false
0001819411
0001819411
2024-09-06
2024-09-06
iso4217:USD
xbrli:shares
iso4217:USD
xbrli:shares
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
September 6, 2024
| |
|
|
| GAIN
THERAPEUTICS, INC. |
| (Exact name of registrant as specified in its
charter) |
| Delaware |
|
001-40237 |
|
85-1726310 |
(State or other jurisdiction
of incorporation) |
|
(Commission File Number) |
|
(IRS Employer
Identification No.) |
4800
Montgomery Lane, Suite 220
Bethesda,
Maryland 20814
(Address of principal executive offices) (Zip
Code)
(301)
500-1556
(Registrant’s telephone number, including
area code)
Check the appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ¨ | Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
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).
Emerging growth company x
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.
Securities registered pursuant to Section 12(b)
of the Act:
| Title
of each class |
Trading
Symbol(s) |
Name
of each exchange on which registered |
| Common
Stock, par value $0.0001 |
GANX |
The
Nasdaq Stock
Market LLC |
Item 1.01 Entry into a Material Definitive Agreement.
On September 6,
2024, Gain Therapeutics, Inc. (the “Company”) entered into an Equity Distribution Agreement (the “Distribution
Agreement”) with Oppenheimer & Co. Inc., serving as agent (“Oppenheimer”) with respect to an at-the-market
offering program under which the Company may offer and sell, from time to time at its sole discretion, shares of its common stock, par
value $0.0001 per share (the “Common Stock”), having an aggregate offering price of
up to $50.0 million (the “Shares”) through Oppenheimer (the “Offering”). Any Shares offered
and sold in the Offering will be issued pursuant to the Company’s shelf Registration Statement on Form S-3 (File No. 333-265061)
filed with the Securities and Exchange Commission (the “SEC”) on May 18, 2022, which was declared effective on
June 1, 2022, the related prospectus contained therein, and the prospectus supplement relating to the Offering to be filed with
the SEC on September 6, 2024.
Oppenheimer
may sell the Shares by any method permitted by law deemed to be an “at the market offering” as defined in Rule 415 of
the Securities Act of 1933, as amended (the “Securities Act”), including, without limitation, sales made through The
Nasdaq Capital Market (“Nasdaq”) or on any other existing trading market for the Common Stock. The Company has no obligation
to sell any Shares and may at any time suspend offers under or terminate the Distribution Agreement in accordance with its terms. Oppenheimer
will use commercially reasonable efforts to sell the Shares from time to time consistent with its normal sales practices and applicable
federal rules, regulations and Nasdaq rules, based upon instructions from the Company (including any price, time or size limits or other
customary parameters or conditions the Company may impose). The Company will pay Oppenheimer a commission equal to 3.0% of the gross sales
proceeds of any Shares sold through Oppenheimer under the Distribution Agreement, and also has provided Oppenheimer with customary indemnification
and contribution rights, including for liabilities under the Securities Act and the Securities Exchange Act of 1934, as amended.
The Company also will reimburse Oppenheimer for certain specified expenses in connection with entering into the Distribution Agreement,
as well as certain specified expenses on a quarterly basis.
Oppenheimer is not required to sell any specific
number or dollar amount of securities, but will use commercially reasonable efforts to sell, on behalf of the Company, all of the shares
of Common Stock requested to be sold by the Company, consistent with Oppenheimer’s normal trading and sales practices, on mutually
agreed terms between Oppenheimer and the Company. There is no arrangement for funds to be received in any escrow, trust or similar arrangement.
The foregoing description of the Distribution
Agreement is not complete and is qualified in its entirety by reference to the full text of the Distribution Agreement, a copy of which
is filed herewith as Exhibit 1.1 to this Current Report on Form 8-K and is incorporated herein by reference. A copy of the opinion
of Lowenstein Sandler LLP relating to the legality of the issuance and sale of the Shares in the Offering is attached as Exhibit 5.1
hereto.
This Current Report on Form 8-K shall not
constitute an offer to sell or the solicitation of an offer to buy the securities discussed herein, nor shall there be any offer, solicitation,
or sale of the securities in any state in which such offer, solicitation or sale would be unlawful prior to registration or qualification
under the securities laws of any such state.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
SIGNATURE
Pursuant to the requirements of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| |
GAIN THERAPEUTICS, INC. |
| |
|
| Dated: September 6, 2024 |
By: |
/s/ Gene Mack |
| |
Name: |
Gene Mack |
| |
Title: |
Chief Financial Officer and Interim Chief Executive
Officer |
Exhibit 1.1
GAIN
THERAPEUTICS, Inc.
$50,000,000
COMMON
STOCK
EQUITY
DISTRIBUTION AGREEMENT
September 6, 2024
Oppenheimer & Co. Inc.
85 Broad Street, 26th Floor
New York, New York 10004
Ladies and Gentlemen:
Gain Therapeutics, Inc.,
a Delaware corporation (the “Company”), confirms its agreement (this “Agreement”)
with Oppenheimer & Co. Inc., as follows:
1. Issuance
and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the
conditions set forth herein, it may issue and sell to or through Oppenheimer & Co. Inc., acting as agent and/or principal (the
“Sales Agent”), shares of the Company’s common stock, par value $0.0001 per share (the “Common
Stock”), having an aggregate offering price of up to $50,000,000 (the “Maximum Amount”), subject
to the limitations set forth in Section 3(b) hereof. The issuance and sale of shares of Common Stock to or through the
Sales Agent will be effected pursuant to the Registration Statement (as defined below) filed, or to be filed, by the Company and after
such Registration Statement has been declared effective by the U.S. Securities and Exchange Commission (the “Commission”),
although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement (as defined below) to
issue the Common Stock.
On the date of this Agreement,
the Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended, and the rules and regulations
thereunder (collectively, the “Securities Act”), with the Commission, a registration statement on Form S-3,
including a base prospectus, relating to certain securities, including the Common Stock, to be issued from time to time by the Company,
and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange Act”).
The Company has prepared a prospectus supplement specifically relating to the offer and sale of Placement Shares (as defined below) pursuant
to this Agreement included as part of such registration statement (the “ATM Prospectus”). The Company
will furnish to the Sales Agent, for use by the Sales Agent, copies of the ATM Prospectus included as part of such registration statement,
relating to the Placement Shares. Except where the context otherwise requires, such registration statement, as amended, including all
documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined
below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act or deemed to be a part of such
registration statement pursuant to Rule 430B or Rule 462(b) of the Securities Act, is herein called the “Registration
Statement.” The base prospectus, including all documents incorporated therein by reference, and the ATM Prospectus,
including all documents incorporated therein by reference, each of which is included in the Registration Statement, as it or they may
be supplemented by any additional prospectus supplement, in the form in which such prospectus and/or ATM Prospectus have most recently
been filed by the Company with the Commission, is herein called the “Prospectus.” Any reference herein to the
Registration Statement, the Prospectus or any amendment or supplement thereto shall be deemed to refer to and include the documents incorporated
by reference therein, and any reference herein to the terms “amend,” “amendment” or “supplement”
with respect to the Registration Statement or the Prospectus shall be deemed to refer to and include the filing after the execution hereof
of any document with the Commission deemed to be incorporated by reference therein. For purposes of this Agreement, all references to
the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include any copy filed with the
Commission pursuant to the Electronic Data Gathering Analysis and Retrieval System or any successor thereto (collectively “EDGAR”).
2. Placements.
Each time that the Company wishes to issue and sell the Common Stock through the Sales Agent, as agent, hereunder (each, a “Placement”),
it will notify the Sales Agent by email notice (or other method mutually agreed to in writing by the parties) (a “Placement
Notice”) containing the parameters in accordance with which it desires the Common Stock to be sold, which shall at a minimum
include the number of shares of Common Stock to be issued (the “Placement Shares”), the time period during
which sales are requested to be made, any limitation on the number of shares of Common Stock that may be sold in any one Trading Day
(as defined in Section 3) and any minimum price below which sales may not be made, a form of which containing such minimum
sales parameters necessary is attached hereto as Schedule 1. The Placement Notice shall originate from any of the
individuals from the Company set forth on Schedule 2 (with a copy to each of the other individuals from the Company
listed on such schedule), and shall be addressed to each of the individuals from the Sales Agent set forth on Schedule 2,
as such Schedule 2 may be amended from time to time. The Placement Notice shall be effective upon receipt by the Sales
Agent unless and until (i) in accordance with the notice requirements set forth in Section 4, the Sales Agent declines
to accept the terms contained therein for any reason, in its sole discretion, (ii) the entire amount of the Placement Shares has
been sold pursuant to this Agreement, (iii) in accordance with the notice requirements set forth in Section 4, the Company
suspends or terminates the Placement Notice, (iv) the Company issues a subsequent Placement Notice with parameters superseding those
on the earlier dated Placement Notice, or (v) the Agreement has been terminated under the provisions of Section 11.
The amount of any discount, commission or other compensation to be paid by the Company to the Sales Agent in connection with the sale
of the Placement Shares through the Sales Agent, as agent, shall be as set forth in Schedule 3. It is expressly acknowledged
and agreed that neither the Company nor the Sales Agent will have any obligation whatsoever with respect to a Placement or any Placement
Shares unless and until the Company delivers a Placement Notice to the Sales Agent and the Sales Agent does not decline such Placement
Notice pursuant to the terms set forth above, and then only upon the terms specified therein and herein. In the event of a conflict between
the terms of this Agreement and the terms of a Placement Notice, the terms of the Placement Notice will control.
3. Sale
of Placement Shares by the Sales Agent.
(a) Subject
to the terms and conditions herein set forth, upon the Company’s issuance of a Placement Notice, and unless the sale of the Placement
Shares described therein has been declined, suspended, or otherwise terminated in accordance with the terms of this Agreement, the Sales
Agent, as agent for the Company, will use its commercially reasonable efforts consistent with its normal trading and sales practices
and applicable state and federal laws, rules and regulations and the rules of The Nasdaq Stock Market (the “Exchange”),
for the period specified in the Placement Notice, to sell such Placement Shares up to the amount specified by the Company in, and otherwise
in accordance with the terms of such Placement Notice. If acting as agent hereunder, the Sales Agent will provide written confirmation
to the Company (including by email correspondence to each of the individuals of the Company set forth on Schedule 2,
if receipt of such correspondence is actually acknowledged by any of the individuals to whom the notice is sent, other than via auto-reply)
no later than the opening of the Trading Day (as defined below) immediately following the Trading Day on which it has made sales of Placement
Shares hereunder setting forth the number of Placement Shares sold on such day, the compensation payable by the Company to the Sales
Agent pursuant to Section 2 with respect to such sales, and the Net Proceeds (as defined below) payable to the Company, with
an itemization of the deductions made by the Sales Agent (as set forth in Section 5(a)) from the gross proceeds that it receives
from such sales. Subject to the terms of the Placement Notice, the Sales Agent may sell Placement Shares by any method permitted by law
deemed to be an “at the market” offering as defined in Rule 415 under the Securities Act, including without limitation
sales made directly on the Exchange, on any other existing trading market for the Common Stock or to or through a market maker. If expressly
authorized by the Company in a Placement Notice, the Sales Agent may also sell Placement Shares in privately negotiated transactions.
Subject to Section 3(c) below, the Sales Agent shall not purchase Placement Shares for its own account as principal
unless expressly authorized to do so by the Company in a Placement Notice. The Company acknowledges and agrees that (i) there can
be no assurance that the Sales Agent will be successful in selling Placement Shares, and (ii) the Sales Agent will incur no liability
or obligation to the Company or any other person or entity if it does not sell Placement Shares for any reason other than a failure by
the Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law
and regulations to sell such Placement Shares as required under this Section 3. For the purposes hereof, “Trading
Day” means any day on which the Common Stock is purchased and sold on the principal market on which the Common Stock is
listed or quoted.
(b) Under
no circumstances shall the Company cause or request the offer or sale of any Placement Shares if, after giving effect to the sale of
such Placement Shares, the aggregate number or gross sales proceeds of Placement Shares sold pursuant to this Agreement would exceed
the lesser of: (i) the number or dollar amount of shares of Common Stock registered pursuant to the Registration Statement pursuant
to which the offering hereunder is being made, (ii) the number of authorized but unissued and unreserved shares of Common Stock,
(iii) the number or dollar amount of shares of Common Stock permitted to be offered and sold by the Company under Form S-3
(including General Instruction I.B.6. of Form S-3, if and for so long as applicable), (iv) the number or dollar amount of shares
of Common Stock authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, a
duly authorized committee thereof or a duly authorized executive committee, and notified to the Sales Agent in writing, or (v) the
number or dollar amount of shares of Common Stock for which the Company has filed the ATM Prospectus or other prospectus or prospectus
supplement thereto specifically relating to the offering of the Placement Shares pursuant to this Agreement. Under no circumstances shall
the Company cause or request the offer or sale of any Placement Shares pursuant to this Agreement at a price lower than the minimum price
authorized from time to time by the Company’s board of directors, a duly authorized committee thereof or a duly authorized executive
committee, and notified to the Sales Agent in writing. Notwithstanding anything to the contrary contained herein, the parties hereto
acknowledge and agree that compliance with the limitations set forth in this Section 3(b) on the number or dollar amount
of Placement Shares that may be issued and sold under this Agreement from time to time shall be the sole responsibility of the Company,
and that the Sales Agent shall have no obligation in connection with such compliance.
(c) The
Company acknowledges and agrees that the Sales Agent has informed the Company that the Sales Agent may, to the extent permitted under
the Securities Act and the Exchange Act (including, without limitation, Regulation M promulgated thereunder), purchase and sell shares
of Common Stock for its own account while this Agreement is in effect, and shall be under no obligation to purchase Placement Shares
on a principal basis pursuant to this Agreement, except as otherwise agreed by the Sales Agent in a Placement Notice; provided,
that no such purchase or sales shall take place while a Placement Notice is in effect (except (i) as agreed by the Company and the
Sales Agent in the Placement Notice or (ii) to the extent the Sales Agent may engage in sales of Placement Shares purchased or deemed
purchased from the Company as a “riskless principal” or in a similar capacity); and, provided, further, that the Sales
Agent acknowledges and agrees that, except as expressly set forth in a Placement Notice, any such transactions are not being, and shall
not be deemed to have been, undertaken at the request or direction of, or for the account of, the Company, and that the Company has and
shall have no control over any decision by the Sales Agent to enter into any such transactions.
(d) During
the term of this Agreement and notwithstanding anything to the contrary herein, the Sales Agent agrees that in no event will the Sales
Agent or its affiliates engage in any market making, bidding, stabilization or other trading activity with regard to the Common Stock
or related derivative securities if such activity would be prohibited under Regulation M or other anti-manipulation rules under
the Exchange Act.
4. Suspension
of Sales.
(a) The
Company or the Sales Agent may, upon notice to the other party in writing (including by email correspondence to each of the individuals
of the other party set forth on Schedule 2, if receipt of such correspondence is actually acknowledged by any of the
individuals to whom the notice is sent, other than via auto-reply) or by telephone (confirmed immediately by verifiable facsimile transmission
or email correspondence to each of the individuals of the other party set forth on Schedule 2), suspend any sale of
Placement Shares for a period of time (a “Suspension Period”); provided, however, that such suspension
shall not affect or impair either party’s obligations with respect to any Placement Shares sold hereunder prior to the receipt
of such notice. Each of the parties agrees that no such notice under this Section 4 shall be effective against the other
unless it is made to one of the individuals named on Schedule 2 hereto, as such schedule may be amended from time
to time. During a Suspension Period, the Company shall not issue any Placement Notices and the Sales Agent shall not sell any Placement
Shares hereunder. The party that issued a suspension notice shall notify the other party in writing of the Trading Day on which the Suspension
Period shall expire not later than twenty-four (24) hours prior to such Trading Day.
(b) Notwithstanding
any other provision of this Agreement, during any period in which the Registration Statement is no longer effective under the Securities
Act or Company is in possession of material non-public information, the Company and the Sales Agent agree that (i) no sale of Placement
Shares will take place, (ii) the Company shall not request the sale of any Placement Shares and shall suspend or cancel any effective
Placement Notices, and (iii) the Sales Agent shall not be obligated to sell or offer to sell any Placement Shares.
5. Settlement.
(a) Settlement
of Placement Shares. Unless otherwise specified in the applicable Placement Notice, settlement for sales of Placement Shares will
occur on the second (2nd) Trading Day (and on and after May 28, 2024 (or such later date on which the Commission’s
final rule with respect to the shortening of the securities transaction settlement cycle becomes effective), on the first (1st)
Trading Day, or any such other settlement cycle as may be in effect pursuant to Rule 15c6-1 under the Exchange Act from time to
time) following the respective Point of Sale (as defined below) (each, a “Settlement Date”). The amount of
proceeds to be delivered to the Company on a Settlement Date against receipt of the Placement Shares sold (the “Net Proceeds”)
will be equal to the aggregate sales price received by the Sales Agent at which such Placement Shares were sold, after deduction for
(i) the Sales Agent’s discount, commission or other compensation for such sales payable by the Company pursuant to Section 2
hereof, (ii) any other amounts due and payable by the Company to the Sales Agent hereunder pursuant to Section 7(g) (Expenses)
hereof and (iii) any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales. “Point
of Sale” means, for a Placement, the time at which an acquiror of Placement Shares entered into a contract, binding upon
such acquiror, to acquire such Placement Shares.
(b) Delivery
of Placement Shares. On each Settlement Date, the Company will, or will cause its transfer agent to, electronically transfer the
Placement Shares being sold by crediting the Sales Agent’s or its designee’s account (provided the Sales Agent shall have
given the Company written notice of such designee prior to the Settlement Date) at The Depository Trust Company through its Deposit and
Withdrawal at Custodian System or by such other means of delivery as may be mutually agreed upon by the parties hereto which in all cases
shall be freely tradable, transferable, registered shares in good deliverable form. On each Settlement Date, the Sales Agent will deliver
the related Net Proceeds in same day funds to an account designated by the Company on, or prior to, the Settlement Date. The Company
agrees that if the Company, or its transfer agent (if applicable), defaults in its obligation to deliver duly authorized Placement Shares
on a Settlement Date, in addition to and in no way limiting the rights and obligations set forth in Section 9(a) (Indemnification
and Contribution) hereto, the Company will hold (i) the Sales Agent, its directors, officers, members, partners, employees and agents
of the Sales Agent, each broker dealer affiliate of the Sales Agent, and each person, if any, who (A) controls the Sales Agent within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act or (B) is controlled by or is under
common control with the Sales Agent (each, a “Sales Agent Affiliate”), harmless against any loss, claim, damage,
or expense (including reasonable and documented legal fees and expenses), as incurred, arising out of or in connection with such default
by the Company or its transfer agent (if applicable) and (ii) pay to the Sales Agent any commission, discount, or other compensation
to which it would otherwise have been entitled absent such default.
6. Representations
and Warranties of the Company. The Company, on behalf of itself and its subsidiaries, represents and warrants to, and agrees with,
the Sales Agent that as of each Applicable Time (as defined in Section 22(a)):
(a) Compliance
with Registration Requirements. As of each Applicable Time other than the date of this Agreement, the Registration Statement and
any Rule 462(b) Registration Statement have been declared effective by the Commission under the Securities Act. The Company
has complied to the Commission’s satisfaction with all requests of the Commission for additional or supplemental information related
to the Registration Statement and the Prospectus. No stop order suspending the effectiveness of the Registration Statement or any
Rule 462(b) Registration Statement is in effect and no proceedings for such purpose have been instituted or are pending or,
to the knowledge of the Company, are contemplated or threatened by the Commission. The Registration Statement and the offer and
sale of the Placement Shares as contemplated hereby meet the requirements of Rule 415 under the Securities Act and comply in all
material respects with said Rule. In the section entitled “Plan of Distribution” in the ATM Prospectus, the Company has named
Oppenheimer & Co. Inc. as an agent that the Company has engaged in connection with the transactions contemplated by this Agreement.
(b) No
Misstatement or Omission. As of (i) the time of filing of the Registration Statement and (ii) as of each Applicable Time,
the Company was not an “ineligible issuer” in connection with the offering of the Placement Shares pursuant to Rules 164,
405 and 433 under the Securities Act. The Company agrees to notify the Sales Agent promptly upon the Company becoming an “ineligible
issuer.” The Prospectus when filed will comply or complied and, as amended or supplemented, if applicable, will comply in all material
respects with the Securities Act. Each of the Registration Statement, any Rule 462(b) Registration Statement and any
post-effective amendment thereto, at the time it becomes effective, and as of each Applicable Time, if any, will comply in all material
respects with the Securities Act and did not and, as of each Applicable Time, if any, will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. The Prospectus,
as amended or supplemented, as of its date, did not and, as of each Applicable Time, if any, will not contain any untrue statement of
a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The representations and warranties set forth in the two immediately preceding sentences do
not apply to statements in or omissions from the Registration Statement, any Rule 462(b) Registration Statement, or any post-effective
amendment thereto, or the Prospectus, or any amendments or supplements thereto, made in reliance upon and in conformity with information
furnished to the Company in writing by the Sale Agent expressly for use therein. The parties hereto agree that the information
provided in writing by or on behalf of the Sales Agent expressly for use in the Registration Statement, any Rule 462(b) Registration
Statement, or any post-effective amendment thereto, or the Prospectus, or any amendments or supplements thereto, consists solely of the
material referred to in Schedule 5 hereto, as updated from time to time. There are no contracts or other documents required
to be described in the Prospectus or to be filed as exhibits to the Registration Statement which have not been described or filed as
required.
(c) S-3
Eligibility. At the time the Registration Statement and any Rule 462(b) Registration Statement was or will be filed with
the Commission, at the time the Registration Statement and any Rule 462(b) Registration Statement was or will be declared effective
by the Commission, and at the time the Company’s most recent Annual Report on Form 10-K was filed with the Commission, the
Company met or will meet the then applicable requirements for the use of Form S-3 under the Securities Act, including, but not limited
to, General Instruction I.B.1. of Form S-3, if and for so long as applicable. The Company is not a shell company (as defined in
Rule 405 under the Securities Act) and has not been a shell company for at least 12 calendar months previously and if it has been
a shell company at any time previously, has filed current Form 10 information (as defined in Instruction I.B.6 of Form S-3)
with the Commission at least 12 calendar months previously reflecting its status as an entity that is not a shell company.
(d) Distribution
of Offering Material by the Company. The Company has not distributed and will not distribute, prior to the completion of the Sales
Agent’s distribution of the Placement Shares, any offering material in connection with the offering and sale of the Placement Shares
other than the Prospectus or the Registration Statement.
(e) The
Equity Distribution Agreement. This Agreement has been duly authorized, executed and delivered by the Company, and constitutes a
valid, legal, and binding obligation of the Company. The Company has full corporate power and authority to enter into this Agreement
and to authorize, issue and sell the Placement Shares as contemplated by this Agreement. This Agreement conforms in all material respects
to the descriptions thereof in the Registration Statement and the Prospectus.
(f) Authorization
of the Placement Shares. The Placement Shares have been duly authorized for issuance and sale pursuant to this Agreement and, when
issued and delivered by the Company against payment therefor pursuant to this Agreement, will be validly issued, fully paid and nonassessable,
free and clear of any pledge, lien, encumbrance, security interest or other claim, and the issuance and sale of the Placement Shares
as contemplated hereby is not subject to any preemptive rights, rights of first refusal or other similar rights to subscribe for or purchase
the Placement Shares.
(g) No
Applicable Registration or Other Similar Rights. There are no persons with registration or other similar rights to have any equity
or debt securities registered for sale under the Registration Statement or included in the offering contemplated by this Agreement, except
for such rights as have been duly waived. No person has the right to act as an underwriter or as a financial advisor to the Company in
connection with the offer and sale of the Placement Shares hereunder, whether as a result of the filing or effectiveness of the Registration
Statement or the sale of the Placement Shares as contemplated hereby or otherwise.
(h) No
Material Adverse Change. Except as otherwise disclosed in the Prospectus, subsequent to the respective dates as of which information
is given in the Prospectus: (i) there has been no material adverse change in the condition (financial or otherwise), assets, rights,
operations, business, management or prospects of the Company and its subsidiaries, considered as one entity (any such change is called
a “Material Adverse Change”) or any development involving a prospective material adverse change, which, individually
or in the aggregate, has had or would reasonably be expected to result in a Material Adverse Change; (ii) the Company and its subsidiaries,
considered as one entity, have not incurred any material liability or obligation, indirect, direct or contingent, not in the ordinary
course of business nor entered into any material transaction or agreement not in the ordinary course of business; and (iii) there
has been no dividend or distribution of any kind declared, paid or made by the Company or, except for regular quarterly dividends publicly
announced by the Company or dividends paid to the Company or other subsidiaries, by any of its subsidiaries on any class of capital stock
or repurchase or redemption by the Company or any of its subsidiaries of any class of capital stock.
(i) Independent
Accountants. Ernst & Young AG, who have certified certain financial statements (which term as used in this Agreement includes
the related notes thereto) of the Company filed with the Commission or incorporated by reference in the Registration Statement and included
or incorporated by reference in the Prospectus, is (i) an independent registered public accounting firm as required by the Securities
Act, the Exchange Act, and the rules of the Public Company Accounting Oversight Board (“PCAOB”), (ii) in
compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X under
the Securities Act and (iii) a registered public accounting firm as defined by the PCAOB whose registration has not been suspended
or revoked and who has not requested such registration to be withdrawn.
(j) Preparation
of the Financial Statements. The consolidated financial statements of the Company, together with related notes and schedules as incorporated
by reference in the Registration Statement and the Prospectus, present fairly the financial position and the results of operations and
cash flows of the Company, at the indicated dates and for the indicated periods. Such financial statements and related schedules have
been prepared in accordance with U.S. generally accepted principles of accounting, consistently applied throughout the periods involved,
except as disclosed therein, and all adjustments necessary for a fair presentation of results for such periods have been made. The summary
financial and statistical data included or incorporated by reference in the Registration Statement and the Prospectus present fairly
the information shown therein and such data has been compiled on a basis consistent with the financial statements presented therein and
the books and records of the Company. The statistical, industry-related and market-related data included or incorporated by reference
in the Registration Statement and the Prospectus are based on or derived from sources which the Company reasonably and in good faith
believes are reliable and accurate, and the Company has obtained the written consent to the use of such data from such sources to the
extent required. The financial data set forth or incorporated by reference in the Registration Statement and Prospectus fairly present
the information shown therein and such data has been compiled on a basis consistent with the financial statements presented therein and
the books and records of the Company.
(k) XBRL.
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.
(l) Incorporation
and Good Standing of the Company and its Subsidiaries. The Company is a corporation duly incorporated and validly existing under
the laws of the State of Delaware and is in good standing under such laws. The Company has requisite corporate power to carry on its
business as described in the Prospectus. The Company is duly qualified to transact business and is in good standing in all jurisdictions
in which the conduct of its business requires such qualification; except where the failure to be so qualified or to be in good standing
would not result in a Material Adverse Change. The Company does not own or control, directly or indirectly, any corporation, association
or other entity other than the subsidiaries listed on Schedule 4. Each subsidiary is a limited liability company or
private company limited by shares duly formed and validly existing under the laws of the jurisdiction of its formation and is in good
standing under such laws. Each of the subsidiaries has requisite corporate power to carry on its business as described in the Prospectus.
Each of the subsidiaries is duly qualified to transact business and is in good standing in all jurisdictions in which the conduct of
its business requires such qualification; except where the failure to be so qualified or to be in good standing would not result in a
Material Adverse Change.
(m) Subsidiaries.
The Company does not currently own or control, directly or indirectly, any interest in any other corporation, partnership, trust, joint
venture, limited liability company, association, or other business entity other than the subsidiaries, if any, listed in Exhibit 21.1
to the Company’s most recent Annual Report on Form 10-K or otherwise disclosed to the Sales Agent.
(n) Capital
Stock Matters. The Common Stock conforms in all material respects to the description thereof contained in the Prospectus. The form
of certificates for the Common Stock conforms to the corporate law of the jurisdiction of the Company’s incorporation. All of the
issued and outstanding shares of Common Stock have been duly authorized and validly issued, are fully paid and nonassessable and have
been issued in compliance with federal and state securities laws. None of the outstanding shares of Common Stock were issued in violation
of any preemptive rights, rights of first refusal or other similar rights to subscribe for or purchase securities of the Company. There
are no authorized or outstanding options, warrants, preemptive rights, rights of first refusal or other rights to purchase, or equity
or debt securities convertible into or exchangeable or exercisable for, any capital stock of the Company or any of its subsidiaries other
than those disclosed in the Prospectus or in a document filed as an exhibit to or incorporated by reference into the Registration Statement.
All of the issued and outstanding capital stock of, or other ownership interests in, each subsidiary of the Company has been duly authorized
and validly issued, is fully paid and non-assessable and, except for directors’ qualifying shares, is owned by the Company, directly
or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim.
(o) Non-Contravention
of Existing Instruments; No Further Authorizations or Approvals Required. Neither the Company nor any of its subsidiaries is (i) in
breach or violation of its certificate or articles of incorporation, charter, bylaws, limited liability company agreement, certificate
or agreement of limited or general partnership, memorandum and articles of association, or other similar organizational documents, as
the case may be, of such entity, (ii) in breach of or in default (or, with the giving of notice or lapse of time or both, would
be in default) (“Default”) under any indenture, mortgage, loan or credit agreement, deed of trust, note, contract,
franchise, lease or other agreement, obligation, condition, covenant or instrument to which the Company or any of its subsidiaries is
a party or by which it or any of them may be bound or to which any of the property or assets of the Company or any of its subsidiaries
is subject (each, an “Existing Instrument”), or (iii) in violation of any statute, law, rule, regulation,
judgment, order or decree of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or any of its subsidiaries or any of their properties, as applicable, except, with respect to clauses (ii) and
(iii) only, for such breaches, violations or Defaults that would not, individually or in the aggregate, result in a Material Adverse
Change. The Company’s execution, delivery and performance of this Agreement and consummation of the transactions contemplated hereby
or by the Registration Statement and the Prospectus (including the issuance and sale of the Placement Shares and the use of the proceeds
from the sale of the Placement Shares as described in the Prospectus under the caption “Use of Proceeds”) (i) will not
result in any breach or violation of the certificate or articles of incorporation, charter, bylaws, limited liability company agreement,
certificate or agreement of limited or general partnership, memorandum and articles of association, or other similar organizational documents,
as the case may be, of the Company or any of its subsidiaries, (ii) will not conflict with or constitute a breach of, or Default
or a Debt Repayment Triggering Event (as defined below) under, or result in the creation or imposition of any lien, charge, claim or
encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to, or require the consent of any other party
to, any Existing Instrument, and (iii) will not result in any violation of any statute, law, rule, regulation, judgment, order or
decree applicable to the Company or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company or any of its subsidiaries or any of its or their properties, as applicable,
except, with respect to clauses (ii) and (iii) only, for such conflicts, breaches, Defaults, Debt Repayment Triggering
Events or violations that would not, individually or in the aggregate, result in a Material Adverse Change. As used herein, a “Debt
Repayment Triggering Event” means any event or condition which gives, or with the giving of notice or lapse of time or
both would give, the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf),
issued by the Company, the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company
or any of its Significant Subsidiaries. Each approval, consent, order, authorization, designation, declaration or filing by or with any
regulatory, administrative or other governmental body necessary in connection with the execution and delivery by the Company of this
Agreement and the performance of the Company of the transactions herein contemplated has been obtained or made and is in full force and
effect, except (i) such additional steps as may be required by the bylaws and rules of the Financial Industry Regulatory Authority, Inc.
(“FINRA”) or (ii) such additional steps as may be necessary to qualify the Common Stock for sale by the
Sales Agent under state securities or Blue Sky laws.
(p) No
Material Actions or Proceedings; Labor Disputes. There is no action, suit, claim or proceeding pending or, to the knowledge of the
Company, threatened against the Company before any court or administrative agency or otherwise (i) that is required to be described
in the Registration Statement or the Prospectus and are not so described or (ii) which, if determined adversely to the Company,
would reasonably be expected to result in a Material Adverse Change or prevent the consummation of the transactions contemplated hereby,
except as set forth in the Registration Statement and the Prospectus. The aggregate of all pending legal or governmental proceedings
to which the Company and its subsidiaries is a party or of which any of their property or assets is the subject which are not described
in the Prospectus, including ordinary routine litigation incidental to the business, could not reasonably be expected to result in a
Material Adverse Change. No labor dispute with the employees of the Company exists or, to the Company’s knowledge, is threatened
or imminent, and the Company is not aware of any existing or imminent labor dispute by the employees of any of its principal suppliers,
contractors or customers, that would, individually or in the aggregate, reasonably be expected to result in a Material Adverse Change.
None of the employees of the Company or any of its subsidiaries is represented by a union and, to the knowledge of the Company, no union
organizing activities are taking place. Neither the Company nor any of its subsidiaries has violated any federal, state or local law
or foreign law relating to the discrimination in hiring, promotion or pay of employees, nor any applicable wage or hour laws, or the
rules and regulations thereunder, or analogous foreign laws and regulations, which might, individually or in the aggregate, result
in a Material Adverse Change.
(q) All
Necessary Permits, etc. Each of the Company and its subsidiaries has all material licenses, certifications, permits, franchises,
approvals, clearances and other regulatory authorizations (“Permits”) from governmental authorities as are
necessary to (i) conduct its businesses as currently conducted and (ii) own, lease and operate its properties in the manner
described in the Prospectus. There is no claim or proceeding pending or, to the knowledge of the Company, threatened, involving the status
of or sanctions under any of the Permits. Each of the Company and its subsidiaries has fulfilled and performed all of its material obligations
with respect to the Permits, and the Company is not aware of the occurrence of any event which allows, or after notice or lapse of time
would allow, the revocation, termination, or other impairment of the rights of the Company or any of its subsidiaries under such Permit.
(r) Tax
Law Compliance. All United States federal income tax returns of the Company and its subsidiaries required by law to be filed have
been filed or extensions thereof have been requested, and all taxes shown by such returns or otherwise assessed, which are due and payable,
have been paid, except assessments that are being contested in good faith and as to which adequate reserves have been provided. Each
of the Company and its subsidiaries has filed all other tax returns that are required to have been filed by it pursuant to applicable
foreign, state, provincial, local or other law except insofar as the failure to file such returns would not result in a Material Adverse
Change, and has paid all taxes due pursuant to such returns or pursuant to any assessment received by the Company and its subsidiaries,
except for such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for
such taxes or assessments the nonpayment of which would not, individually or in the aggregate, result in a Material Adverse Change. The
charges, accruals and reserves on the books of the Company and its subsidiaries in respect of any income and corporation tax liability
for any years not finally determined are adequate to meet any assessments or re-assessments for additional tax for any years not finally
determined, except to the extent of any inadequacy that would not result in a Material Adverse Change. All material taxes which the Company
and its subsidiaries are required by law to withhold or to collect for payment have been duly withheld and collected and have been paid
to the appropriate governmental authority or agency or have been accrued, reserved against and entered on the books of the Company and
its subsidiaries. There are no transfer taxes or other similar fees or charges under Federal law or the laws of any state, or any political
subdivision thereof, required to be paid in connection with the execution and delivery of this Agreement or the issuance by the Company
or sale by the Sales Agent of the Placement Shares, acting as agent and/or principal for the Company.
(s) Company
Not an “Investment Company”. The Company is not, and will not be, either after receipt of payment for the Placement Shares
or after the application of the proceeds therefrom as described under “Use of Proceeds” in the Registration Statement or
the Prospectus, required to register as an “investment company” under the Investment Company Act of 1940, as amended (the
“Investment Company Act”).
(t) Insurance.
Except as otherwise described in the Prospectus, the Company carries, or is covered by, insurance in such amounts and covering such risks
as is generally considered adequate for the conduct of its business and the value of its properties and as is customary for companies
engaged in similar industries. All policies of insurance insuring the Company or its business, assets, employees, officers and directors
are in full force and effect, and the Company is in compliance with the terms of such policies in all material respects. There are no
claims by the Company under any such policy or instrument as to which an insurance company is denying liability or defending under a
reservation of rights clause. The Company has no reason to believe that it will not be able (i) to renew its existing insurance
coverage as and when such policies expire or (ii) to obtain comparable coverage from similar institutions as may be necessary or
appropriate to conduct its business as now conducted and at a cost that would not result in a Material Adverse Change.
(u) No
Price Stabilization or Manipulation. Neither the Company, nor any of its subsidiaries, nor any of its or their respective directors,
officers or, to the knowledge of the Company, controlling persons has taken, directly or indirectly, any action designed to or that might
reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Common Stock.
(v) Related
Party Transactions. There are no business relationships or related-party transactions involving the Company or any subsidiary or
any other person required to be described in the Prospectus which have not been described as required.
(w) Exchange
Act Compliance. The documents incorporated or deemed to be incorporated by reference in the Registration Statement, the Prospectus
or any amendment or supplement thereto, at the time they were or hereafter are filed with the Commission under the Exchange Act, complied
and will comply in all material respects with the requirements of the Exchange Act, and, when read together with the other information
in the Prospectus, at each Point of Sale and each Settlement Date, will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they were made, not misleading.
(x) Free
Writing Prospectuses. The Company represents and warrants to the Sales Agent that neither it nor any of its agents or representatives
(other than the Sales Agent in its capacity as such) has made any offer relating to the Placement Shares that would constitute a “free
writing prospectus” as defined in Rule 405 under the Securities Act and that it agrees with the Sales Agent that it will not
make any offer relating to the Placement Shares that would constitute a “free writing prospectus” as defined in Rule 405
under the Securities Act.
(y) Compliance
with Environmental Laws. To its knowledge, the Company is not in violation of any statute, any rule, regulation, decision or order
of any governmental agency or body or any court, domestic or foreign, relating to the use, disposal or release of hazardous chemicals,
toxic substances or radioactive and biological materials or relating to the protection or restoration of the environment or human exposure
to hazardous chemicals, toxic substances or radioactive and biological materials (collectively, “Environmental Laws”).
The Company neither owns nor, to its knowledge, operates any real property contaminated with any substance that is subject to any Environmental
Laws, is not liable for any off-site disposal or contamination pursuant to any Environmental Laws, nor is it subject to any claim relating
to any Environmental Laws, which violation, contamination, liability or claim would individually or in the aggregate result in a Material
Adverse Change; and the Company is not aware of any pending investigation which might lead to such a claim.
(z) Intellectual
Property. To the Company’s knowledge, except as otherwise disclosed in the Registration Statement and the Prospectus, the Company
owns, or has obtained valid and enforceable licenses for, the patent applications, patents, trademarks, trade names, service names, copyrights,
trade secrets and other intellectual property described in the Registration Statement and the Prospectus as being owned or licensed by
them (collectively, “Intellectual Property”). To the Company’s knowledge, except as otherwise disclosed
in the Registration Statement and the Prospectus, the conduct of its businesses in the manner described in the Registration Statement
and the Prospectus does not and will not infringe or misappropriate rights of a third party, except any such infringement or misappropriation
as would not, individually or in the aggregate, result in a Material Adverse Change. To the Company’s knowledge, the Intellectual
Property owned by the Company has not been adjudged by a court of competent jurisdiction to be invalid or unenforceable, in whole or
in part. To the Company’s knowledge, except as otherwise disclosed in the Registration Statement and the Prospectus: (i) there
are no third parties who have rights to any Intellectual Property, except for rights of third-party licensors with respect to Intellectual
Property that are disclosed in the Registration Statement and the Prospectus as licensed to the Company; and (ii) there is no infringement
by third parties of any Intellectual Property except any such infringement as would not, individually or in the aggregate, result in
a Material Adverse Change. Except as otherwise disclosed in the Registration Statement and the Prospectus, there is no pending or, to
the Company’s knowledge, threatened action, suit, proceeding or claim by others: (A) challenging the Company’s rights
in or to any Intellectual Property; (B) challenging the validity, enforceability or scope of any Intellectual Property; or (C) asserting
that the Company infringes or otherwise violates, or would, upon the commercialization of any product or service described in the Registration
Statement or the Prospectus as under development, infringe or violate, any patent, trademark, trade name, service name, copyright, trade
secret or other proprietary intellectual property rights of others, except in each case (A), (B), and (C), any such action, suit, proceeding
or claim would not, individually or in the aggregate, result in a Material Adverse Change. To the Company’s knowledge, except as
otherwise disclosed in the Registration Statement and the Prospectus, the Company has complied with the material terms of each agreement
pursuant to which Intellectual Property has been licensed to the Company, and all such agreements are in full force and effect, except
to the extent anything inconsistent with the foregoing would not, individually or in the aggregate, result in a Material Adverse Change.
To the Company’s knowledge, except as otherwise disclosed in the Registration Statement and the Prospectus, there are no material
defects in any of the patents or patent applications included in the Intellectual Property. To the Company’s knowledge, except
as otherwise disclosed in the Registration Statement and the Prospectus, the Company has taken all reasonable steps to protect, maintain
and safeguard its Intellectual Property, including the execution of appropriate nondisclosure, confidentiality agreements and invention
assignment agreements and invention assignments with their employees, and no employee of the Company is in or has been in violation of
any term of any employment contract, patent disclosure agreement, invention assignment agreement, nondisclosure agreement, or any restrictive
covenant to or with a former employer where the basis of such violation relates to the Company Intellectual Property and such employee’s
employment with the Company, except anything inconsistent with the foregoing that would not, individually or in the aggregate, result
in a Material Adverse Change. To the Company’s knowledge, except as otherwise disclosed in the Registration Statement and the Prospectus,
the Company’s patent counsel has complied or is in the process of complying with its duty of candor and good faith as required
by the United States Patent and Trademark Office during the prosecution of the United States patents and patent applications included
in the Company owned Intellectual Property. To the Company’s knowledge, except as otherwise disclosed in the Registration Statement
and the Prospectus, none of the Company owned Intellectual Property employed by the Company has been obtained or is being used by the
Company in violation of any contractual obligation binding on the Company or any of its officers, directors or employees or otherwise
in violation of the rights of any persons, except anything inconsistent with the foregoing that would not, individually or in the aggregate,
result in a Material Adverse Change.
(aa) Brokers.
Other than the Sales Agent, there is no broker, finder or other party that is entitled to receive from the Company any brokerage or finder’s
fee or other fee or commission as a result of any transactions contemplated by this Agreement.
(bb) No
Outstanding Loans or Other Indebtedness. There are no outstanding loans, advances (except normal advances for business expenses in
the ordinary course of business) or guarantees of indebtedness by the Company to or for the benefit of any of the officers or directors
of the Company or any of their respective family members, except as disclosed in the Prospectus. The Company has not directly or indirectly
extended or maintained credit, arranged for the extension of credit, or renewed an extension of credit, in the form of a personal loan
to or for any director or executive officer of the Company.
(cc) No
Reliance. The Company has not relied upon the Sales Agent or legal counsel for the Sales Agent for any legal, tax or accounting advice
in connection with the offering and sale of the Placement Shares.
(dd) Broker-Dealer
Status. Neither the Company nor any of its related entities (i) is required to register as a “broker” or “dealer”
in accordance with the provisions of the Exchange Act or (ii) directly or indirectly through one or more intermediaries, controls
or is a “person associated with a member” or “associated person of a member” (within the meaning of Article I
of the NASD Manual administered by FINRA). To the Company’s knowledge, there are no affiliations or associations between any member
of FINRA and any of the Company’s officers, directors or 10% or greater security holders, except as set forth in the Registration
Statement. All of the information (including, but not limited to, information regarding affiliations, security ownership and trading
activity) provided to the Sales Agent or its counsel by the Company, its officers and directors and the holders of any securities (debt
or equity) or warrants, options or rights to acquire any securities of the Company in connection with the filing to be made and other
supplemental information to be provided to FINRA pursuant to Rule 5110 of FINRA in connection with the transactions contemplated
by this Agreement is true, complete and correct, and copies of any Company filings required to be filed with FINRA have been filed
with the Commission or delivered to the Sales Agent for filing with FINRA.
(ee) Compliance
with Laws. The Company has not been advised, and has no reason to believe, that it and each of its subsidiaries are not conducting
business in compliance with all applicable laws, rules and regulations of the jurisdictions in which it is conducting business,
except where failure to be so in compliance would not result in a Material Adverse Change. The Company maintains and periodically reviews
written policies and procedures reasonably designed to keep the Company and its employees conduct in connection with the Company’s
business in compliance with all applicable laws, rules and regulations of the jurisdictions in which it is conducting business.
(ff) Certain
Regulations. The studies, tests and clinical trials conducted by or on behalf of the Company and its subsidiaries were and, if still
pending, are being conducted in compliance with experimental protocols, procedures and controls pursuant to accepted professional scientific
standards and all applicable laws and authorizations, including, without limitation, the Federal Food, Drug and Cosmetic Act and the
rules and regulations promulgated thereunder, except where the failure to be in compliance could not reasonably be expected to result
in a Material Adverse Change; the descriptions of the results of such studies, tests and clinical trials contained in the Registration
Statement and the Prospectus are accurate and complete in all material respects and fairly present the data derived from such studies,
tests and clinical trials; except to the extent disclosed in the Registration Statement and the Prospectus, to the knowledge of the Company,
there are no studies, tests or clinical trials, the results of which the Company believes reasonably call into question the study, test,
or clinical trial results described or referred to in the Registration Statement and the Prospectus when viewed in the context in which
such results are described; and, except to the extent disclosed in the Registration Statement and the Prospectus, the Company and its
subsidiaries have not received any notices or correspondence from any applicable governmental authority requiring the termination, suspension
or material modification of any studies, tests or clinical trials conducted by or on behalf of the Company or its subsidiaries.
(gg) FDA
Regulations. The Company and its subsidiaries: (A) are and at all times have been in compliance with all statutes, rules, or
regulations, including but not limited to those administered by the United States Food and Drug Administration (“FDA”),
the European Medicines Agency (“EMA”) and similar governmental authorities applicable to the ownership, testing,
development, manufacture, packaging, processing, use, distribution, marketing, labeling, promotion, sale, offer for sale, storage, import,
export or disposal of any products being developed, manufactured or distributed by the Company or its subsidiaries (“Applicable
Laws”), except as could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Change;
(B) have not received any warning letter or other correspondence or notice from the FDA, EMA or any other governmental authority
alleging or asserting material noncompliance with any Applicable Laws or any licenses, certificates, approvals, clearances, authorizations,
permits and supplements or amendments thereto required by any such Applicable Laws (“Authorizations”); (C) possess
all material Authorizations and such Authorizations are valid and in full force and effect and are not in material violation of any term
of any such Authorizations; (D) have not received notice of any claim, action, suit, proceeding, hearing, enforcement, investigation,
arbitration or other action from any governmental authority or third party alleging that any product operation or activity is in material
violation of any Applicable Laws or Authorizations and have no knowledge that any such governmental authority or third party is considering
any such claim, litigation, arbitration, action, suit, investigation or proceeding; (E) have not received notice that any governmental
authority has taken, is taking or intends to take action to limit, suspend, modify or revoke any Authorizations and have no knowledge
that any such governmental authority is considering such action; (F) have filed, obtained, maintained or submitted all material
reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments as required by any Applicable
Laws or Authorizations and that all such reports, documents, forms, notices, applications, records, claims, submissions and supplements
or amendments were complete and correct on the date filed (or were corrected or supplemented by a subsequent submission); and (G) have
not, either voluntarily or involuntarily, initiated, conducted, or issued or caused to be initiated, conducted or issued, any recall,
market withdrawal or replacement, safety alert, or other notice or action relating to the alleged lack of safety or efficacy of any product
or any alleged product defect or violation and, to the Company’s knowledge, no third party has initiated, conducted or intends
to initiate any such notice or action.
(hh) Sarbanes–Oxley
Act. There is and has been no failure on the part of the Company or any of the Company’s directors or officers, in their capacities
as such, to comply in all material respects with any applicable provision of the Sarbanes-Oxley Act of 2002 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.
(ii) Disclosure
Controls and Procedures. The Company has established and maintains “disclosure controls and procedures” (as defined in
Rules 13a–15(e) and 15d–15(e) of the Exchange Act); the Company’s “disclosure controls and procedures”
are reasonably designed to ensure that all information (both financial and non–financial) required to be disclosed by the Company
in the reports that it will file or furnish under the Exchange Act is recorded, processed, summarized and reported within the time periods
specified in the rules and regulations of the Commission, and that all such information is accumulated and communicated to the Company’s
management as appropriate to allow timely decisions regarding required disclosure and to make the certifications of the Chief Executive
Officer and Chief Financial Officer of the Company required under the Exchange Act with respect to such reports.
(jj) Company’s
Accounting System. The Company maintains a system of internal accounting controls sufficient to provide reasonable assurances that
(i) transactions are executed in accordance with management’s general or specific authorization; (ii) transactions are
recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(kk) ERISA.
The Company is in compliance in all material respects with all presently applicable provisions of the Employee Retirement Income Security
Act of 1974, as amended, including the regulations and published interpretations thereunder (“ERISA”); no “reportable
event” (as defined in ERISA) has occurred with respect to any “pension plan” (as defined in ERISA) for which the Company
would have any liability; the Company has not incurred and does not expect to incur liability under (i) Title IV of ERISA with respect
to termination of, or withdrawal from, any “pension plan” or (ii) Sections 412 or 4971 of the Internal Revenue
Code of 1986, as amended, including the regulations and published interpretations thereunder (the “Code”);
and each “pension plan” for which the Company would have any liability that is intended to be qualified under Section 401(a) of
the Code is so qualified in all material respects and nothing has occurred, whether by action or by failure to act, which would cause
the loss of such qualification.
(ll) Contracts
and Agreements. There are no contracts, agreements, instruments or other documents that are required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits thereto which have not been so described in all material respects and filed as
required by Item 601(b) of Regulation S-K under the Securities Act. The copies of all contracts, agreements, instruments and other
documents (including governmental licenses, authorizations, permits, consents and approvals and all amendments or waivers relating to
any of the foregoing) that have been furnished to the Sales Agent or its counsel are complete and genuine and include all material collateral
and supplemental agreements thereto. All contracts and agreements between the Company and third parties expressly referenced in the Registration
Statement or the Prospectus are legal, valid and binding obligations of the Company, enforceable against the Company in accordance with
their respective terms, except as rights to indemnity thereunder (as applicable) may be limited by federal or state securities laws and
except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors
generally, and subject to general principles of equity.
(mm) Title
to Properties. Except as set forth in the Registration Statement and the Prospectus, the Company and each of its subsidiaries have
good and marketable title to all of the properties and assets reflected as owned in the financial statements referred to in Section 6(j) above
(or elsewhere in the Registration Statement and the Prospectus), in each case free and clear of any security interests, mortgages, liens,
encumbrances, equities, claims and other defects, except such as do not materially and adversely affect the value of such property or
assets and do not materially interfere with the use made or proposed to be made of such property by the Company or any subsidiary. The
material real property, improvements, equipment and personal property held under lease by the Company or any of its subsidiaries are
held under valid and enforceable leases, with such exceptions as are not material and do not materially interfere with the use made or
proposed to be made of such real property, improvements, equipment or personal property by the Company or such subsidiary. The Company
and each of its subsidiaries have such consents, easements, rights-of-way or licenses from any person (“rights-of-way”)
as are necessary to enable the Company and each of its subsidiaries to conduct its business in the manner described in the Registration
Statement and the Prospectus, and except for such rights-of-way the lack of which would not, individually or in the aggregate, result
in a Material Adverse Change.
(nn) No
Unlawful Contributions or Other Payments. No payments or inducements have been made or given, directly or indirectly, to any federal
or local official or candidate for, any federal or state office in the United States or foreign offices by the Company or any of its
officers or directors, or, to the knowledge of the Company, by any of its employees or agents or any other person in connection with
any opportunity, contract, permit, certificate, consent, order, approval, waiver or other authorization relating to the business of the
Company, except for such payments or inducements as were lawful under applicable laws, rules and regulations. Neither the Company,
nor, to the knowledge of the Company, any director, officer, agent, employee or other person associated with or acting on behalf of the
Company, (i) has used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating
to political activity; (ii) made any direct or indirect unlawful payment to any government official or employee from corporate funds;
or (iii) made any bribe, unlawful rebate, payoff, influence payment, kickback or other unlawful payment in connection with the business
of the Company.
(oo) Foreign
Corrupt Practices Act. None of the Company, any subsidiary or, to the knowledge of the Company, any director, officer, agent, employee,
affiliate or other person acting on behalf of the Company or any of its subsidiaries, is aware of or has taken any action, directly or
indirectly, that would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and
regulations thereunder (collectively, the “FCPA”), including, without limitation, making use of the mails or
any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of
the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign
official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign
political office, in contravention of the FCPA. The Company and its subsidiaries have conducted their respective businesses in compliance
with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue
to ensure, continued compliance therewith.
(pp) 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 of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money
laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or
guidelines, issued, administered or enforced by any governmental agency (collectively, the “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 Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(qq) OFAC.
None of the Company, any subsidiary or, to the knowledge of the Company, any director, officer, agent, employee, affiliate or person
acting on behalf of the Company or any of its subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign
Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will not directly or indirectly use
the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner
or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered
by OFAC.
(rr) Exchange
Listing. The Common Stock is currently listed on the Exchange under the trading symbol “GANX”. Except as disclosed in
the Prospectus, the Company has not, in the twelve (12) months preceding the date the first Placement Notice is given hereunder, received
notice from the Exchange to the effect that the Company is not in compliance with the listing or maintenance requirements. Except as
disclosed in the Prospectus, the Company has no reason to believe that it will not in the foreseeable future continue to be in compliance
with all such listing and maintenance requirements.
(ss) Margin
Rules. Neither the issuance, sale and delivery of the Placement Shares nor the application of the proceeds thereof by the Company
as described in the Registration Statement and the Prospectus will violate Regulation T, U or X of the Board of Governors of the Federal
Reserve System or any other regulation of such Board of Governors.
(tt) Continuous
Offering Agreements. Except for this Agreement, the Company is not party to any other equity distribution or sales agency agreement
or other similar arrangement with any other agent or any other representative in respect of any “at the market offering”
or other continuous equity offering transaction.
(uu) No
Material Defaults. Neither the Company nor any of its subsidiaries has defaulted on any installment on indebtedness for borrowed
money or on any rental on one or more long-term leases, which defaults, individually or in the aggregate, could reasonably be expected
to result in a Material Adverse Change.
(vv) Cybersecurity.
Except as otherwise disclosed in the Registration Statement and the Prospectus or would not, individually or in the aggregate, reasonably
be expected to result in a Material Adverse Change, the Company’s 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 as currently conducted, free
and clear of all material bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants. The Company has implemented
and maintained commercially reasonable physical, technical and administrative controls, policies, procedures, and safeguards to maintain
and protect their material confidential information and the integrity, continuous operation, redundancy and security of all IT Systems
and data, including “Personal Data,” used in connection with their businesses. “Personal Data”
means (i) a natural person’s name, street address, telephone number, e-mail address, photograph, social security number or
tax identification number, driver’s license number, passport number, credit card number, bank information, or customer or account
number; (ii) any information which would qualify as “personally identifying information” under the Federal Trade Commission
Act, as amended; (iii) “personal data” as defined by GDPR; (iv) any information which would qualify as “protected
health information” under the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information
Technology for Economic and Clinical Health Act (collectively, “HIPAA”); and (v) any other piece of information
that allows the identification of such natural person, or his or her family, or permits the collection or analysis of any data related
to an identified person’s health or sexual orientation. To the Company’s knowledge, except as otherwise disclosed in the
Registration Statement and the Prospectus, 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.
(ww) Compliance
with Privacy Data. Except as otherwise disclosed in the Registration Statement and the Prospectus, the Company is, and since June 1,
2018 has been, in material compliance with applicable state, federal and foreign data privacy and security laws and regulations, including,
to the extent applicable, the Health Insurance Portability and Accountability Act of 1996, as amended (collectively, “HIPAA”),
and the European Union General Data Protection Regulation (EU 2016/679) (collectively, the “Privacy Laws”). To the
extent required by the Privacy Laws, the Company has in place, complies in all material respects with, and takes commercially reasonable
steps reasonably designed to ensure compliance in all material respects with their policies and procedures relating to data privacy and
security and the collection, storage, use, disclosure, and handling of Personal Data (the “Policies”). The
Company has made all disclosures to users or customers required by the Privacy Laws, and none of such disclosures made or contained in
any Policy have, to the knowledge of the Company, been inaccurate or in violation of any Privacy Laws. Except as otherwise disclosed
in the Registration Statement and the Prospectus, the Company has not: (i) has received written notice of any actual or potential
liability under or relating to, or actual or potential violation of, any of the Privacy Laws, and has no knowledge of any event or condition
that would reasonably be expected to result in any such notice; (ii) is currently conducting or paying for, in whole or in part,
any investigation, remediation, or other corrective action pursuant to any Privacy Law; or (iii) is a party to any order, decree,
or agreement that imposes any obligation or liability by any governmental or regulatory authority under any Privacy Law.
Any certificate signed by an officer of the Company
and delivered to the Sales Agent or to counsel for the Sales Agent pursuant to or in connection with this Agreement shall be deemed to
be a representation and warranty by the Company to the Sales Agent as to the matters set forth therein.
The Company acknowledges that the Sales Agent
and, for purposes of the opinions to be delivered pursuant to Section 7 hereof, counsel to the Company and counsel to the
Sales Agent, will rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to such reliance.
7. Covenants
of the Company. The Company covenants and agrees with the Sales Agent that:
(a) Registration
Statement Amendments. After the date of this Agreement and during any period in which a Prospectus relating to any Placement Shares
is required to be delivered by the Sales Agent under the Securities Act (including in circumstances where such requirement may be satisfied
pursuant to Rule 172 under the Securities Act), (i) the Company will notify the Sales Agent promptly of the time when any subsequent
amendment to the Registration Statement, other than documents incorporated by reference, has been filed with the Commission and/or has
become effective or any subsequent supplement to the Prospectus has been filed and of any request by the Commission for any amendment
or supplement to the Registration Statement or Prospectus or for additional information, (ii) the Company will prepare and file
with the Commission, promptly upon the Sales Agent’s written request, any amendments or supplements to the Registration Statement
or Prospectus that, in the Sales Agent’s reasonable opinion, may be necessary or advisable in connection with the distribution
of the Placement Shares by the Sales Agent (provided, however, that the failure of the Sales Agent to make such request
shall not relieve the Company of any obligation or liability hereunder, or affect the Sales Agent’s right to rely on the representations
and warranties made by the Company in this Agreement, and provided, further, that the only remedy the Sales Agent shall
have with respect to the failure to make such filing shall be to cease making sales under this Agreement until such amendment or supplement
is filed); (iii) the Company will not file any amendment or supplement to the Registration Statement or Prospectus, other than documents
incorporated by reference, relating to the Placement Shares or a security convertible or exchangeable or exercisable into the Placement
Shares unless a copy thereof has been submitted to the Sales Agent within a reasonable period of time before the filing and the Sales
Agent has not reasonably objected in writing thereto (provided, however, that (A) the failure of the Sales Agent to
make such objection shall not relieve the Company of any obligation or liability hereunder, or affect the Sales Agent’s right to
rely on the representations and warranties made by the Company in this Agreement, and (B) the Company has no obligation to provide
the Agent any advance copy of such filing or to provide the Agent an opportunity to object to such filing if the filing does not name
the Agent or does not relate to the transaction described herein; provided, further, that the only remedy the Sales Agent
shall have with respect to the failure by the Company to obtain such consent shall be to cease making sales under this Agreement); (iv) the
Company will furnish to the Sales Agent at the time of filing thereof a copy of any document that upon filing is deemed to be incorporated
by reference into the Registration Statement or Prospectus, except for those documents available via EDGAR; (v) the Company will
cause each amendment or supplement to the Prospectus relating to the Placement Shares, other than documents incorporated by reference,
to be filed with the Commission as required pursuant to the applicable paragraph of Rule 424(b) of the Securities Act (without
reliance on Rule 424(b)(8) of the Securities Act) or, in the case of any documents incorporated by reference, to be filed with
the Commission as required pursuant to the Exchange Act, within the time period prescribed.
(b) Notice
of Commission Stop Orders. The Company will advise the Sales Agent, promptly after it receives notice or obtains knowledge thereof,
of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any notice objecting
to, or other order preventing or suspending the use of, the Prospectus, of the suspension of the qualification of the Placement Shares
for offering or sale in any jurisdiction, or of the initiation of any proceeding for any such purpose or any examination pursuant to
Section 8(e) of the Securities Act, or if the Company becomes the subject of a proceeding under Section 8A of the Securities
Act in connection with the offering of the Placement Shares; and it will promptly use its commercially reasonable efforts to prevent
the issuance of any stop order or to obtain its withdrawal if such a stop order should be issued. Until such time as any stop order is
lifted, the Sales Agent shall cease making offers and sales under this Agreement.
(c) Delivery
of Prospectus; Subsequent Changes. During any period in which a Prospectus relating to the Placement Shares is required to be delivered
by the Sales Agent under the Securities Act with respect to a pending sale of the Placement Shares (including in circumstances where
such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Company will comply with all requirements
imposed upon it by the Securities Act, as from time to time in force, and to file on or before their respective due dates all reports
and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Sections 13(a),
13(c), 14, 15(d) or any other provision of or under the Exchange Act. If during such period any event occurs as a result of which
the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances then existing, not misleading, or if during such period it
is necessary to amend or supplement the Registration Statement or Prospectus to comply with the Securities Act, the Company will promptly
notify the Sales Agent to suspend the offering of Placement Shares during such period and the Company will promptly amend or supplement
the Registration Statement or Prospectus (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
(d) Listing
of Placement Shares. During any period in which the Prospectus relating to the Placement Shares is required to be delivered by the
Sales Agent under the Securities Act with respect to a pending sale of the Placement Shares (including in circumstances where such requirement
may be satisfied pursuant to Rule 172 under the Securities Act), the Company will use its reasonable best efforts to cause the Placement
Shares to be listed on the Exchange and to qualify the Placement Shares for sale under the securities laws of such jurisdictions as the
Sales Agent reasonably designates and to continue such qualifications in effect so long as required for the distribution of the Placement
Shares; provided, however, that the Company shall not be required in connection therewith to qualify as a foreign corporation
or dealer in securities or file a general consent to service of process in any jurisdiction.
(e) Delivery
of Registration Statement and Prospectus. The Company will furnish to the Sales Agent and its counsel (at the reasonable expense
of the Company) copies of (i) the Registration Statement and the Prospectus (including all documents incorporated by reference therein)
filed with the Commission on the date of this Agreement and (ii) all amendments and supplements to the Registration Statement or
Prospectus that are filed with the Commission during any period in which a Prospectus relating to the Placement Shares is required to
be delivered by the Sales Agent under the Securities Act (including all documents filed with the Commission during such period that are
deemed to be incorporated by reference therein), in each case as soon as reasonably practicable and in such quantities as the Sales Agent
may from time to time reasonably request and, at the Sales Agent’s request, will also furnish copies of the Prospectus to each
exchange or market on which sales of the Placement Shares may be made; provided, however, that the Company shall not be required
to furnish any document (other than the Prospectus) to the Sales Agent to the extent such document is available on EDGAR.
(f) Earnings
Statement. To the extent not otherwise available on EDGAR, the Company will make generally available to its security holders as soon
as practicable, but in any event not later than fifteen (15) months after the end of the Company’s current fiscal quarter, an earnings
statement of the Company and its subsidiaries (which need not be audited) covering a 12-month period that complies with Section 11(a) and
Rule 158 of the Securities Act. The terms “earnings statement” and “make generally available to its security holders”
shall have the meanings set forth in Rule 158 under the Securities Act.
(g) Expenses.
The Company, whether or not the transactions contemplated hereunder are consummated or this Agreement is terminated in accordance with
the provisions of Section 11 hereunder, will pay the following expenses all incident to the performance of its obligations
hereunder, including, but not limited to, reasonable expenses relating to (i) the preparation, printing and filing of the Registration
Statement and each amendment and supplement thereto, of each Prospectus and of each amendment and supplement thereto, (ii) the preparation,
issuance and delivery of the Placement Shares, including any stock or other transfer taxes and any stamp or other duties payable upon
the sale, issuance or delivery of the Placement Shares to the Sales Agent, (iii) the fees and disbursements of the counsel, accountants
and other advisors to the Company in connection with the transactions contemplated by this Agreement; (iv) the qualification of
the Placement Shares under securities laws in accordance with the provisions of Section 7(d) of this Agreement, including
filing fees (provided, however, that any fees or disbursements of counsel for the Sales Agent in connection therewith shall
be paid by the Sales Agent except as set forth in (ix) below), (v) the printing and delivery to the Sales Agent of copies of
the Prospectus and any amendments or supplements thereto, and of this Agreement, (vi) the fees and expenses incurred in connection
with the listing or qualification of the Placement Shares for trading on the Exchange, (vii) the fees and expenses of the transfer
agent or registrar for the Common Stock; (viii) filing fees and expenses, if any, of the Commission and the FINRA Corporate Financing
Department (including, with respect to any required review by FINRA, the documented fees and expenses of the Sales Agent’s counsel);
and (ix) the Company shall reimburse the Sales Agent for (a) all of the Company’s costs and expenses paid by the Sales
Agent incident to the Offering, (b) all documented out-of-pocket costs and expenses incident to the performance of the obligations
of the Sales Agent under this Agreement (including, without limitation, the reasonable and documented fees and expenses of the Sales
Agent’s outside counsel), provided, that reimbursable expenses in connection with the establishment of this at-the-market
offering and the filing of the related prospectus supplement shall be capped at $60,000, and (c) thereafter, reasonable documented
out-of-pocket expenses for due diligence on a quarterly basis not to exceed $10,000 per quarter in connection with an Annual Representation
Date (as defined below) and not to exceed $7,500 per quarter in connection with a Quarterly Representation Date (as defined below).
(h) Use
of Proceeds. The Company will use the Net Proceeds as described in the Prospectus in the section entitled “Use of Proceeds.”
(i) Notice
of Other Sales. During the pendency of any Placement Notice given hereunder, the Company shall provide the Sales Agent notice as
promptly as reasonably possible before it offers to sell, contracts to sell, sells, grants any option to sell or otherwise disposes of
any shares of Common Stock (other than Placement Shares offered pursuant to the provisions of this Agreement) or securities convertible
into or exchangeable for Common Stock, warrants or any rights to purchase or acquire Common Stock; provided, that such notice
shall not be required in connection with the (i) issuance, grant or sale of Common Stock, options or other rights to purchase or
otherwise acquire Common Stock, or Common Stock issuable upon the exercise of options or other equity awards, in each case granted pursuant
to any stock option, stock bonus or other stock or compensatory plan or arrangement, whether now in effect or hereafter implemented,
(ii) issuance of securities in connection with an acquisition, merger or sale or purchase of assets which is described at the time
of issuance in the Registration Statement and the Prospectus, (iii) issuance or sale of Common Stock upon conversion of securities
or the exercise of warrants, options or other rights then in effect or outstanding, and disclosed in filings by the Company available
on EDGAR or otherwise in writing to the Sales Agent, and (iv) issuance or sale of Common Stock pursuant to any dividend reinvestment
and stock purchase plan that the Company has in effect or may adopt from time to time, provided that the implementation of such
new plan is disclosed to the Sales Agent in advance. If the Company notifies the Sales Agent under this Section 7(i) of
a proposed sale of shares of Common Stock or Common Stock equivalents, the Sales Agent may suspend any offers and sales of Securities
under this Agreement for a period of time deemed appropriate by the Sales Agent.
(j) Change
of Circumstances. The Company will, at any time during a fiscal quarter in which the Company intends to tender a Placement Notice
or sell Placement Shares, advise the Sales Agent promptly after it shall have received notice or obtained knowledge thereof, of any information
or fact that would alter or affect in any material respect any opinion, certificate, letter or other document provided to the Sales Agent
pursuant to this Agreement.
(k) Due
Diligence Cooperation. During the Term of this Agreement, the Company will cooperate with any reasonable due diligence review conducted
by the Sales Agent or its agents in connection with the transactions contemplated hereby, including, without limitation, providing information
and making available documents and senior corporate officers, during regular business hours and at the Company’s principal offices,
as the Sales Agent may reasonably request.
(l) Required
Filings Relating to Placement of Placement Shares. The Company shall set forth in each Annual Report on Form 10-K and Quarterly
Report on Form 10-Q filed by the Company with the Commission in respect of any quarter in which sales of Placement Shares were made
by or through the Sales Agent under this Agreement, with regard to the relevant period, the amount of Placement Shares sold to or through
the Sales Agent, the Net Proceeds to the Company and the compensation payable by the Company to the Sales Agent with respect to such
sales of Placement Shares. To the extent that the filing of a prospectus supplement to the Prospectus with the Commission with respect
to any sales of Placement Shares becomes required under Rule 424(b) under the Securities Act, the Company agrees that, on or
before such dates as the Securities Act shall require, the Company will (i) file a prospectus supplement to the Prospectus with
the Commission under the applicable paragraph of Rule 424(b) under the Securities Act, which prospectus supplement will set
forth, with regard to the relevant period, the amount of Placement Shares sold to or through the Sales Agent, the Net Proceeds to the
Company and the compensation payable by the Company to the Sales Agent with respect to such Placement Shares, and (ii) deliver such
number of copies of each such prospectus supplement to each exchange or market on which such sales were effected as may be required by
the rules or regulations of such exchange or market; provided, that, unless a prospectus supplement containing such information
is required to be filed under the Securities Act, the requirement of this Section 7(l) may be satisfied by Company’s
inclusion in the Company’s Form 10-K or Form 10-Q, as applicable, of the number or amount of Placement Shares sold through
the Agent, the Net Proceeds to the Company and the compensation payable by the Company to the Agent with respect to such Placement Shares
during the relevant period. The Company shall afford the Sales Agent and its counsel with a reasonable opportunity to review and comment
upon, shall consult with the Sales Agent and its counsel on the form and substance of, and shall give due consideration to all such comments
from the Sales Agent or its counsel on, any such filing prior to the issuance, filing or public disclosure thereof; provided, however,
that the Company shall not be required to submit for review (A) any portion of any periodic reports filed with the Commission under
the Exchange Act other than the specific disclosure relating to any sales of Placement Shares and (B) any disclosure contained in
periodic reports filed with the Commission under the Exchange Act if it shall have previously provided the same disclosure for review
in connection with a previous filing.
(m) Representation
Dates; Certificate. On or prior to the date the first Placement Notice is given hereunder and each time the Company subsequently
thereafter (i) amends or supplements the Registration Statement or the Prospectus relating to the Placement Shares (other than (A) a
prospectus supplement filed in accordance with Section 7(l) of this Agreement or (B) a supplement or amendment
that relates to an offering of securities other than the Placement Shares) by means of a post-effective amendment, sticker, or supplement
but not by means of incorporation of document(s) by reference to the Registration Statement or the Prospectus relating to the Placement
Shares; (ii) files an annual report on Form 10-K under the Exchange Act (including any Form 10-K/A containing amended
financial information or a material amendment to the previously filed Form 10-K) (such date of filing, an “Annual Representation
Date”); (iii) files a quarterly report on Form 10-Q under the Exchange Act (such date of filing, a “Quarterly
Representation Date”); (iv) files a current report on Form 8-K containing amended financial information (other than
an earnings release, to “furnish” information pursuant to Items 2.02 or 7.01 of Form 8-K or to provide disclosure pursuant
to Item 8.01 of Form 8-K relating to the reclassification of certain properties as discontinued operations in accordance with Statement
of Financial Accounting Standards No. 144) under the Exchange Act; or (v) sells Placement Shares to the Sales Agent as principal
at the Point of Sale pursuant to the applicable Placement Notice (each date of filing of one or more of the documents and each other
date referred to in clauses (i) through (v) shall be a “Representation Date”), the Company shall
furnish the Sales Agent within two (2) Trading Days after each Representation Date with a certificate, in the form attached hereto
as Exhibit 7(m). The requirement to provide a certificate under this Section 7(m) shall be waived for any
Representation Date occurring at a time at which no Placement Notice is pending, which waiver shall continue until the earlier to occur
of the date the Company delivers a Placement Notice hereunder (which for such calendar quarter shall be considered a Representation Date)
and the next occurring Representation Date; provided, however, that such waiver shall not apply for any Representation
Date on which the Company files its annual report on Form 10-K. Notwithstanding the foregoing, if the Company subsequently decides
to sell Placement Shares following a Representation Date when the Company relied on such waiver and did not provide the Sales Agent with
a certificate under this Section 7(m), then before the Company delivers the Placement Notice or the Sales Agent sells any
Placement Shares, the Company shall provide the Sales Agent with a certificate, in the form attached hereto as Exhibit 7(m),
dated the date of the Placement Notice.
(n) Legal
Opinion. On or prior to the date the first Placement Notice is given hereunder, the Company shall cause to be furnished to the Sales
Agent (i) the written opinions and negative assurances of Lowenstein Sandler LLP, counsel to the Company, or other counsel reasonably
satisfactory to the Sales Agent (“Company Counsel”), and (ii) the written opinions and negative assurances
of Sterne, Kessler, Goldstein & Fox PLLC, intellectual property counsel to the Company, or other counsel reasonably satisfactory
to the Sales Agent (“Company IP Counsel”), in each case in form and substance reasonably satisfactory to the
Sales Agent. Thereafter, within three (3) Trading Days after each Representation Date with respect to which the Company is obligated
to deliver a certificate pursuant to Section 7(m) for which no waiver is applicable pursuant to Section 7(m),
and not more than once per calendar quarter, the Company shall cause to be furnished to the Sales Agent the negative assurance of Company
Counsel and Company IP Counsel substantially in the form previously agreed between the Company and the Sales Agent, modified, as necessary,
to relate to the Registration Statement and the Prospectus as then amended or supplemented; provided, however, that if
Company Counsel or Company IP Counsel has previously furnished to the Sales Agent such negative assurance substantially in the form previously
agreed between the Company and the Sales Agent, such counsel may, in respect of any future Representation Date, furnish the Sales Agent
with a letter (a “Reliance Letter”) in lieu of such negative assurance to the effect that the Sales Agent may
rely on the prior negative assurance of such counsel delivered pursuant to this Section 7(n) to the same extent as if
it were dated the date of such Reliance Letter.
(o) Comfort
Letter. On or prior to the date the first Placement Notice is given hereunder and within three (3) Trading Days after each subsequent
Annual Representation Date with respect to which the Company is obligated to deliver a certificate pursuant to Section 7(m) for
which no waiver is applicable pursuant to Section 7(m), the Company shall cause its independent accountants to furnish the
Sales Agent letters (the “Comfort Letters”), dated the date that the Comfort Letter is delivered, in form and
substance satisfactory to the Sales Agent, (i) confirming that they are an independent registered public accounting firm within
the meaning of the Securities Act, the Exchange Act and the rules and regulations of the PCAOB and are in compliance with the applicable
requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating,
as of such date, the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered
by accountants’ “comfort letters” to the Sales Agent in connection with registered public offerings (the first such
letter, the “Initial Comfort Letter”) and (iii) updating the Initial Comfort Letter with any information
that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the
Registration Statement and the Prospectus, as amended and supplemented to the date of such letter.
(p) Market
Activities. The Company will not, directly or indirectly, (i) take any action designed to cause or result in, or that constitutes
or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Common Stock or (ii) sell, bid for, or purchase the Placement Shares to be issued and sold pursuant to
this Agreement, or pay anyone any compensation for soliciting purchases of the Placement Shares other than the Sales Agent.
(q) Insurance.
The Company and its subsidiaries shall maintain, or cause to be maintained, insurance in such amounts and covering such risks as is reasonable
and customary for the business in which it is engaged.
(r) Compliance
with Laws. The Company and each of its subsidiaries shall maintain, or cause to be maintained, all material environmental permits,
licenses and other authorizations required by federal, state and local law in order to conduct their businesses as described in the Prospectus,
and the Company and each of its subsidiaries shall conduct their businesses, or cause their businesses to be conducted, in substantial
compliance with such permits, licenses and authorizations and with applicable environmental laws, except where the failure to maintain
or be in compliance with such permits, licenses and authorizations could not reasonably be expected to result in a Material Adverse Change.
(s) Investment
Company Act. The Company will conduct its affairs in such a manner so as to reasonably ensure that neither it nor its subsidiaries
is or, after giving effect to the offering and sale of the Placement Shares and the application of proceeds therefrom as described in
the Prospectus, will be, an “investment company” within the meaning of such term under the Investment Company Act.
(t) Securities
Act and Exchange Act. The Company will use its best efforts to comply with all requirements imposed upon it by the Securities Act
and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Placement
Shares as contemplated by the provisions hereof and the Prospectus.
(u) No
Offer to Sell. Other than the Prospectus, neither the Sales Agent nor the Company (including its agents and representatives, other
than the Sales Agent in its capacity as such) will make, use, prepare, authorize, approve or refer to any written communication (as defined
in Rule 405 under the Securities Act), required to be filed with the Commission, that constitutes an offer to sell or solicitation
of an offer to buy Placement Shares hereunder.
(v) Sarbanes-Oxley
Act. The Company and its subsidiaries will use their best efforts to comply with all effective applicable provisions of the Sarbanes-Oxley
Act.
(w) New
Registration Statement. If immediately prior to the third (3rd) anniversary of the initial effective date of the Registration
Statement, any of the Placement Shares remain unsold, the sale of the Placement Shares under this Agreement shall automatically be suspended
unless and until the Company files a new shelf registration statement relating to the Placement Shares and such new registration statement
is declared effective by the Commission. References herein to the Registration Statement shall include such new shelf registration statement.
If any such new shelf registration statement becomes effective prior to the termination date of this Agreement, the Company agrees to
notify the Sales Agent of such effective date.
8. Conditions
to the Sales Agent’s Obligations. The obligations of the Sales Agent hereunder with respect to a Placement will be subject
to the continuing accuracy and completeness of the representations and warranties made by the Company herein, to the due performance
by the Company of its obligations hereunder, to the completion by the Sales Agent of a due diligence review satisfactory to the Sales
Agent in its reasonable judgment, and to the continuing satisfaction (or waiver by the Sales Agent in its sole discretion) of the following
additional conditions:
(a) Registration
Statement Effective. The Registration Statement shall be effective and shall be available for the sale of all Placement Shares contemplated
to be issued by any Placement Notice.
(b) Securities
Act Filings Made. The Company shall have filed with the Commission the ATM Prospectus pursuant to Rule 424(b) under the
Securities Act within the applicable time period prescribed for such filing by Rule 424(b). All other filings with the Commission
required by Rule 424 under the Securities Act to have been filed prior to the issuance of any Placement Notice hereunder shall have
been made within the applicable time period prescribed for such filing by Rule 424.
(c) No
Material Notices. None of the following events shall have occurred and be continuing: (i) receipt by the Company or any of its
subsidiaries of any request for additional information from the Commission or any other federal or state governmental authority during
the period of effectiveness of the Registration Statement, the response to which would require any post-effective amendments or supplements
to the Registration Statement or the Prospectus; (ii) the issuance by the Commission or any other federal or state governmental
authority of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that
purpose; (iii) receipt by the Company of any notification with respect to the suspension of the qualification or exemption from
qualification of any of the Placement Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such
purpose; (iv) the occurrence of any event that makes any material statement made in the Registration Statement or the Prospectus
or any material document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires
the making of any changes in the Registration Statement, related Prospectus or such documents so that, in the case of the Registration
Statement, it will not contain any materially untrue statement of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading and, that in the case of the Prospectus, it will not contain any materially
untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading.
(d) No
Misstatement or Material Omission. The Sales Agent shall not have advised the Company that the Registration Statement or Prospectus,
or any amendment or supplement thereto, contains an untrue statement of fact that in the Sales Agent’s reasonable opinion is material,
or omits to state a fact that in the Sales Agent’s reasonable opinion is material and is required to be stated therein or is necessary
to make the statements therein not misleading.
(e) Material
Changes. Except as contemplated in the Prospectus, or disclosed in the Company’s reports filed with the Commission, there shall
not have been any material adverse change in the authorized capital stock of the Company or any Material Adverse Change or any development
that would reasonably be expected to result in a Material Adverse Change, or any downgrading in or withdrawal of the rating assigned
to any of the Company’s securities (other than asset backed securities) by any rating organization or a public announcement by
any rating organization that it has under surveillance or review its rating of any of the Company’s securities (other than asset
backed securities), the effect of which, in the case of any such action by a rating organization described above, in the reasonable judgment
of the Sales Agent (without relieving the Company of any obligation or liability it may otherwise have), is so material as to make it
impracticable or inadvisable to proceed with the offering of the Placement Shares on the terms and in the manner contemplated by this
Agreement and the Prospectus.
(f) Company
Counsel Legal Opinion. The Sales Agent shall have received the opinions and negative assurances of Company Counsel required to be
delivered pursuant Section 7(n) on or before the date on which such delivery of such opinions and negative assurances
is required pursuant to Section 7(n).
(g) Company
IP Counsel Legal Opinion. The Sales Agent shall have received the opinions and negative assurances of Company IP Counsel required
to be delivered pursuant Section 7(n) on or before the date on which such delivery of such opinions and negative assurances
is required pursuant to Section 7(n).
(h) Sales
Agent Counsel Legal Opinion. The Sales Agent shall have received from Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel
to the Sales Agent, on or before the date on which the delivery of the Company Counsel legal opinion is required pursuant to Section 7(n),
such opinions and negative assurances with respect to such matters as the Sales Agent may reasonably require, and the Company shall have
furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(i) Comfort
Letter. The Sales Agent shall have received the Comfort Letter required to be delivered pursuant Section 7(o) on
or before the date on which such delivery of such Comfort Letter is required pursuant to Section 7(o).
(j) Representation
Certificate. The Sales Agent shall have received the certificate required to be delivered pursuant to Section 7(m) on
or before the date on which delivery of such certificate is required pursuant to Section 7(m).
(k) Secretary’s
Certificate. On or prior to the date the first Placement Notice is given hereunder, the Sales Agent shall have received a certificate,
signed on behalf of the Company by its corporate Secretary, certifying as to (i) the Certificate of Incorporation of the Company,
(ii) the By-laws of the Company, (iii) the resolutions of the Board of Directors of the Company (or a committee thereof) authorizing
the execution, delivery and performance of this Agreement and the issuance of the Placement Shares and (iv) the incumbency of the
officers duly authorized to execute this Agreement and the other documents contemplated by this Agreement.
(l) No
Suspension. The Common Stock shall be duly listed, and admitted and authorized for trading, subject to official notice of issuance,
on the Exchange. Trading in the Common Stock shall not have been suspended on the Exchange and the Common Stock shall not have been delisted
from the Exchange.
(m) Other
Materials. On each date on which the Company is required to deliver a certificate pursuant to Section 7(m), the Company
shall have furnished to the Sales Agent such appropriate further opinions, certificates, letters and documents as the Sales Agent may
have reasonably requested. All such opinions, certificates, letters and other documents shall have been in compliance with the provisions
hereof. The Company will furnish the Sales Agent with such conformed copies of such opinions, certificates, letters and other documents
as the Sales Agent shall have reasonably requested.
(n) Approval
for Listing. The Company shall have filed a Notification: Listing of Additional Shares with the Exchange to satisfy the Company’s
notification obligation under Nasdaq Listing Rule 5250(e)(2).
(o) No
Termination Event. There shall not have occurred any event that would permit the Sales Agent to terminate this Agreement pursuant
to Section 11(a).
(p) FINRA.
The Sales Agent shall have received a letter from the Corporate Financing Department of FINRA issued in connection with the Registration
Statement and FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting terms, or
other arrangements of the transactions, contemplated hereby.
9. Indemnification
and Contribution.
(a) Company
Indemnification. The Company agrees to indemnify and hold harmless the Sales Agent, the directors, officers, members, partners, employees
and agents of the Sales Agent, and each Sales Agent Affiliate, if any, each broker dealer affiliate of the Sales Agent from and against
any and all losses, claims, liabilities, expenses and damages (including, but not limited to, any and all reasonable investigative, legal
and other expenses incurred in connection with, and any and all amounts paid in settlement (in accordance with Section 9(c))
of, any action, suit or proceeding between any of the indemnified parties and any indemnifying parties or between any indemnified party
and any third party, or otherwise, or any claim asserted), as and when incurred, to which the Sales Agent, or any such person, may become
subject under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, liabilities, expenses or damages arise out of or are based, directly or indirectly, on (x) any untrue
statement or alleged untrue statement of a material fact contained in the Registration Statement or the Prospectus or any amendment or
supplement thereto or in any free writing prospectus or in any application or other document executed by or on behalf of the Company
or based on written information furnished by or on behalf of the Company filed in any jurisdiction in order to qualify the Common Stock
under the securities laws thereof or filed with the Commission, (y) the omission or alleged omission to state in any such document
a material fact required to be stated in it or necessary to make the statements in it not misleading or (z) any breach by any of
the indemnifying parties of any of their respective representations, warranties and agreements contained in this Agreement; provided,
however, that this indemnity agreement shall not apply to the extent that such loss, claim, liability, expense or damage arises from
the sale of the Placement Shares pursuant to this Agreement and is caused directly by an untrue statement or omission made in reliance
upon and in strict conformity with written information relating to the Sales Agent and furnished to the Company by the Sales Agent expressly
for inclusion in any document as described in clause (x) of this Section 9(a). This indemnity agreement will be
in addition to any liability that the Company might otherwise have.
(b) The
Sales Agent Indemnification. The Sales Agent agrees to indemnify and hold harmless the Company and its directors and each officer
of the Company that signed the Registration Statement, and each person, if any, who (i) controls the Company within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act or (ii) is controlled by or is under common control
with the Company (each, a “Company Affiliate”) from and against any and all losses, claims, liabilities, expenses
and damages (including, but not limited to, any and all reasonable investigative, legal and other expenses incurred in connection with,
and any and all amounts paid in settlement (in accordance with Section 9(c)) of, any action, suit or proceeding between any
of the indemnified parties and any indemnifying parties or between any indemnified party and any third party, or otherwise, or any claim
asserted), as and when incurred, to which any such Company Affiliate, may become subject under the Securities Act, the Exchange Act or
other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, liabilities, expenses
or damages arise out of or are based, directly or indirectly, on (x) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or the Prospectus or any amendment or supplement thereto, or (y) the omission or alleged
omission to state in any such document a material fact required to be stated in it or necessary to make the statements in it not misleading;
provided, however, that this indemnity agreement shall apply only to the extent that such loss, claim, liability, expense
or damage is caused directly by an untrue statement or omission made in reliance upon and in strict conformity with written information
relating to the Sales Agent and furnished to the Company by the Sales Agent expressly for inclusion in any document as described in clause (x) of
this Section 9(b), which the Company acknowledges consists solely of the material referred to in Schedule 5
hereto, as updated from time to time.
(c) Procedure.
Any party that proposes to assert the right to be indemnified under this Section 9 will, promptly after receipt of notice
of commencement of any action against such party in respect of which a claim is to be made against an indemnifying party or parties under
this Section 9, notify each such indemnifying party of the commencement of such action, enclosing a copy of all papers served,
but the omission so to notify such indemnifying party will not relieve the indemnifying party from (i) any liability that it might
have to any indemnified party otherwise than under this Section 9 and (ii) any liability that it may have to any indemnified
party under the foregoing provision of this Section 9 unless, and only to the extent that, such omission results in the forfeiture
of substantive rights or defenses by the indemnifying party. If any such action is brought against any indemnified party and it notifies
the indemnifying party of its commencement, the indemnifying party will be entitled to participate in and, to the extent that it elects
by delivering written notice to the indemnified party promptly after receiving notice of the commencement of the action from the indemnified
party, jointly with any other indemnifying party similarly notified, to assume the defense of the action, with counsel reasonably satisfactory
to the indemnified party, and after notice from the indemnifying party to the indemnified party of its election to assume the defense,
the indemnifying party will not be liable to the indemnified party for any legal or other expenses except as provided below and except
for the reasonable and documented costs of investigation subsequently incurred by the indemnified party in connection with the defense.
The indemnified party will have the right to employ its own counsel in any such action, but the fees, expenses and other charges of such
counsel will be at the expense of such indemnified party unless (1) the employment of counsel by the indemnified party has been
authorized in writing by the indemnifying party, (2) the indemnified party has reasonably concluded (based on advice of counsel)
that there may be legal defenses available to it or other indemnified parties that are different from or in addition to those available
to the indemnifying party, (3) a conflict or potential conflict exists (based on advice of counsel to the indemnified party) between
the indemnified party and the indemnifying party (in which case the indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party) or (4) the indemnifying party has not in fact employed counsel to assume the
defense of such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases the
reasonable fees, disbursements and other charges of counsel will be at the expense of the indemnifying party or parties. It is understood
that the indemnifying party or parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the reasonable fees, disbursements and other charges of more than one separate firm admitted to practice in such jurisdiction
at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the indemnifying
party promptly as they are incurred. An indemnifying party will not, in any event, be liable for any settlement of any action or claim
effected without its written consent. No indemnifying party shall, without the prior written consent of each indemnified party, settle
or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding relating to the matters
contemplated by this Section 9 (whether or not any indemnified party is a party thereto), unless such settlement, compromise
or consent includes an unconditional release of each indemnified party from all liability arising or that may arise out of such claim,
action or proceeding.
(d) Contribution.
In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in the foregoing paragraphs
of this Section 9 is applicable in accordance with its terms but for any reason is held to be unavailable from the Company
or the Sales Agent, the Company and the Sales Agent will contribute to the total losses, claims, liabilities, expenses and damages (including
any investigative, legal and other expenses reasonably incurred in connection with, and any amount paid in settlement of, any action,
suit or proceeding or any claim asserted, but after deducting any contribution received by the Company from persons other than the Sales
Agent, such as persons who control the Company within the meaning of the Securities Act, officers of the Company who signed the Registration
Statement and directors of the Company, who also may be liable for contribution) to which the Company and the Sales Agent may be subject
in such proportion as shall be appropriate to reflect the relative benefits received by the Company on the one hand and the Sales Agent
on the other. The relative benefits received by the Company on the one hand and the Sales Agent on the other hand shall be deemed to
be in the same proportion as the total Net Proceeds from the sale of the Placement Shares (before deducting expenses) received by the
Company bear to the total compensation received by the Sales Agent from the sale of Placement Shares on behalf of the Company. If, but
only if, the allocation provided by the foregoing sentence is not permitted by applicable law, the allocation of contribution shall be
made in such proportion as is appropriate to reflect not only the relative benefits referred to in the foregoing sentence but also the
relative fault of the Company, on the one hand, and the Sales Agent, on the other, with respect to the statements or omission that resulted
in such loss, claim, liability, expense or damage, or action in respect thereof, as well as any other relevant equitable considerations
with respect to such offering. Such relative fault shall be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company
or the Sales Agent, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Sales Agent agree that it would not be just and equitable if contributions pursuant to
this Section 9(d) were to be determined by pro rata allocation or by any other method of allocation that does not take
into account the equitable considerations referred to herein. The amount paid or payable by an indemnified party as a result of the loss,
claim, liability, expense, or damage, or action in respect thereof, referred to above in this Section 9(d) shall be
deemed to include, for the purpose of this Section 9(d), any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim to the extent consistent with Section 9(c) hereof.
Notwithstanding the foregoing provisions of this Section 9(d), the Sales Agent shall not be required to contribute any amount
in excess of the commissions received by it under this Agreement and no person found guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) will be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 9(d), any person who controls a party to this Agreement within
the meaning of the Securities Act will have the same rights to contribution as that party (and any officers, directors, members, partners,
employees or agents of the Sales Agent and each broker dealer affiliate of the Sales Agent will have the same rights to contribution
as the Sales Agent), and each officer of the Company who signed the Registration Statement and each director of the Company will have
the same rights to contribution as the Company, subject in each case to the provisions hereof. Any party entitled to contribution, promptly
after receipt of notice of commencement of any action against such party in respect of which a claim for contribution may be made under
this Section 9(d), will notify any such party or parties from whom contribution may be sought, but the omission to so notify
will not relieve that party or parties from whom contribution may be sought from any other obligation it or they may have under this
Section 9(d) except to the extent that the failure to so notify such other party materially prejudiced the substantive
rights or defenses of the party from whom contribution is sought. Except for a settlement entered into pursuant to the last sentence
of Section 9(c) hereof, no party will be liable for contribution with respect to any action or claim settled without
its written consent if such consent is required pursuant to Section 9(c) hereof.
10. Representations
and Agreements to Survive Delivery. The indemnity and contribution agreements contained in Section 9 of this Agreement
and all representations and warranties of the Company herein or in certificates delivered pursuant hereto shall survive, as of their
respective dates, regardless of (i) any investigation made by or on behalf of the Sales Agent, any controlling person of the Sales
Agent, or the Company (or any of their respective officers, directors, members or controlling persons), (ii) delivery and acceptance
of the Placement Shares and payment therefor or (iii) any termination of this Agreement.
11. Termination.
(a) The
Sales Agent may terminate this Agreement, as to itself, at any time prior to the Settlement Date by written notice to the Company as
hereinafter specified at any time (1) if there has been, since the time of execution of this Agreement, or since the date as of
which information is given in the Prospectus, any Material Adverse Effect, or any development that would have a Material Adverse Effect
or, in the judgment of the Sales Agent, is material and adverse and makes it impractical or inadvisable to market the Shares or to enforce
contracts for the sale of the Shares, (2) if there has occurred any material adverse change in the financial markets in the United
States or the international financial markets, any outbreak of hostilities or act of terrorism or escalation thereof or other calamity
or crisis or any change or development involving a prospective change in national or international political, financial or economic conditions,
in each case the effect of which is such as to make it, in the judgment of the Sales Agent, impracticable or inadvisable to market the
Shares or to enforce contracts for the sale of the Shares, (3) if trading in the Common Stock has been suspended or limited by the
Commission or the Exchange, or if trading generally on the Exchange has been suspended or limited, or minimum prices for trading have
been fixed on the Exchange, (4) if any suspension of trading of any securities of the Company on any exchange or in the over-the-counter
market shall have occurred and be continuing, (5) if a major disruption of securities settlements or clearance services in the United
States shall have occurred and be continuing, or (6) if a banking moratorium has been declared by either U.S. Federal or New York
authorities. Any such termination shall be without liability of any party to any other party except that the provisions of Section 7(g) (Expenses),
Section 9 (Indemnification and Contribution), Section 10 (Representations and Agreements to Survive Delivery),
Section 11(f), Section 16 (Applicable Law; Consent to Jurisdiction) and Section 17 (Waiver of Jury
Trial) hereof shall remain in full force and effect notwithstanding such termination. If the Sales Agent elects to terminate this Agreement
as provided in this Section 11(a), the Sales Agent shall provide the required notice as specified in Section 12
(Notices).
(b) The
Company shall have the right, by giving three (3) days’ notice (or such shorter amount of time, if agreed to in writing by
the Company and the Sales Agent) as hereinafter specified in Section 12, to terminate this Agreement in its sole discretion
at any time after the date of this Agreement. Any such termination shall be without liability of any party to any other party except
that the provisions of Section 7(g), Section 9, Section 10, Section 11(f), Section 16
and Section 17 hereof shall remain in full force and effect notwithstanding such termination.
(c) The
Sales Agent shall have the right, by giving ten (10) days’ notice as hereinafter specified in Section 12, to terminate
this Agreement in its sole discretion at any time after the date of this Agreement. Any such termination shall be without liability of
any party to any other party except that the provisions of Section 7(g), Section 9, Section 10, Section 11(f),
Section 16 and Section 17 hereof shall remain in full force and effect notwithstanding such termination.
(d) Unless
earlier terminated pursuant to this Section 11, this Agreement shall automatically terminate upon the issuance and sale of
all of the Placement Shares to or through the Sales Agent on the terms and subject to the conditions set forth herein; provided
that the provisions of Section 7(g), Section 9, Section 10, Section 11(f), Section 16
and Section 17 hereof shall remain in full force and effect notwithstanding such termination.
(e) This
Agreement shall remain in full force and effect unless terminated pursuant to Sections 11(a), (b), (c) or
(d) above or otherwise by mutual agreement of the parties; provided, however, that any such termination by
mutual agreement shall in all cases be deemed to provide that Section 7(g), Section 9, Section 10,
Section 11(f), Section 16 and Section 17 shall remain in full force and effect. Upon termination
of this Agreement, the Company shall not have any liability to the Agent for any discount, commission, or other compensation with respect
to any Placement Shares not otherwise sold by the Agent under this Agreement.
(f) Any
termination of this Agreement shall be effective on the date specified in such notice of termination; provided, however,
that such termination shall not be effective until the close of business on the date of receipt of such notice by the Sales Agent or
the Company, as the case may be. If such termination shall occur prior to the Settlement Date for any sale of Placement Shares, such
termination shall not become effective until the close of business on such Settlement Date and such Placement Shares shall settle in
accordance with the provisions of this Agreement.
12. Notices.
All notices or other communications required or permitted to be given by any party to any other party pursuant to the terms of this Agreement
shall be in writing, unless otherwise specified, and if sent to the Sales Agent, shall be delivered to:
Oppenheimer & Co. Inc.
85 Broad Street, 26th Floor
New York, NY 10004
Attention: Peter Vogelsang, Office of General Counsel
Telephone: (212) 667-8195
Email: peter.vogelsang@opco.com
with a copy (which shall not constitute notice)
to:
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
919 Third Avenue
New York, New York 10017
Attention: Ivan K. Blumenthal, Esq.
Email: IKBlumenthal@mintz.com
and if to the Company, shall be delivered to:
Gain Therapeutics, Inc.
4800 Montgomery Lane, Suite 220
Bethesda,
Maryland 20814
Attention: Gene Mack, Interim Chief Executive Officer and Chief Financial Officer
Email: gmack@gaintherapeutics.com
with
a copy (which shall not constitute notice) to:
Lowenstein Sandler
One Lowenstein Drive
Roseland, NJ 07068
Attention: Steven Skolnick
Email: sskolnick@lowenstein.com
Each party may change such
address for notices by sending to the other party to this Agreement written notice of a new address for such purpose. Each such notice
or other communication shall be deemed given (i) when delivered personally or by verifiable facsimile transmission (with an original
to follow) on or before 4:30 p.m., New York City time, on a Business Day or, if such day is not a Business Day, on the next succeeding
Business Day, (ii) on the next Business Day after timely delivery to a nationally-recognized overnight courier and (iii) on
the Business Day actually received if deposited in the U.S. mail (certified or registered mail, return receipt requested, postage prepaid).
For purposes of this Agreement, “Business Day” shall mean any day on which the Exchange and commercial banks
in the City of New York are open for business.
An electronic communication
(“Electronic Notice”) shall be deemed written notice for purposes of this Section 12 if sent to
the electronic mail address specified by the receiving party under separate cover. Electronic Notice shall be deemed received at the
time the party sending Electronic Notice receives confirmation of receipt by the receiving party (other than pursuant to auto-reply).
Any party receiving Electronic Notice may request and shall be entitled to receive the notice on paper, in a nonelectronic form (“Nonelectronic
Notice”) which shall be sent to the requesting party within ten (10) days of receipt of the written request for Nonelectronic
Notice.
13. Successors
and Assigns. This Agreement shall inure to the benefit of and be binding upon the Company and the Sales Agent and their respective
successors and permitted assigns and, as to Sections 5(b) and 9, the other indemnified parties specified therein.
References to any of the parties contained in this Agreement shall be deemed to include the successors and permitted assigns of such
party. Nothing in this Agreement, express or implied, is intended to confer upon any other person any rights, remedies, obligations or
liabilities under or by reason of this Agreement, except as expressly provided in this Agreement. Any investigation that the Sales Agent
makes into the business, assets, liabilities, results of operations, financial condition, financial statements, or management and board
of directors of the company shall be for the Sales Agent’s and its indemnified persons own information and benefit and not for
the benefit of any other third party. Neither party may assign its rights or obligations under this Agreement without the prior written
consent of the other party; provided, however, that the Sales Agent may assign its rights and obligations hereunder to
an affiliate of the Sales Agent without obtaining the Company’s consent.
14. Adjustments
for Share Splits. The parties acknowledge and agree that all share-related numbers contained in this Agreement shall be adjusted
to take into account any share split, share dividend or similar event effected with respect to the Common Stock.
15. Entire
Agreement; Amendment; Severability. This Agreement (including all schedules and exhibits attached hereto and Placement Notices issued
pursuant hereto) and any other writing entered into by the parties relating to this Agreement constitutes the entire agreement and supersedes
all other prior and contemporaneous agreements and undertakings, both written and oral, among the parties hereto with regard to the subject
matter hereof. Neither this Agreement nor any term hereof may be amended except pursuant to a written instrument executed by the Company
and the Sales Agent. In the event that any one or more of the provisions contained herein, or the application thereof in any circumstance,
is held invalid, illegal or unenforceable as written by a court of competent jurisdiction, then such provision shall be given full force
and effect to the fullest possible extent that it is valid, legal and enforceable, and the remainder of the terms and provisions herein
shall be construed as if such invalid, illegal or unenforceable term or provision was not contained herein, but only to the extent that
giving effect to such provision and the remainder of the terms and provisions hereof shall be in accordance with the intent of the parties
as reflected in this Agreement.
16. Applicable
Law; Consent to Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the internal laws of the State
of New York, without regard to the principles of conflicts of laws. Each party hereby irrevocably submits to the non-exclusive jurisdiction
of the state and federal courts sitting in the City of New York, Borough of Manhattan, for the adjudication of any dispute hereunder
or in connection with any transaction contemplated hereby, and hereby irrevocably waives, and agrees not to assert in any suit, action
or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding
is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Each party hereby irrevocably waives
personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof (certified
or registered mail, return receipt requested) to such party at the address in effect for notices to it under this Agreement and agrees
that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed
to limit in any way any right to serve process in any manner permitted by law.
17. Waiver
of Jury Trial. The Company and the Sales Agent each hereby irrevocably waives any right it may have to a trial by jury in respect
of any claim based upon or arising out of this Agreement or any transaction contemplated hereby.
18. Absence
of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) the
Sales Agent is acting solely as agent in connection with the sale of the Placement Shares contemplated by this Agreement and the process
leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective affiliates, stockholders
(or other equity holders), creditors or employees or any other party, on the one hand, and the Sales Agent, on the other hand, has been
or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether the Sales Agent has
advised or is advising the Company on other matters, and the Sales Agent has no obligation to the Company with respect to the transactions
contemplated by this Agreement, except the obligations expressly set forth in this Agreement;
(b) the
Company is capable of evaluating and understanding and understands and accepts the terms, risks and conditions of the transactions contemplated
by this Agreement;
(c) the
Sales Agent has not provided any legal, accounting, regulatory or tax advice with respect to the transactions contemplated by this Agreement,
and the Company has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) the
Company has been advised and is aware that the Sales Agent and its affiliates are engaged in a broad range of transactions which may
involve interests that differ from those of the Company and that the Sales Agent has no obligation to disclose such interests and transactions
to the Company by virtue of any fiduciary, advisory or agency relationship; and
(e) the
Company waives, to the fullest extent permitted by law, any claims it may have against the Sales Agent, for breach of fiduciary duty
or alleged breach of fiduciary duty and agrees that the Sales Agent shall have no liability (whether direct or indirect, in contract,
tort or otherwise) to the Company in respect of such a fiduciary claim or to any person asserting a fiduciary duty claim on behalf of
or in right of the Company, including stockholders, partners, employees or creditors of the Company.
19. Use
of Information. The Sales Agent may not provide any information gained in connection with this Agreement and the transactions contemplated
by this Agreement, including due diligence, to any third party other than its legal counsel advising it on this Agreement unless expressly
approved by the Company in writing.
20. Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. Delivery of an executed Agreement by one party to the other may be made by facsimile or electronic
transmission. Counterparts may be delivered via facsimile, electronic mail (including any electronic signature covered by the U.S. federal
ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g.,www.docusign.com)
or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and
effective for all purposes.
21. Effect
of Headings; Knowledge of the Company. The section and Exhibit headings herein are for convenience only and shall not affect
the construction hereof. All references in this Agreement to the “knowledge of the Company” or the “Company’s
knowledge” or similar qualifiers shall mean the actual knowledge of the directors and officers of the Company, after due inquiry.
22. Definitions.
As used in this Agreement, the following term has the meaning set forth below:
(a) “Applicable
Time” means the date of this Agreement, each Representation Date, each date on which a Placement Notice is given,
each Point of Sale, and each Settlement Date.
[Remainder of Page Intentionally Blank]
If the foregoing correctly
sets forth the understanding between the Company and the Sales Agent, please so indicate in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement between the Company and the Sales Agent.
| |
Very truly yours, |
| |
|
| |
GAIN THERAPEUTICS, INC. |
| |
|
| |
|
| |
By: |
/s/ Gene Mack |
| |
|
Name: Gene Mack |
| |
|
Title: Chief Financial Officer and Interim Chief
Executive Officer |
| |
|
| |
ACCEPTED as of the date first-above
written: |
| |
|
| |
OPPENHEIMER & CO. INC. |
| |
|
| |
|
| |
By: |
/s/ Michael Margolis, R.Ph. |
| |
|
Name: |
Michael Margolis, R.Ph. |
| |
|
Title: |
Managing Director, Co-Head Healthcare IB |
SCHEDULE 1
FORM OF
PLACEMENT NOTICE
| From: | Gain Therapeutics, Inc. |
| To: | Oppenheimer & Co. Inc.
Attention: |
| Subject: | At-The-Market Offering—Placement Notice |
Gentlemen:
Pursuant to the terms and subject to the conditions
contained in the Equity Distribution Agreement between Gain Therapeutics, Inc., a Delaware corporation (the “Company”),
and Oppenheimer & Co. Inc. (the “Sales Agent”) dated September 6, 2024 (the “Agreement”), I
hereby request on behalf of the Company that the Sales Agent sell up to [___] shares of the Company’s common stock, par value $0.0001
per share, at a minimum market price of $[_______] per share, during the period beginning [MONTH/DAY/TIME] and ending [MONTH/DAY/TIME].
SCHEDULE 2
Notice Parties
Gain Therapeutics, Inc.
Gene Mack, Interim Chief Executive Officer and Chief Financial Officer
Email:
gmack@gaintherapeutics.com
With
a copy to: SSkolnick@lowenstein.com
Oppenheimer & Co. Inc.
Email: DL-EquityATMOffering@opco.com
With a copy to: IKBlumenthal@mintz.com
SCHEDULE 3
Compensation
The Sales Agent shall be paid compensation equal
to 3.0% of the gross proceeds from the sales of Placement Shares pursuant to the terms of this Agreement and shall be reimbursed for
certain expenses in accordance with Section 7(g) of this Agreement.
The foregoing rate of compensation shall not
apply when the Sales Agent acts as principal, in which case the Company may sell the Placement Shares to the Sales Agent as principal
at a price agreed upon at the relevant Point of Sale pursuant to the applicable Placement Notice.
SCHEDULE 4
Schedule of Subsidiaries
GT Gain Therapeutics SA
SCHEDULE 5
Information Provided By Sales Agent
The parties acknowledge and
agree that, for purposes of Sections 6(b) and 9 of this Agreement, there is no information provided by the Sales Agent.
The information in this Schedule
shall be updated from time to time in connection with the filing of a new Prospectus or otherwise as necessary.
OFFICER CERTIFICATE
Date: ____________
The undersigned, the duly
qualified and appointed _____________________ of Gain Therapeutics, Inc., a Delaware corporation (the “Company”),
does hereby certify in such capacity and on behalf of the Company, pursuant to Section 7(m) of the Equity Distribution
Agreement, dated September 6, 2024 (the “Equity Distribution Agreement”), between the Company and Oppenheimer &
Co. Inc., that:
| (i) | the representations and warranties of
the Company set forth under Section 6 of the Equity Distribution Agreement (A) to
the extent such representations and warranties are subject to qualifications and exceptions
contained therein relating to materiality or Material Adverse Change, are true and correct
on and as of the date hereof with the same force and effect as if expressly made on and as
of the date hereof, except for those representations and warranties that speak solely as
of a specific date and which were true and correct as of such date, and (B) to the extent
such representations and warranties are not subject to any qualifications or exceptions,
are true and correct in all material respects as of the date hereof as if made on and as
of the date hereof with the same force and effect as if expressly made on and as of the date
hereof except for those representations and warranties that speak solely as of a specific
date and which were true and correct as of such date; |
| (ii) | the Company has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied pursuant to the Equity
Distribution Agreement at or prior to the date hereof; |
| (iii) | as of the date hereof, (i) the
Registration Statement does 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, (ii) the Prospectus does 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, in light of the circumstances under which they were
made, not misleading and (iii) no event has occurred as a result of which it is necessary
to amend or supplement the Registration Statement or the Prospectus in order to make the
statements therein not untrue or misleading for clauses (i) and (ii) above,
respectively, to be true and correct; |
| (iv) | there has been no Material Adverse Change
since the date as of which information is given in the Prospectus, as amended or supplemented; |
| (v) | the Company does not possess any material
non-public information; and |
| (vi) | the aggregate offering price of the Placement
Shares that may be issued and sold pursuant to the Equity Distribution Agreement and the
maximum number or amount of Placement Shares that may be sold pursuant to the Equity Distribution
Agreement have been duly authorized by the Company’s board of directors or a duly authorized
committee thereof. |
Terms used herein and not defined herein have
the meanings ascribed to them in the Equity Distribution Agreement.
[Signature Page Follows]
Exhibit 5.1
September 6, 2024
Gain Therapeutics, Inc.
4800 Montgomery Lane, Suite 220
Bethesda, Maryland 20814
Re: Sale of Common Stock registered pursuant to Shelf Registration
Statement on Form S-3
Ladies and Gentlemen:
We have acted as counsel to
Gain Therapeutics, Inc., a Delaware corporation (the “Company”), in connection with (i) the offer and sale
by the Company of up to an aggregate of $50,000,000 of shares of its common stock, par value $0.0001 per share (the “Shares”),
pursuant to an Equity Distribution Agreement (the “Distribution Agreement”), dated September 6, 2024, by and
between the Company and Oppenheimer & Co., Inc., as sales agent. The Shares are being offered for sale pursuant to the Company’s
registration statement on Form S-3 (File No. 333-265061) (the “Registration Statement”) filed with the U.S.
Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities
Act”) and the rules and regulations promulgated thereunder, the prospectus, dated June 1, 2022 (the “Prospectus”)
and (ii) the preparation and filing of the prospectus supplement that will be filed pursuant to Rule 424(b)(5) under the
Securities Act, dated September 6, 2024 (the “Prospectus Supplement”).
We understand the Shares are
to be issued by the Company and sold by Oppenheimer & Co., Inc. pursuant to the Distribution Agreement, as described in
the Prospectus Supplement, and the form of which is being filed with the Commission as Exhibit 1.1 to the Company’s Current
Report on Form 8-K, filed on the date hereof.
In connection with this opinion,
we have (i) investigated such questions of law, (ii) examined originals or certified, conformed or reproduction copies of such
agreements, instruments, documents and records of the Company, such certificates of public officials and such other documents and (iii) received
such information from officers and representatives of the Company as we have deemed necessary or appropriate for the purposes of this
opinion.
In all such examinations,
we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of original and certified
documents and the conformity to original or certified documents of all copies submitted to us as conformed or reproduction copies. As
to various questions of fact relevant to the opinion expressed herein, we have relied upon, and assume the accuracy of, the representations
and warranties set forth in the Distribution Agreement, and certificates and oral or written statements and other information of or from
public officials and officers and representatives of the Company.
Based upon the foregoing and
subject to the limitations, qualifications and assumptions set forth herein, we are of the opinion that the Shares have been duly authorized
for issuance, and when issued and paid for in accordance with the terms and conditions of the Distribution Agreement, the Shares will
be validly issued, fully paid and non-assessable.
The opinion expressed herein
is limited to the applicable provisions of the General Corporation Law of the State of Delaware (the “DGCL”), as currently
in effect, and reported judicial decisions interpreting such provisions of the DGCL.
The opinion expressed herein
is limited to the matters stated herein and no opinion is implied or may be inferred beyond the matters expressly stated herein. We undertake
no obligation to supplement this letter if any applicable laws change after the date hereof or if we become aware of any facts that might
change the opinion expressed herein after that date or for any other reason.
We hereby consent to the filing
of this opinion as Exhibit 5.1 to the Current Report on Form 8-K filed by the Company on the date hereof and which is incorporated
by reference into the Prospectus and to the references to this firm under the caption “Legal Matters” in the Prospectus
Supplement. In giving these consents, we do not admit that we are “experts” within the meaning of Section 11 of the Securities
Act or within the category of persons whose consent is required by Section 7 of the Securities Act.
| |
Very truly yours, |
| |
|
| |
/s/ Lowenstein Sandler LLP |
| |
|
| |
Lowenstein Sandler LLP |
v3.24.2.u1
Cover
|
Sep. 06, 2024 |
| Cover [Abstract] |
|
| Document Type |
8-K
|
| Amendment Flag |
false
|
| Document Period End Date |
Sep. 06, 2024
|
| Entity File Number |
001-40237
|
| Entity Registrant Name |
GAIN
THERAPEUTICS, INC.
|
| Entity Central Index Key |
0001819411
|
| Entity Tax Identification Number |
85-1726310
|
| Entity Incorporation, State or Country Code |
DE
|
| Entity Address, Address Line One |
4800
Montgomery Lane
|
| Entity Address, Address Line Two |
Suite 220
|
| Entity Address, City or Town |
Bethesda
|
| Entity Address, State or Province |
MD
|
| Entity Address, Postal Zip Code |
20814
|
| City Area Code |
301
|
| Local Phone Number |
500-1556
|
| Written Communications |
false
|
| Soliciting Material |
false
|
| Pre-commencement Tender Offer |
false
|
| Pre-commencement Issuer Tender Offer |
false
|
| Title of 12(b) Security |
Common
Stock, par value $0.0001
|
| Trading Symbol |
GANX
|
| Security Exchange Name |
NASDAQ
|
| Entity Emerging Growth Company |
true
|
| Elected Not To Use the Extended Transition Period |
false
|
| X |
- DefinitionBoolean flag that is true when the XBRL content amends previously-filed or accepted submission.
| Name: |
dei_AmendmentFlag |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionFor the EDGAR submission types of Form 8-K: the date of the report, the date of the earliest event reported; for the EDGAR submission types of Form N-1A: the filing date; for all other submission types: the end of the reporting or transition period. The format of the date is YYYY-MM-DD.
| Name: |
dei_DocumentPeriodEndDate |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:dateItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionThe type of document being provided (such as 10-K, 10-Q, 485BPOS, etc). The document type is limited to the same value as the supporting SEC submission type, or the word 'Other'.
| Name: |
dei_DocumentType |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:submissionTypeItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionAddress Line 1 such as Attn, Building Name, Street Name
| Name: |
dei_EntityAddressAddressLine1 |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:normalizedStringItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionAddress Line 2 such as Street or Suite number
| Name: |
dei_EntityAddressAddressLine2 |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:normalizedStringItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- Definition
+ References
+ Details
| Name: |
dei_EntityAddressCityOrTown |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:normalizedStringItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionCode for the postal or zip code
| Name: |
dei_EntityAddressPostalZipCode |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:normalizedStringItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionName of the state or province.
| Name: |
dei_EntityAddressStateOrProvince |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:stateOrProvinceItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionA unique 10-digit SEC-issued value to identify entities that have filed disclosures with the SEC. It is commonly abbreviated as CIK. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
| Name: |
dei_EntityCentralIndexKey |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:centralIndexKeyItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionIndicate if registrant meets the emerging growth company criteria. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
| Name: |
dei_EntityEmergingGrowthCompany |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionCommission file number. The field allows up to 17 characters. The prefix may contain 1-3 digits, the sequence number may contain 1-8 digits, the optional suffix may contain 1-4 characters, and the fields are separated with a hyphen.
| Name: |
dei_EntityFileNumber |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:fileNumberItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionTwo-character EDGAR code representing the state or country of incorporation.
| Name: |
dei_EntityIncorporationStateCountryCode |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:edgarStateCountryItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionThe exact name of the entity filing the report as specified in its charter, which is required by forms filed with the SEC. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
| Name: |
dei_EntityRegistrantName |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:normalizedStringItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionThe Tax Identification Number (TIN), also known as an Employer Identification Number (EIN), is a unique 9-digit value assigned by the IRS. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
| Name: |
dei_EntityTaxIdentificationNumber |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:employerIdItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionLocal phone number for entity.
| Name: |
dei_LocalPhoneNumber |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:normalizedStringItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 13e
-Subsection 4c
| Name: |
dei_PreCommencementIssuerTenderOffer |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 14d
-Subsection 2b
| Name: |
dei_PreCommencementTenderOffer |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionTitle of a 12(b) registered security. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b
| Name: |
dei_Security12bTitle |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:securityTitleItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionName of the Exchange on which a security is registered. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection d1-1
| Name: |
dei_SecurityExchangeName |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:edgarExchangeCodeItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as soliciting material pursuant to Rule 14a-12 under the Exchange Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Section 14a
-Number 240
-Subsection 12
| Name: |
dei_SolicitingMaterial |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionTrading symbol of an instrument as listed on an exchange.
| Name: |
dei_TradingSymbol |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:tradingSymbolItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as written communications pursuant to Rule 425 under the Securities Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Securities Act
-Number 230
-Section 425
| Name: |
dei_WrittenCommunications |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
Gain Therapeutics (NASDAQ:GANX)
Historical Stock Chart
From Nov 2024 to Dec 2024
Gain Therapeutics (NASDAQ:GANX)
Historical Stock Chart
From Dec 2023 to Dec 2024
