the
Company of its covenants and other obligations hereunder and to the following additional conditions:
(a) Registration
Compliance; No Stop Order. No order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding
for such purpose or pursuant to Section 8A under the Securities Act shall be pending before or threatened by the Commission; the
Prospectus shall have been timely filed with the Commission under the Securities Act and in accordance with Section 4(a) hereof;
and all requests by the Commission for additional information shall have been complied with to the reasonable satisfaction of the
Representatives.
(b) Representations
and Warranties. The representations and warranties of the Company contained herein shall be true and correct on the date hereof
and on and as of the Closing Date or the Additional Closing Date, as the case may be; and the statements of the Company and its
officers made in any certificates delivered pursuant to this Agreement shall be true and correct on and as of the Closing Date
or the Additional Closing Date, as the case may be.
(c) No
Material Adverse Change. No event or condition of a type described in Section 3(g) hereof shall have occurred or shall exist,
which event or condition is not described in the Pricing Disclosure Package (excluding any amendment or supplement thereto) and
the Prospectus (excluding any amendment or supplement thereto) and the effect of which in the judgment of the Representatives makes
it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares on the Closing Date or the Additional
Closing Date, as the case may be, on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package
and the Prospectus.
(d) Officer’s
Certificate. The Representatives shall have received on and as of the Closing Date or the Additional Closing Date, as the case
may be, a certificate of the chief financial officer or chief accounting officer of the Company and one additional senior executive
officer of the Company who is reasonably satisfactory to the Representatives (i) confirming that such officers have carefully reviewed
the Registration Statement, the Pricing Disclosure Package and the Prospectus and, to the knowledge of such officers, the representations
set forth in Sections 3(b) and 3(d) hereof are true and correct, (ii) confirming that the other representations and warranties
of the Company in this Agreement are true and correct and that the Company has in all material respects complied with all agreements
and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date or the Additional
Closing Date, as the case may be, and (iii) to the effect set forth in paragraphs (a) and (c) above.
(e) Comfort
Letters. (i) On the date of this Agreement and on the Closing Date or the Additional Closing Date, as the case may be, Horne
LLP shall have furnished to the Representatives, at the request of the Company, letters, dated the respective dates of delivery
thereof and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, containing statements
and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect
to the financial statements and certain financial information contained or incorporated by reference in each of the Registration
Statement, the Pricing Disclosure Package and the Prospectus; provided, that the letter delivered on the Closing Date or the Additional
Closing Date, as the case may be, shall use a “cut-off” date no more than three business days prior to such Closing
Date or such Additional Closing Date, as the case may be.
(ii) On the date of this Agreement and on the
Closing Date or the Additional Closing Date, as the case may be, the Company shall have furnished to the Representatives a certificate,
dated the respective dates of delivery thereof and addressed to the Underwriters, of its chief financial officer with respect to
certain financial data contained in the Pricing Disclosure Package and the Prospectus, providing “management comfort”
with respect to such information, in form and substance reasonably satisfactory to the Representatives.
(f) Opinion
and 10b-5 Statement of Counsel for the Company. Polsinelli PC, counsel for the Company, shall have furnished to the Representatives,
at the request of the Company, their written opinion and 10b-5 statement, dated the Closing Date or the Additional Closing Date,
as the case may be, and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, to
the effect set forth in Annex B hereto.
(g) Opinion
of Intellectual Property Counsel for the Company. Pearl Cohen Zedek Latzer Baratz LLP, intellectual property counsel for the
Company, shall have furnished to the Representatives, at the request of the Company, their written opinion and negative assurance
statement, dated the Closing Date or the Additional Closing Date, as the case may be, and addressed to the Underwriters, in form
and substance reasonably satisfactory to the Representatives, to the effect set forth in Annex C hereto.
(h) Opinion
and 10b-5 Statement of Counsel for the Underwriters. The Representatives shall have received on and as of the Closing Date
or the Additional Closing Date, as the case may be, an opinion and 10b-5 statement, addressed to the Underwriters, of Davis Polk
& Wardwell LLP, counsel for the Underwriters, with respect to such matters as the Representatives may reasonably request, and
such counsel shall have received such documents and information as they may reasonably request to enable them to pass upon such
matters.
(i) No
Legal Impediment to Issuance and Sale. No action shall have been taken and no statute, rule, regulation or order shall have
been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing
Date or the Additional Closing Date, as the case may be, prevent the issuance or sale of the Shares; and no injunction or order
of any federal, state or foreign court shall have been issued that would, as of the Closing Date or the Additional Closing Date,
as the case may be, prevent the issuance or sale of the Shares.
(j) Good
Standing. The Representatives shall have received on and as of the Closing Date or the Additional Closing Date, as the case
may be, satisfactory evidence of the good standing of the Company in the state of Delaware and its good standing as a foreign corporation
in California, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities
of such jurisdictions.
(k) Exchange
Listing. The Shares to be delivered on the Closing Date or the Additional Closing Date, as the case may be, shall have been
approved for listing on the NASDAQ Capital Market, subject to official notice of issuance.
(l) Lock-up
Agreements. The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between you and certain
shareholders, officers and directors of the Company relating to sales and certain other dispositions of shares of Stock or certain
other securities, delivered to you on or before the date hereof, shall be full force and effect on the Closing Date or the Additional
Closing Date, as the case may be.
(m) Additional
Documents. On or prior to the Closing Date or the Additional Closing Date, as the case may be, the Company shall have furnished
to the Representatives such further certificates and documents as the Representatives may reasonably request.
All opinions, letters, certificates and evidence mentioned
above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and
substance reasonably satisfactory to counsel for the Underwriters.
7. Indemnification
and Contribution.
(a) Indemnification
of the Underwriters. The Company agrees to indemnify and hold harmless each Underwriter, its affiliates, directors and officers
and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, reasonable
legal fees and other reasonable expenses incurred in connection with any suit, action or proceeding or any claim asserted, as such
fees and expenses are incurred), joint or several, that arise out of, or are based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or caused by 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 (ii) any
untrue statement or alleged untrue statement of a material fact contained in the Prospectus (or any amendment or supplement thereto),
any Preliminary Prospectus, any free writing prospectus as defined in Rule 405, any “issuer information” filed or required
to be filed pursuant to Rule 433(d) under the Securities Act, any road show as defined in Rule 433(h) under the Securities Act
together with any communication that is provided or transmitted simultaneously with such road show in a manner designed to make
such communication available as part of such road show (a “road show”) or any Pricing Disclosure Package (including
any Pricing Disclosure Package that has subsequently been amended), or caused by 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, in each case except insofar as such losses, claims, damages or liabilities arise out of, or are based upon, any untrue
statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating
to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use therein,
it being understood and agreed that the only such information furnished by any Underwriter consists of the information described
as such in paragraph (b) below.
(b) Indemnification
of the Company. Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors,
its officers who signed the Registration Statement and each person, if any, who controls the Company within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the indemnity set forth in paragraph (a) above,
but only with respect to any losses, claims, damages or liabilities that arise out of, or are based upon, any untrue statement
or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to such
Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Registration
Statement, the Prospectus (or any amendment or supplement thereto), any Preliminary Prospectus, any free writing prospectus as
defined in Rule 405, any road show or any Pricing Disclosure Package (including any Pricing Disclosure Package that has subsequently
been amended), it being understood and agreed upon that the only such information furnished by any Underwriter consists of the
following information in the Prospectus furnished on behalf of each Underwriter: the concession and reallowance figures appearing
in the third paragraph under the caption “Underwriting”, the information contained in the fifteenth and sixteenth paragraph
under the caption “Underwriting” relating to price stabilizing transactions.
(c) Notice
and Procedures. If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand shall
be brought or asserted against any person in respect of which indemnification may be sought pursuant to the preceding paragraphs
of this Section 7, such person (the “Indemnified Person”) shall promptly notify the person against whom such indemnification
may be sought (the “Indemnifying Person”) in writing; provided that the failure to notify the Indemnifying Person
shall not relieve it from any liability that it may have under the preceding paragraphs of this Section 7 except to the extent
that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided,
further, that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have to
an Indemnified Person otherwise than under the preceding paragraphs of this Section 7. If any such proceeding shall be brought
or asserted against an Indemnified Person and it shall have notified the Indemnifying Person thereof, the Indemnifying Person shall
retain counsel reasonably satisfactory to the Indemnified Person (who shall not, without the consent of the Indemnified Person,
be counsel to the Indemnifying Person) to represent the Indemnified Person and any others entitled to indemnification pursuant
to this Section that the Indemnifying Person may designate in such proceeding and shall pay the reasonable fees and expenses in
such proceeding and shall pay the reasonable fees and expenses of such counsel related to such proceeding, as incurred. In any
such proceeding, any Indemnified Person shall have the right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually
agreed to the contrary; (ii) the Indemnifying Person has failed within a reasonable time to retain counsel reasonably satisfactory
to the Indemnified Person; (iii) the Indemnified Person shall have reasonably concluded that there may be legal defenses available
to it that are different from or in addition to those available to the Indemnifying Person; or (iv) the named parties in any such
proceeding (including any impleaded parties) include both the Indemnifying Person and the Indemnified Person and representation
of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood
and agreed that the Indemnifying Person shall not, in connection with any proceeding or related proceeding in the same jurisdiction,
be liable for the fees and
expenses of more than one separate firm (in addition to any local counsel) for all Indemnified Persons,
and that all such reasonable and documented fees and expenses shall be paid or reimbursed as they are incurred upon receipt from
the Indemnified Person of a written request for payment thereof accompanied. Any such separate firm for any Underwriter, its affiliates,
directors and officers and any control persons of such Underwriter shall be designated in writing by J.P. Morgan Securities LLC
and Jefferies LLC and any such separate firm for the Company, its directors, its officers who signed the Registration Statement
and any control persons of the Company shall be designated in writing by the Company. The Indemnifying Person shall not be liable
for any settlement of any proceeding effected without its written consent, but if settled with such consent, the Indemnifying Person
agrees to indemnify each Indemnified Person from and against any loss or liability by reason of such settlement. Notwithstanding
the foregoing sentence, if at any time an Indemnified Person shall have requested that an Indemnifying Person reimburse the Indemnified
Person for fees and expenses of counsel as contemplated by this paragraph, the Indemnifying Person shall be liable for any settlement
of any proceeding effected without its written consent if (i) such settlement is entered into (A) more than 60 days after receipt
by the Indemnifying Person of such request and (B) more than 30 days after receipt by the Indemnifying Person of the proposed terms
of such settlement and (ii) the Indemnifying Person shall not have reimbursed the Indemnified Person in accordance with such request
prior to the date of such settlement. No Indemnifying Person shall, without the written consent of the Indemnified Person, effect
any settlement of any pending or threatened proceeding in respect of which any Indemnified Person is or could have been a party
and indemnification could have been sought hereunder by such Indemnified Person, unless such settlement (x) includes an unconditional
release of such Indemnified Person, in form and substance reasonably satisfactory to such Indemnified Person, from all liability
on claims that are the subject matter of such proceeding and (y) does not include any statement as to or any admission of fault,
culpability or a failure to act by or on behalf of any Indemnified Person.
(d) Contribution.
If the indemnification provided for in paragraphs (a) or (b) above is unavailable to an Indemnified Person or insufficient in respect
of any losses, claims, damages or liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu
of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by such Indemnified Person as
a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits
received by the Company, on the one hand, and the Underwriters on the other, from the offering of the Shares or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) but also the relative fault of the Company, on the one hand, and the Underwriters on the other,
in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Company, on the one hand, and the Underwriters on the
other, shall be deemed to be in the same respective proportions as the net proceeds (before deducting expenses) received by the
Company from the sale of the Shares and the total underwriting discounts and commissions received by the Underwriters in connection
therewith, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate offering price of the Shares.
The relative fault of the Company, on the one hand, and the Underwriters on the other, shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or by the Underwriters and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or omission.
(e) Limitation
on Liability. The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to paragraph
(d) above were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose)
or by any other method of allocation that does not take account of the equitable considerations referred to in paragraph (d) above.
The amount paid or payable by an Indemnified Person as a result of the losses, claims, damages and liabilities referred to in paragraph
(d) above shall be deemed to include, subject to the limitations set forth above, any reasonable legal or other expenses incurred
by such Indemnified Person in connection with any such action or claim. Notwithstanding the provisions of paragraphs (d) and (e),
in no event shall an Underwriter be required to contribute any amount in excess of the amount by which the total underwriting discounts
and commissions received by such Underwriter with respect to the offering of the Shares exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations
to contribute pursuant to paragraphs (d) and (e) are several in proportion to their respective purchase obligations hereunder and
not joint.
(f) Non-Exclusive
Remedies. The remedies provided for in this Section 7 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any Indemnified Person at law or in equity.
8. Effectiveness
of Agreement. This Agreement shall become effective as of the date first written above.
9. Termination.
This Agreement may be terminated in the absolute discretion of the Representatives, by notice to the Company, if after the execution
and delivery of this Agreement and on or prior to the Closing Date or, in the case of the Option Shares, prior to the Additional
Closing Date (i) trading generally shall have been suspended or materially limited on or by either of the New York Stock Exchange
or The NASDAQ Stock Market; (ii) (a) trading of any securities issued or guaranteed by the Company shall have been suspended on
any exchange or in any over-the-counter market, other than in connection with the suspension or cessation of trading of the Common
Stock on the OTCQB Venture Market contemplated in connection with the listing of the Stock on The NASDAQ Capital Market or (b)
trading of any security issued or guaranteed by the Company shall have been suspended on The NASDAQ Capital Market; (iii) a general
moratorium on commercial banking activities shall have been declared by federal or New York State authorities; or (iv) there shall
have occurred any outbreak or escalation of hostilities or any change in financial markets or any calamity or crisis, either within
or outside the United States, that, in the judgment of the Representatives, is material and adverse and makes it impracticable
or inadvisable to proceed with the offering, sale or delivery of the Shares on the Closing Date or the Additional Closing Date,
as the case may be, on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus.
10. Defaulting
Underwriter.
(a) If, on the
Closing Date or the Additional Closing Date, as the case may be, any Underwriter defaults on its obligation to purchase the Shares
that it has agreed to purchase hereunder on such date, the non-defaulting Underwriters may in their discretion arrange for the
purchase of such Shares by other persons satisfactory to the Company on the terms contained in this Agreement. If, within 36 hours
after any such default by any Underwriter, the non-defaulting Underwriters do not arrange for the purchase of such Shares, then
the Company shall be entitled to a further period of 36 hours within which to procure other persons satisfactory to the non-defaulting
Underwriters to purchase such Shares on such terms. If other persons become obligated or agree to purchase the Shares of a defaulting
Underwriter, either the non-defaulting Underwriters or the Company may postpone the Closing Date or the Additional Closing
Date, as the case may be, for up to five full business days in order to effect any changes that in the opinion of counsel for the
Company or counsel for the Underwriters may be necessary in the Registration Statement and the Prospectus or in any other document
or arrangement, and the Company agrees to promptly prepare any amendment or supplement to the Registration Statement and the Prospectus
that effects any such changes. As used in this Agreement, the term “Underwriter” includes, for all purposes of this
Agreement unless the context otherwise requires, any person not listed in Schedule 1 hereto that, pursuant to this Section 10,
purchases Shares that a defaulting Underwriter agreed but failed to purchase.
(b) If, after
giving effect to any arrangements for the purchase of the Shares of a defaulting Underwriter or Underwriters by the non-defaulting
Underwriters and the Company as provided in paragraph (a) above, the aggregate number of Shares that remain unpurchased on the
Closing Date or the Additional Closing Date, as the case may be, does not exceed one-eleventh of the aggregate number of Shares
to be purchased on such date, then the Company shall have the right to require each non-defaulting Underwriter to purchase the
number of Shares that such Underwriter agreed to purchase hereunder on such date plus such Underwriter’s pro rata share (based
on the number of Shares that such Underwriter agreed to purchase on such date) of the Shares of such defaulting Underwriter or
Underwriters for which such arrangements have not been made.
(c) If, after
giving effect to any arrangements for the purchase of the Shares of a defaulting Underwriter or Underwriters by the non-defaulting
Underwriters and the Company as provided in paragraph (a) above, the aggregate number of Shares that remain unpurchased on the
Closing Date or the Additional Closing Date, as the case may be, exceeds one-eleventh of the aggregate amount of Shares to be purchased
on such date, or if the Company shall not exercise the right described in paragraph (b) above, then this Agreement or, with respect
to any Additional Closing Date, the obligation of the Underwriters to purchase Shares on the Additional Closing Date, as the case
may be, shall terminate without liability on the part of the non-defaulting Underwriters. Any termination of this Agreement pursuant
to this Section 10 shall be without liability on the part of the Company, except that the Company will continue to be liable for
the payment of expenses as set forth in Section 11 hereof and except that the provisions of Section 7 hereof shall not terminate
and shall remain in effect.
(d) Nothing contained
herein shall relieve a defaulting Underwriter of any liability it may have to the Company or any non-defaulting Underwriter for
damages caused by its default.
11. Payment
of Expenses.
(a) Whether or
not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company will pay or cause
to be paid all costs and expenses incident to the performance of its obligations hereunder, including without limitation, (i) the
costs incident to the authorization, issuance, sale, preparation and delivery of the Shares to the Underwriters and any taxes payable
in that connection; (ii) the costs incident to the preparation, printing and filing under the Securities Act of the Registration
Statement, the Preliminary Prospectus, any Pricing Disclosure Package and the Prospectus (including all exhibits, amendments and
supplements thereto) and the distribution thereof; (iii) the fees and expenses of the Company’s counsel and independent accountants;
(iv) the fees and expenses incurred in connection with the registration or qualification and determination of eligibility for investment
of the Shares under the state or foreign securities or blue sky laws of such jurisdictions as the Representatives may designate
and the preparation, printing and distribution of a Blue Sky Memorandum (including the related fees and expenses of counsel for
the Underwriters); (v) the cost of preparing stock certificates; (vi) the costs and charges of any transfer agent and
any registrar; (vii) all expenses and application fees incurred in connection with any filing with, and clearance of the offering
by, FINRA in an amount, inclusive of expenses incurred under (iv), not to exceed $30,000; (viii) all expenses incurred by the Company
in connection with any “road show” presentation to potential investors; and (ix) all expenses and application fees
related to the listing of the Shares on The NASDAQ Capital Market.
(b) If (i) this
Agreement is terminated pursuant to clause (ii) of Section 9, (ii) the Company for any reason fails to tender the Shares for delivery
to the Underwriters (other than by reason of a default by any Underwriter) or (iii) the Underwriters decline to purchase the Shares
for any reason permitted under this Agreement (other than following termination of this Agreement pursuant to clauses (i), (iii)
or (iv) of Section 9), the Company agrees to reimburse the Underwriters for all out-of-pocket costs and expenses (including the
fees and expenses of their counsel) reasonably incurred by the Underwriters in connection with this Agreement and the offering
contemplated hereby. For the avoidance of doubt, it is understood that the Company shall not pay or reimburse any costs, fees or
expenses incurred by an Underwriter that defaults on its obligations to purchase the Shares.
12. Persons
Entitled to Benefit of Agreement. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their
respective successors and the officers and directors and any controlling persons referred to herein, and the affiliates of each
Underwriter referred to in Section 7 hereof. Nothing in this Agreement is intended or shall be construed to give any other person
any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein. No purchaser
of Shares from any Underwriter shall be deemed to be a successor merely by reason of such purchase.
13. Survival.
The respective indemnities, rights of contribution, representations, warranties and agreements of the Company and the Underwriters
contained in this Agreement or made by or on behalf of the Company or the Underwriters pursuant to this Agreement or any certificate
delivered pursuant hereto shall survive the delivery of and payment for the Shares and shall remain in full force and effect, regardless
of any termination of this Agreement or any investigation made by or on behalf of the Company or the Underwriters or the directors,
officers, controlling persons or affiliates referred to in Section 7 hereof.
14. Certain
Defined Terms. For purposes of this Agreement, (a) except where otherwise expressly provided, the term “affiliate”
has the meaning set forth in Rule 405 under the Securities Act; (b) the term “business day” means any day other than
a day on which banks are permitted or required to be closed in New York City; and (c) the term “subsidiary” has the
meaning set forth in Rule 405 under the Securities Act.
15. Compliance
with USA Patriot Act. In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective
clients, including the Company, which information may include the name and address of their respective clients, as well as other
information that will allow the Underwriters to properly identify their respective clients.
16. Miscellaneous.
(a) Notices.
All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted
and confirmed by any standard form of telecommunication. Notices to the Underwriters shall be given to the Representatives c/o
J.P. Morgan Securities LLC, 383 Madison Avenue, New York, New York 10179 (fax: (212) 622-8358), Attention Equity Syndicate Desk;
c/o Jefferies LLC, 520 Madison Avenue, New York, New York 10022, Attention: General Counsel.
(b) Governing
Law. This Agreement and any claim, controversy or dispute arising under or related to this Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to agreements made and to be performed in such state.
(c) Submission
to Jurisdiction. The Company hereby submits to the exclusive jurisdiction of the U.S. federal and New York state courts in
the Borough of Manhattan in The City of New York in any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby. The Company waives any objection which it may now or hereafter have to the laying of venue of
any such suit or proceeding in such courts. The Company agrees that final judgment in any such suit, action or proceeding brought
in such court shall be conclusive and binding upon the Company and may be enforced in any court to the jurisdiction of which Company
is subject by a suit upon such judgment.
(d) Waiver
of Jury Trial. Each of the parties hereto hereby waives any right to trial by jury in any suit or proceeding arising out of
or relating to this Agreement.
(e) Recognition
of the U.S. Special Resolution Regimes.
(i) In the event that any Underwriter that is
a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of
this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer
would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed
by the laws of the United States or a state of the United States.
(ii) In the event that any Underwriter that
is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution
Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no
greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed
by the laws of the United States or a state of the United States.
As used in this Section 16(e):
“BHC Act Affiliate” has the meaning
assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
“Covered Entity” means any of the following:
(i) a “covered entity” as that term
is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii) a “covered bank” as that term
is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii) a “covered FSI” as that term
is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” has the meaning assigned
to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“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.
(f) Counterparts.
This Agreement may be signed in counterparts (which may include counterparts delivered by any standard form of telecommunication),
each of which shall be an original and all of which together shall constitute one and the same instrument. Signatures to this Agreement
transmitted by facsimile transmission, by electronic mail in “portable document format” (“.pdf”) form,
or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the
same effect as physical delivery of the paper document bearing the original signature.
(g) Authority
of Representatives. Any action by the Underwriters hereunder may be taken by the Representatives on behalf of the Underwriters,
and any such action taken by the Representatives shall be binding upon the Underwriters.
(h) Amendments
or Waivers. No amendment or waiver of any provision of this Agreement, nor any consent or approval to any departure therefrom,
shall in any event be effective unless the same shall be in writing and signed by the parties hereto.
(i) Headings.
The headings herein are included for convenience of reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
If the foregoing is in accordance with your understanding,
please indicate your acceptance of this Agreement by signing in the space provided below.
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Very truly yours,
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HUMANIGEN, INC.
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By:
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/s/ Timothy E. Morris
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Name: Timothy E. Morris
Title: COO and CFO
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Accepted: As of the date first written above
J.P. MORGAN SECURITIES LLC
JEFFERIES LLC
For itself and on behalf of the
several Underwriters listed
in Schedule 1 hereto.
J.P. MORGAN SECURITIES LLC
By:
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/s/ David Ke
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Name: David Ke
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Title: Executive Director
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JEFFERIES LLC
By:
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/s/ Matthew Kim
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Name: Matthew Kim
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Title: Managing Director
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Schedule 1
Underwriter
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Number of Shares
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J.P. Morgan Securities LLC
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4,000,000
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Jefferies LLC
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2,880,000
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Bryan, Garnier & Co. Limited
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280,000
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H.C. Wainwright & Co., LLC
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280,000
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National Securities Corporation
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280,000
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Roth Capital Partners, LLC
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280,000
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Total
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8,000,000
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Annex A
Pricing Information Provided Orally by Underwriters
$8.50 per Share
Underwritten Shares: 8,000,000
Annex B
Based upon, subject to and limited by the assumptions,
qualifications, exceptions, and limitations set forth in this opinion letter, we are of the opinion that:
(a) The
Company is validly existing as a corporation and in good standing under the laws of the State of Delaware. The Company has the
corporate power to own, lease and operate its properties and conduct its business as described in the Registration Statement, the
Pricing Disclosure Package and Prospectus.
(b) The
authorized shares of Common Stock of the Company are as set forth under the caption “Description of Common Stock” in
the Registration Statement, the Pricing Disclosure Package and the Prospectus. To our knowledge, the Company has not issued any
outstanding securities convertible into or exchangeable for, or outstanding options, warrants or other rights to purchase or subscribe
for, any shares of Common Stock or other securities of the Company, except as described in the Registration Statement, Pricing
Disclosure Package and the Prospectus. No holder of outstanding shares of Common Stock of the Company has any statutory preemptive
or similar right under the DGCL or the Company’s Certificate of Incorporation or Bylaws or, to our knowledge, any contractual
right to subscribe for the Shares. Except as set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus,
to our knowledge, there are no holders of any securities of the Company who, by reason of the execution, delivery and performance
on the date hereof of the Underwriting Agreement by the Company, have the right to require the Company to register securities held
by them under the Securities Act pursuant to the Registration Statement, except such rights as have been waived by such holders
(c) The
Shares have been duly authorized and, when issued in accordance with the provisions of the Underwriting Agreement, will be validly
issued, fully paid and non-assessable.
(d) The
Underwriting Agreement has been duly authorized, executed and delivered by the Company.
(e) Based
solely upon our review of the information regarding the Company provided through the EDGAR System on the Commission’s website,
the Registration Statement has become effective under the Securities Act, and to our knowledge, no stop order suspending the effectiveness
of the Registration Statement or suspending or preventing the use of the Prospectus has been issued under the Securities Act, no
notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant
to Rule 401(g)(2) under the Securities Act has been received by the Company and no proceedings for such purposes have been instituted
or are threatened by the Commission. The required filings of the Prospectus pursuant to Rule 424(b) promulgated pursuant to the
Securities Act have been made in the manner and within the time period required by Rule 424(b).
(f) The
Registration Statement, at the time that it became effective, and the Pricing Disclosure Package and the Prospectus, each as of
their respective dates (except for the financial statements and supporting schedules included therein, as to which we express no
opinion), comply or complied as to form in all material respects with the requirements of the Securities Act.
(g) The
documents incorporated by reference in the Registration Statement and the Prospectus pursuant to Item 12 of Form S-3 under the
Securities Act (other than the financial statements and schedules included therein or omitted therefrom, as to which we express
no opinion), at the time they were filed with the Commission, complied as to form in all material respects with the requirements
of the Exchange Act.
(h) The
information set forth under the caption “Description of Common Stock” in the Registration Statement, the Pricing Disclosure
Package and the Prospectus and in the Registration Statement under Item 15 of Part II thereof, to the extent that such information
constitutes descriptions of certain provisions of the documents referred to therein, has been reviewed by us and is accurate in
all material respects, and insofar as such information constitutes descriptions of matters of law or legal conclusions, has been
reviewed by us and is accurate in all material respects.
(i) The
execution, delivery, and performance on the date hereof by the Company of its obligations under the Underwriting Agreement, as
applicable, do not (i) violate the Certificate of Incorporation or the Bylaws of the Company or any provision of the DGCL,
(ii) violate any provision of Applicable Federal Law or Applicable State Law, (iii) violate any court or administrative
orders, judgments or decrees that name the Company and are specifically directed to it or any of its property that are known to
us, or (iv) breach or constitute a default under any of the terms or provisions of, or result in the creation or imposition of
any lien upon any property or assets of the Company or any of its subsidiaries pursuant to, any Material Contract (except that
we express no opinion with respect to any matters that would require a mathematical calculation or a financial or accounting determination).
(j) In
connection with the execution, delivery and performance on the date hereof by the Company of the Underwriting Agreement, except
as has been obtained or made on or prior to the date hereof, no approval or consent of, or registration or filing with, (i) any
federal or New York governmental agency was or is required to be obtained or made by the Company under Applicable Federal Law or
Applicable State Law; or (ii) any Delaware governmental agency was or is required to be obtained or made by the Company under the
DGCL.
(k) The
Company is not, and after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described
under the caption “Use of Proceeds” in the Pricing Disclosure Package and the Prospectus, will not be an “investment
company” within the meaning of the Investment Company Act.
(l) The
Shares have been authorized for listing on the Nasdaq Capital Market by The Nasdaq Stock Market, LLC.
(m) The
information set forth in the Pricing Disclosure Package and the Prospectus under the caption “Material U.S. federal income
tax considerations for non-U.S. holders of common stock,” insofar as such information constitutes descriptions of U.S. federal
income tax laws or legal conclusions with respect thereto, has been reviewed by us and is accurate in all material respects.
(n) The
Regulatory Statements, insofar as the Regulatory Statements constitute summaries of Applicable FDA Law or legal conclusions with
respect thereto, have been reviewed by us and are accurate in all material respects.
Subject to the foregoing, we confirm
to you that, on the basis of the information we gained in the course of performing the services referred to above, no facts have
come to our attention that cause us to believe that:
(i) the Registration Statement, as
of the date of the Underwriting Agreement, contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein not misleading;
(ii) the Prospectus, as of its date
or as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits 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;
(iii) the Pricing Disclosure
Package, as of the Applicable Time (which you have informed us is a time prior to the time of the first sale of the Shares by any
Underwriter), contained an untrue statement of a material fact or omitted 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;
(iv) there are legal or governmental
proceedings pending or threatened against the Company that are required to be disclosed in the Registration Statement, the Pricing
Disclosure Package or the Prospectus, other than those disclosed therein; or
(v) there are contracts or documents
of a character required to be described in the Registration Statement, the Pricing Disclosure Package or the Prospectus or to be
filed as exhibits to the Registration Statement that are not described or referred to therein or so filed;
provided that in making the foregoing statements,
we do not express any belief with respect to the financial statements and supporting schedules and other financial or accounting
information and data contained or incorporated by reference in or omitted from the Registration Statement, the Pricing Disclosure
Package or the Prospectus.
Nothing herein shall be construed
to cause us to be considered “experts” within the meaning of Section 11 of the Securities Act of 1933, as amended.
Annex C
On the basis of the foregoing, we are of the opinion
that:
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1.
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The statements relating to the Company Patents included in the Registration Statement, the Pricing
Disclosure Package or the Prospectus (collectively, the “Patent Statements”), insofar as such Patent Statements
constitute summaries of documents or legal proceedings or refer to matters of law or legal conclusions, are accurate and complete
in all respects and present fairly the information purported to be shown.
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2.
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Nothing has come to our attention that causes us to believe that:
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a.
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the Patent Statements included in the Registration Statement, as of the Effective Date, contained
any untrue statement of material fact or failed to state any material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading;
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b.
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the Patent Statements included in the Pricing Disclosure Package, as of its date or any date as
amended or supplemented, as applicable, and as of the Effective Date, contained any untrue statement of material fact or failed
to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made,
not misleading; or
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c.
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the Patent Statements included in the Prospectus, as of its date and as of the date hereof, contained
any untrue statement of material fact or failed to state any material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading.
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3.
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To our knowledge, the Company and its subsidiaries own, have the right to use, or otherwise possess
sufficient rights under the Company Patents used in connection with their respective businesses, or that are necessary for the
manufacture, importation, use or sale of the Company’s products and product candidates: lenzilumab, ifabotuzumab and HGEN005
(“Product Candidates”) and therapeutic methods of use thereof, and its Humaneered technology and GM-CSF gene-editing
CAR-T platform technologies, as described in the Registration Statement, the Pricing Disclosure Package or the Prospectus.
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4.
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Except as described in the Registration Statement, the Pricing Disclosure Package or the Prospectus,
we are not aware of any granted patents of a third-party that, in our opinion, are valid and enforceable and are embodied by or
are necessary for the purpose of the manufacture, importation, use or sale of the Company’s and its subsidiaries’ Product
Candidates, Humaneered technology or GM-CSF gene-editing CAR-T platform technologies as described in the Registration Statement,
the Pricing Disclosure Package or the Prospectus.
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5.
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To our knowledge, there is no claim, action, suit or proceeding pending or threatened against the
Company or any of its subsidiaries alleging that the Company or any of its subsidiaries has infringed, misappropriated or otherwise
violated any intellectual property rights of any third party.
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6.
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To our knowledge, one or more issued claims of the Company Patents cover the composition of matter
of the Company’s Product Candidates, and such claims, to our knowledge, are directed to patent eligible subject matter under
35 U.S.C. § 101.
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7.
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To our knowledge, no claim, action, suit or proceeding (including any interference, reexamination,
derivation, inter partes review, post grant review, opposition or other judicial or administrative proceeding) pertaining
to the inventorship, ownership, validity or enforceability of any of the Company Patents has been threatened or declared.
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8.
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We are not aware of any material facts that are reasonably likely to provide a basis for a finding
of unenforceability or invalidity of any of the patents of the Company Patents.
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9.
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To our knowledge, all material published literature, all patent references, and any other pertinent
information relating to the inventions claimed in any of the Company Patents known to us has been disclosed to the United States
Patent and Trademark Office (“USPTO”) in accordance with 37 C.F.R. § 1.56 or any applicable patent office
in any other jurisdiction in accordance with the applicable rules and regulations in such jurisdiction. To our knowledge, all material
information submitted to the USPTO and any applicable patent office in any other jurisdiction in connection with the Company Patents,
and in connection with the prosecution thereof, was accurate at the time it was submitted. Neither we, nor to the best of our knowledge,
the Company and its subsidiaries, with respect to any of the Company Patents, have made any material misrepresentation or concealed
any material information from the USPTO in violation of 37 C.F.R. Section § 1.56 or from any applicable patent office in any
other jurisdiction in violation of the applicable rules and regulations in such jurisdiction.
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Exhibit A
FORM OF LOCK-UP AGREEMENT
[●], 2020
J.P. Morgan Securities LLC
Jefferies LLC
As Representatives of the
several Underwriters
listed
in Schedule 1 to the Underwriting
Agreement referred to below
c/o J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
c/o Jefferies LLC
520 Madison Avenue
New York, New York 10022
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Re:
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Humanigen, Inc. --- Public Offering
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Ladies and Gentlemen:
The undersigned understands that you, as Representatives
of the several Underwriters, propose to enter into an underwriting agreement (the “Underwriting Agreement”) dated September
17, 2020 with Humanigen, Inc., a Delaware corporation (the “Company”), providing for the public offering (the “Public
Offering”) by the several Underwriters named in Schedule 1 to the Underwriting Agreement (the “Underwriters”),
of common stock, $0.001 per share par value, of the Company (the “Securities”). Capitalized terms used herein and not
otherwise defined shall have the meanings set forth in the Underwriting Agreement.
In consideration of the Underwriters’ agreement
to purchase and make the Public Offering of the Securities, and for other good and valuable consideration receipt of which is hereby
acknowledged, the undersigned hereby agrees that, without the prior written consent of J.P. Morgan Securities LLC and Jefferies
LLC, on behalf of the Underwriters, the undersigned will not, and will not cause any direct or indirect affiliate to, during the
period beginning on the date of this letter agreement (this “Letter Agreement”) and ending at the close of business
90 days after the date of the final prospectus relating to the Public Offering (the “Prospectus”) (such period, the
“Restricted Period”), (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase
any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly
or indirectly, any shares of common stock, $0.001 per share par value, of the Company (the “Common Stock”) or any securities
convertible
into or exercisable or exchangeable for Common Stock (including without limitation, Common Stock or such other securities
which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities
and Exchange Commission and securities which may be issued upon exercise of a stock option or warrant) (collectively with the Common
Stock, “Lock-Up Securities”), (2) enter into any hedging, swap or other agreement or transaction that transfers, in
whole or in part, any of the economic consequences of ownership of the Lock-Up Securities, whether any such transaction described
in clause (1) or (2) above is to be settled by delivery of Lock-Up Securities, in cash or otherwise, (3) make any demand for or
exercise any right with respect to the registration of any Lock-Up Securities, or (4) publicly disclose the intention to do any
of the foregoing. The undersigned acknowledges and agrees that the foregoing precludes the undersigned from engaging in any hedging
or other transactions or arrangements (including, without limitation, any short sale or the purchase or sale of, or entry into,
any put or call option, or combination thereof, forward, swap or any other derivative transaction or instrument, however described
or defined) designed or intended, or which could reasonably be expected to lead to or result in, a sale or disposition or transfer
(whether by the undersigned or any other person) of any economic consequences of ownership, in whole or in part, directly or indirectly,
of any Lock-Up Securities, whether any such transaction or arrangement (or instrument provided for thereunder) would be settled
by delivery of Lock-Up Securities, in cash or otherwise.
Notwithstanding the foregoing, the undersigned may:
(a) transfer the undersigned’s Lock-Up Securities:
(i) as a bona fide gift or gifts, or for bona fide estate
planning purposes,
(ii) by will or intestacy,
(iii) to any trust for the direct or indirect benefit
of the undersigned or the immediate family of the undersigned, or if the undersigned is a trust, to a trustor or beneficiary of
the trust or to the estate of a beneficiary of such trust (for purposes of this Letter Agreement, “immediate family”
shall mean any relationship by blood, current or former marriage, domestic partnership or adoption, not more remote than first
cousin),
(iv) to a partnership, limited liability company or other
entity of which the undersigned and the immediate family of the undersigned are the legal and beneficial owner of all of the outstanding
equity securities or similar interests,
(v) to a nominee or custodian of a person or entity to
whom a disposition or transfer would be permissible under clauses (i) through (iv) above,
(vi) if the undersigned is a corporation, partnership,
limited liability company, trust or other business entity, (A) to another corporation, partnership, limited liability company,
trust or other business entity that is an affiliate (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended)
of the undersigned, or to any investment fund or other entity controlling, controlled by, managing or managed by or under common
control with the undersigned or affiliates of the undersigned (including, for the avoidance of doubt, where the undersigned is
a partnership, to its general partner or a successor partnership or fund, or any other funds managed by such partnership), or (B)
as part of a distribution to members or shareholders of the undersigned,
(vii) by operation of law, such as pursuant to a qualified
domestic order, divorce settlement, divorce decree or separation agreement,
(viii) to the Company from an employee of the Company
upon death, disability or termination of employment, in each case, of such employee,
(ix) as part of a sale of the undersigned’s Lock-Up
Securities acquired in open market transactions after the closing date for the Public Offering,
(x) to the Company in connection with the vesting, settlement,
or exercise of restricted stock units, options, warrants or other rights to purchase shares of Common Stock (including, in each
case, by way of “net” or “cashless” exercise), including for the payment of exercise price and tax and
remittance payments due as a result of the vesting, settlement, or exercise of such restricted stock units, options, warrants or
rights, provided that any such shares of Common Stock received upon such exercise, vesting or settlement shall be subject to the
terms of this Letter Agreement, and provided further that any such restricted stock units, options, warrants or rights are held
by the undersigned pursuant to an agreement or equity awards granted under a stock incentive plan or other equity award plan, each
such agreement or plan which is described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, or
(xi) pursuant to a bona fide third-party tender offer,
merger, consolidation or other similar transaction that is approved by the Board of Directors of the Company and made to all holders
of the Company’s capital stock involving a Change of Control (as defined below) of the Company (for purposes hereof, “Change
of Control” shall mean the transfer (whether by tender offer, merger, consolidation or other similar transaction), in one
transaction or a series of related transactions, to a person or group of affiliated persons, of shares of capital stock if, after
such transfer, such person or group of affiliated persons would hold more than 90% of the outstanding voting securities of the
Company (or the surviving entity)); provided that in the event that such tender offer, merger, consolidation or other similar
transaction is not completed, the undersigned’s Lock-Up Securities shall remain subject to the provisions of this Letter
Agreement;
provided that (A) in the case of any transfer or
distribution pursuant to clause (a)(i), (ii), (iii), (iv), (v), (vi) and (vii), such transfer shall not involve a disposition for
value and each donee, devisee, transferee or distributee shall execute and deliver to the Representatives a lock-up letter in the
form of this Letter Agreement, (B) in the case of any transfer or distribution pursuant to clause (a)(i), (ii), (iii), (iv), (v),
(vi), (ix) and (x), no filing by any party (donor, donee, devisee, transferor, transferee, distributer or distributee) under the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), or other public announcement shall be required or
shall be made voluntarily in connection with such transfer or distribution (other than a filing on a Form 5 made after the expiration
of the Restricted Period referred to above) and (C) in the case of any transfer or distribution pursuant to clause (a)(vii) and
(viii) it shall be a condition to such transfer that no public filing, report or announcement shall be voluntarily made and if
any filing under Section 16(a) of the Exchange Act, or other public filing, report or announcement reporting a reduction in beneficial
ownership of shares of Common Stock in connection with such transfer or distribution shall be legally required during the Restricted
Period, such filing, report or announcement shall clearly indicate in the footnotes thereto the nature and conditions of such transfer;
(b) exercise outstanding options, settle restricted stock
units or other equity awards or exercise warrants pursuant to plans described in the Registration Statement, the Pricing Disclosure
Package and the Prospectus; provided that any Lock-up Securities received upon such exercise, vesting or settlement shall be subject
to the terms of this Letter Agreement;
(c) convert outstanding preferred stock, warrants to acquire
preferred stock or convertible securities into shares of Common Stock or warrants to acquire shares of Common Stock; provided that
any such shares of Common Stock or warrants received upon such conversion shall be subject to the terms of this Letter Agreement;
and
(d) establish trading plans pursuant to Rule 10b5-1 under
the Exchange Act for the transfer of shares of Lock-Up Securities; provided that (1) such plans do not provide for the transfer
of Lock-Up Securities during the Restricted Period and (2) no filing by any party under the Exchange Act or other public announcement
shall be required or made voluntarily in connection with such trading plan and any public announcement or filing under the Exchange
Act made by any person regarding the establishment of such plan during the Restricted Period shall include a statement that the
undersigned is not permitted to transfer, sell or otherwise dispose of securities under such plan during the Restricted Period
in contravention of this Lock-Up Agreement.
In furtherance of the foregoing, the Company, and any
duly appointed transfer agent for the registration or transfer of the securities described herein, are hereby authorized to decline
to make any transfer of securities if such transfer would constitute a violation or breach of this Letter Agreement.
The undersigned hereby represents and warrants that the
undersigned has full power and authority to enter into this Letter Agreement. All authority herein conferred or agreed to be conferred
and any obligations of the undersigned shall be binding upon the successors, assigns, heirs or personal representatives of the
undersigned.
The undersigned acknowledges and agrees that the Underwriters
have not provided any recommendation or investment advice nor have the Underwriters solicited any action from the undersigned with
respect to the Public Offering of the Securities and the undersigned has consulted their own legal, accounting, financial, regulatory
and tax advisors to the extent deemed appropriate. The undersigned further acknowledges and agrees that, although the Representatives
may be required or choose to provide certain Regulation Best Interest and Form CRS disclosures to you in connection with the Public
Offering, the Representatives and the other Underwriters are not making a recommendation to you to enter into this Letter Agreement,
participate in the Public Offering, or sell any Shares at the price determined in the Public Offering, and nothing set forth in
such disclosures is intended to suggest that the Representatives or any Underwriter is making such a recommendation.
The undersigned understands that, if the Underwriting
Agreement does not become effective by October 31, 2020, or if the Underwriting Agreement (other than the provisions thereof which
survive termination) shall terminate or be terminated prior to payment for and delivery of the Common Stock to be sold thereunder,
the undersigned shall be released from all obligations under this Letter Agreement. The undersigned understands that the Underwriters
are entering into the Underwriting Agreement and proceeding with the Public Offering in reliance upon this Letter Agreement.
[Signature Page Follows]
This Letter Agreement and any claim, controversy or dispute
arising under or related to this Letter Agreement shall be governed by and construed in accordance with the laws of the State of
New York.
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Very truly yours,
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[NAME OF DIRECTOR, OFFICER, THEIR
AFFILIATE, OR STOCKHOLDER]
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By:
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Name:
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Title:
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Exhibit 5.1
1401
Eye Street NW, Suite 800, Washington, DC, 20005 · 202.783.3300
September 21, 2020
Board of Directors
Humanigen, Inc.
533 Airport Boulevard, Suite 400
Burlingame, CA 94010
Ladies and Gentlemen:
We are acting as counsel to Humanigen, Inc.,
a Delaware corporation (the “Company”), in connection with the public offering of up to 9,200,000 shares of
common stock, par value $0.001 per share, of the Company (the “Shares”). The offering by the Company is being
made pursuant to a prospectus supplement dated September 17, 2020 and the accompanying base prospectus dated September 14, 2020
(such documents, collectively, the “Prospectus”) that form part of the Company’s effective registration
statement on Form S-3 (File No. 333-2482485) (the “Registration Statement”). This opinion letter is furnished
to you at your request to enable the Company to fulfill the requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R. §
229.601(b)(5), in connection with the Registration Statement.
For purposes of this opinion letter, we
have examined copies of such agreements, instruments and documents as we have deemed an appropriate basis on which to render the
opinion hereinafter expressed. In our examination of the aforesaid documents, we have assumed the genuineness of all signatures,
the legal capacity of all natural persons, the accuracy and completeness of all documents submitted to us, the authenticity of
all original documents, and the conformity to authentic original documents of all documents submitted to us as copies (including
telecopies). As to all matters of fact, we have relied on the representations and statements of fact made in the documents so reviewed,
and we have not independently established the facts so relied on. This opinion letter is given, and all statements herein are made,
in the context of the foregoing.
This opinion letter is based as to matters
of law solely on the Delaware General Corporation Law, as amended (collectively, the “DGCL”). We express no
opinion herein as to any other laws, statutes, ordinances, rules, or regulations.
Based upon, subject to and limited by the
foregoing, we are of the opinion that following (i) issuance of the Shares pursuant to the terms of the Underwriting Agreement,
dated September 17, 2020, by and among the Company, J.P. Morgan Securities LLC and Jefferies LLC, as representatives of the several
underwriters listed on Schedule 1 thereto, and (ii) receipt by the Company of the consideration for the Shares specified
in the resolutions of the Board of Directors and the Pricing Committee of the Board of Directors, the Shares will be validly issued,
fully paid, and nonassessable.
This opinion letter has been prepared for
use in connection with the filing by the Company of a Current Report on Form 8-K relating to the offer and sale of the Shares,
which Form 8-K will be incorporated by reference into the Registration Statement and Prospectus, and speaks as of the date hereof.
We assume no obligation to advise you of any changes in the foregoing subsequent to the delivery of this letter.
Board of Directors
Humanigen, Inc.
September 21, 2020
Page 2
We hereby consent to the filing of this
opinion letter as Exhibit 5.1 to the above-described Form 8-K and to the reference to this firm under the caption “Legal
matters” in the Prospectus. In giving this consent, we do not thereby admit that we are an “expert” within the
meaning of the Securities Act of 1933, as amended.
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Very truly yours,
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/s/ POLSINELLI PC
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