Exhibit 10.1


 


PURCHASE AGREEMENT


 


by and between


 


ONCOBIOLOGICS,
Inc.


 


and


 


BIOLEXIS PTE. LIMITED


 


Dated November 5, 2018


 




     


     


    

 





TABLE OF
CONTENTS


 


	 	 	Page
	 	 	 
	 	Article I	 
	 	 	 
	 	DEFINITIONS	 
	 	 	 
	Section 1.01	Certain Defined Terms	1
	Section 1.02	Other Defined Terms	7
	 	 	 
	 	Article II	 
	 	 	 
	 	PURCHASE AND SALE OF SHARES	 
	 	 	 
	Section 2.01	Purchase of the Shares	9
	Section 2.02	Initial Closing	9
	Section 2.03	Subsequent Closings	9
	Section 2.04	Purchase Price	10
	Section 2.05	Purchase Deliverables	11
	 	 	 
	 	Article III	 
	 	 	 
	 	REPRESENTATIONS AND WARRANTIES OF INVESTOR	 
	 	 	 
	Section 3.01	Organization; Authority	12
	Section 3.02	Validity; Enforcement	12
	Section 3.03	No Conflicts	12
	Section 3.04	Investor Status	13
	Section 3.05	Understandings or Arrangements	13
	Section 3.06	Transfer or Resale	13
	Section 3.07	Legends	13
	Section 3.08	No General Solicitation	13
	Section 3.09	Foreign Purchasers	14
	 	 	 
	 	Article IV	 
	 	 	 
	 	REPRESENTATIONS AND WARRANTIES OF THE COMPANY	 
	 	 	 
	Section 4.01	Organization and Qualification; Subsidiaries	14
	Section 4.02	Authorization; Enforcement; Validity	14
	Section 4.03	Capitalization	15
	Section 4.04	Issuance of Shares	16
	Section 4.05	No Conflicts	16
	Section 4.06	Consents	17
	Section 4.07	Acknowledgment Regarding Investor’s Purchase of Shares	17
	Section 4.08	SEC Documents; Financial Statements	18


 




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	Section 4.09	Absence of Certain Changes	18
	Section 4.10	No Undisclosed Events, Liabilities, Developments or Circumstances	19
	Section 4.11	Certificate of Incorporation and Bylaws	19
	Section 4.12	Permits; Compliance	19
	Section 4.13	Anti-Corruption; Anti-Money Laundering; Sanctions	20
	Section 4.14	Sarbanes-Oxley Act	21
	Section 4.15	Transactions With Affiliates	21
	Section 4.16	Absence of Litigation	21
	Section 4.17	Insurance	21
	Section 4.18	Employee Benefit Matters	22
	Section 4.19	Labor and Employment Matters	23
	Section 4.20	Real Property; Title	23
	Section 4.21	Intellectual Property	23
	Section 4.22	Environmental Laws	26
	Section 4.23	Material Contracts	26
	Section 4.24	Subsidiary Rights	26
	Section 4.25	Tax Status	26
	Section 4.26	Internal Accounting and Disclosure Controls	27
	Section 4.27	Off Balance Sheet Arrangements	27
	Section 4.28	Special Committee Approvals	27
	Section 4.29	Investment Company Status	27
	Section 4.30	Manipulation of Price	28
	Section 4.31	U.S. Real Property Holding Corporation	28
	Section 4.32	Transfer Taxes	28
	Section 4.33	Shell Company Status	28
	Section 4.34	Disclosure	28
	 	 	 
	 	Article V	 
	 	 	 
	 	COVENANTS	 
	 	 	 
	Section 5.01	Conduct of Business	28
	Section 5.02	Blue Sky	29
	Section 5.03	Fees	29
	Section 5.04	Pledge of Shares	29
	Section 5.05	Disclosure of Transactions and Other Material Information	30
	Section 5.06	Listing of Shares; Nasdaq Notices	30
	 	 	 
	 	Article VI	 
	 	 	 
	 	CONDITIONS TO THE OBLIGATIONS OF THE COMPANY	 
	 	 	 
	Section 6.01	Conditions to the Obligations of the Company at the Initial Closing	30
	Section 6.02	Conditions to the Obligations of the Company at the Subsequent Closings	31


 




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	 	Article VII	 
	 	 	 
	 	CONDITIONS TO THE OBLIGATIONS OF INVESTOR	 
	 	 	 
	Section 7.01	Conditions to the Obligations of Investor at the Initial Closing	31
	Section 7.02	Conditions to the Obligations of Investor at the Subsequent Closings	32
	 	 	 
	 	Article VIII	 
	 	 	 
	 	TERMINATION	 
	 	 	 
	Section 8.01	Termination	32
	Section 8.02	Effect of Termination; Certain Fees and Expenses	33
	 	 	 
	 	Article IX	 
	 	 	 
	 	MISCELLANEOUS	 
	 	 	 
	Section 9.01	Governing Law; Jurisdiction; Waiver of Jury Trial	34
	Section 9.02	Counterparts	34
	Section 9.03	Interpretation; Headings	35
	Section 9.04	Severability	35
	Section 9.05	Entire Agreement; Amendments	35
	Section 9.06	Notices	35
	Section 9.07	Assignment; No Third Party Beneficiaries	36
	Section 9.08	Waiver	36
	Section 9.09	Survival	36
	Section 9.10	Specific Performance	36




 




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PURCHASE AGREEMENT


 


This PURCHASE AGREEMENT
(this “Agreement”), dated as of November 5, 2018, is entered into by and between Oncobiologics, Inc., a Delaware
corporation (the “Company”), and BioLexis Pte. Limited, a Singapore private limited company (“Investor”).


 


WHEREAS, Investor wishes
to purchase from the Company, and the Company wishes to sell and issue to Investor, pursuant to the terms and conditions set forth
in this Agreement, an aggregate of $20.0 million of shares (the “Shares”) of common stock, par value $0.01 per
share, of the Company (the “Common Stock”), in four tranches as provided herein;


 


NOW, THEREFORE, in consideration
of the premises and the mutual covenants contained herein and for other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Company and Investor hereby agree as follows:


 


Article
I



DEFINITIONS


 


Section 1.01         Certain
Defined Terms.  For purposes of this Agreement, the following terms shall have the following meanings:


 


“2011 Stock
Incentive Plan” means the Oncobiologics, Inc. Stock Incentive Plan established by the Company, effective as of October
13, 2011.


 


“2014 Common
Stock Warrants” means the warrants issued by the Company pursuant to that certain Investor Rights Agreement, dated as
of March 10, 2014, among the Company and the other parties thereto.


 


“2015 Equity
Incentive Plan” means the Oncobiologics, Inc. 2015 Equity Incentive Plan, as adopted by the Company Board on December
4, 2015.


 


“2016 Common
Stock Warrants” means the warrants issued by the Company pursuant to the Note and Warrant Purchase Agreement.


 


“2016 Employee
Stock Purchase Plan” means the Oncobiologics, Inc. 2016 Employee Stock Purchase Plan, as adopted by the Company Board
on January 28, 2016.


 


“2017 Common
Stock Warrants” means the warrants issued by the Company pursuant to the 2017 Purchase Agreement at an exercise price
of $0.90 per share, subject to adjustment as described therein.


 


“2017 Purchase
Agreement” means that certain purchase agreement, dated as of September 7, 2017, by and between the Company and Investor.


 


“2018 Common
Stock Warrants” means the warrants issued by the Company pursuant to the 2018 Purchase Agreement at an exercise price
of $0.975 per share, subject to adjustment as described therein.


 






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“2018 Purchase
Agreement” means that certain purchase agreement, dated as of May 11, 2018, by and between the Company and Investor.


 


“Action”
means any litigation, suit, claim, action, proceeding, arbitration, mediation, hearing, inquiry or investigation (in each case,
whether civil, criminal or investigative).


 


“Affiliate”
of a specified Person means a Person who, directly or indirectly through one or more intermediaries, controls, is controlled by,
or is under common control with, such specified Person.


 


“Business
Day” means any day other than a Saturday, Sunday or other day on which commercial banks in New York, New York, or Singapore,
Republic of Singapore are authorized or required by Law to remain closed.


 


“Code”
means the Internal Revenue Code of 1986, as amended.


 


“Company Intellectual
Property” means the Owned Intellectual Property and the Licensed Intellectual Property.


 


“Company IP
Agreements” means all Contracts to which any of the Company or any of its Subsidiaries is a party or by which the Company
or any of its Subsidiaries is bound, concerning Intellectual Property or IT Assets, including (a) Contracts pursuant to which the
Company or any of its Subsidiaries grants a license, covenant not to sue or other right with respect to any Intellectual Property,
and (b) Contracts pursuant to which the Company or any of its Subsidiaries receives a license, covenant not to sue or other right
under any Intellectual Property.


 


“Company IT
Assets” means all IT Assets owned by the Company or any of its Subsidiaries, or licensed or leased by the Company or
any of its Subsidiaries pursuant to any written agreement.


 


“Company Permits”
means franchises, grants, authorizations, licenses, permits, easements, variances, exceptions, consents, concessions, registrations,
clearances, exemptions, certificates, approvals and orders of any Governmental Entity necessary for each of the Company and its
Subsidiaries to own, lease and operate their respective properties and assets or to carry on their respective businesses as they
are now being conducted.


 


“Company Plan”
means any employee compensation and benefit plan, program or arrangement sponsored, maintained or contributed to by the Company
or any ERISA Affiliate or with respect to which the Company or any ERISA Affiliate has or may have any actual or contingent liability
or obligation (including any such obligations under any terminated plan or arrangement), including “employee benefit plans,”
as defined in Section 3(3) of ERISA, Multiemployer Plans, deferred compensation plans, stock option or other equity compensation
plans, stock purchase plans, phantom stock plans, bonus plans, fringe benefit plans, life, health, dental, vision, hospitalization,
disability and other insurance plans, employee assistance programs, severance or termination pay plans and policies, and sick pay
and vacation plans or arrangements, whether or not described in Section 3(3) of ERISA, and any other material employee benefit
plan or agreement sponsored and maintained by Company or any ERISA Affiliate for the benefit of any current or former Service Provider
of the Company or any ERISA Affiliate.


 






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“Contract”
means any oral or written binding contract, subcontract, agreement, note, bond, mortgage, indenture, lease, sublease, license,
sublicense, permit, franchise or other instrument, obligation, commitment or arrangement or understanding of any kind or character.


 


“control”
(including the terms “controlled by” and “under common control with”) means the possession,
directly or indirectly, or as trustee or executor, of the power to direct or cause the direction of the management and policies
of a Person, whether through the ownership of voting securities, as trustee or executor, by Contract or credit arrangement or otherwise.


 


“DGCL”
means the General Corporation Law of the State of Delaware, as amended.


 


“Encumbrances”
means mortgages, pledges, liens, security interests, conditional and installment sale agreements, encumbrances, charges or other
claims of third parties or restrictions of any kind, including any easement, reversion interest, right of way or other encumbrance
to title, limitations on voting rights, or any option, right of first refusal or right of first offer.


 


“Environmental
Law” means any Law relating to (a) releases or threatened releases of Hazardous Substances or materials containing
Hazardous Substances, (b) the manufacture, handling, transport, use, treatment, storage or disposal of Hazardous Substances
or materials containing Hazardous Substances, (c) exposure to Hazardous Substances, (d) climate change or global warming,
or (e) pollution or protection of the environment, health, safety or natural resources, including natural resource damages.


 


“Environmental
Permits” means all permits, licenses and other authorizations required under any Environmental Law.


 


“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended through the date hereof.


 


“ERISA Affiliate”
means any trade or business, whether or not incorporated, that, together with the Company, would be deemed a “single employer”
within the meaning of Section 4001(b)(i) of ERISA.


 


“Exchange
Act” means the Securities Exchange Act of 1934, as amended.


 


“Funding Milestones”
means those certain milestones as agreed between the Company and BioLexis.


 


“GAAP”
means United States generally accepted accounting principles.


 


“Governmental
Entity” means any federal, national, foreign, supranational, state, provincial, county, local or other government, governmental,
regulatory or administrative authority, agency, instrumentality or commission or any court, tribunal, or judicial or arbitral body
of competent jurisdiction.


 






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“Hazardous
Substances” means (a) those substances, materials or wastes defined in or regulated under the following United States
federal statutes and their state counterparts, as each may be amended from time to time, and all regulations thereunder: the Hazardous
Materials Transportation Act, the Resource Conservation and Recovery Act, the Comprehensive Environmental Response, Compensation
and Liability Act, the Clean Water Act, the Safe Drinking Water Act, the Atomic Energy Act, the Federal Insecticide, Fungicide,
and Rodenticide Act and the Clean Air Act, (b) petroleum and petroleum products, including crude oil and any fractions thereof,
(c) natural gas, synthetic gas, and any mixtures thereof, (d) polychlorinated biphenyls, asbestos, toxic mold and radon,
(e) any contaminant or pollutant, and (f) any other substance, material or waste regulated by any Governmental Entity
or that gives rise to liability, obligations or costs because or on account of its potential or actual threat to the environment,
human health, flora, fauna or natural resources, or because or on account of it being explosive, corrosive, flammable or radioactive.


 


“Indebtedness”
means, with respect to any Person, without duplication: (a) all indebtedness of such Person, whether or not contingent, for
borrowed money, including all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments, (b) all
obligations of such Person for the deferred purchase of property or services, (c) all indebtedness created or arising under
any conditional sale or other title retention agreement with respect to property acquired by such Person (even if the rights and
remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property),
(d) all obligations of such Person as lessee under Leases that have been or should be, in accordance with GAAP, recorded as
capital leases, (e) all obligations, contingent or otherwise, of such Person under acceptance, letter of credit or similar
facilities, (f) all liabilities or obligations with respect to interest rate swaps, caps, collars and similar hedging obligations,
(g) all Indebtedness of others referred to in clauses (a) through (f) above guaranteed (or in effect guaranteed)
directly or indirectly in any manner by such Person, and (h) all Indebtedness of others referred to in clauses (a) through
(g) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured
by) any Encumbrance on property (including accounts and Contract rights) owned by such Person, even though such Person has not
assumed or become liable for the payment of such Indebtedness.


 


“Intellectual
Property” means, collectively and worldwide, any and all (a) moral rights and copyrights (whether registered or unregistered)
in any works of authorship, and all applications, registrations, and renewals in connection therewith, (b) inventions and discoveries
(whether or not patentable and whether or not reduced to practice), all improvements thereto, and all patents, patent applications,
statutory invention registrations and patent disclosures, together with all reissuances, continuations, continuations-in-part,
revisions, extensions, and reexaminations thereof, (c) trade names, trademarks, service marks, brand names, corporate names, domain
names URLs, trade dress, and other identifiers of source or goodwill, including all goodwill associated therewith, and all applications,
registrations, and renewals in connection therewith, (d) trade secrets and confidential and proprietary information, including
confidential ideas, research and development, know-how, formulas, compositions, manufacturing and production processes and techniques,
technical data, designs, drawings, specifications, customer, sales prospect, distributor and supplier lists, pricing and cost information,
and marketing plans and proposals), (e) computer programs, applications, systems and code, including software implementations of
algorithms, models and methodologies, program interfaces, and source code and object code, development and design tools, library
functions and compilers, (f) databases and data collections and all rights therein, (g) any similar, corresponding or equivalent
rights to any of the foregoing, (h) documents or other tangible media containing any of the foregoing, and (i) rights to prosecute
and perfect the foregoing through administrative prosecution, registration, recordation, or other proceeding, and all causes of
action and rights to sue or seek other remedies arising from or relating to the foregoing, including for any past or ongoing infringement,
misuse or misappropriation.


 






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“IT Assets”
means computers, software, systems, hardware, networks, firmware, middleware, servers, workstations, routers, hubs, switches, data
communications lines, and all other information technology equipment and elements, and all associated documentation associated
with any of the foregoing.


 


“knowledge
of the Company” or “the Company’s knowledge” means the knowledge, after reasonable inquiry,
of Pankaj Mohan, Lawrence Kenyon, Stephen McAndrew and Kenneth Bahrt.


 


“Law”
means any U.S. or non-U.S. federal, state, local, national, supranational, foreign or administrative law (including common law),
statute, ordinance, regulation, requirement, regulatory interpretation, rule, code or Order.


 


“Leased Real
Property” means the real property leased, subleased, licensed or otherwise occupied by the Company or any of its Subsidiaries
as tenant, sublessee, licensee or occupier, together with, to the extent leased by the Company or any of its Subsidiaries, all
buildings and other structures, facilities or improvements currently or hereafter located thereon, all fixtures, systems and equipment
affixed thereto and all easements, licenses, rights, hereditaments and appurtenances relating to the foregoing.


 


“Lease”
means any and all leases, subleases, licenses or other occupancy agreements, sale/leaseback arrangements or similar arrangements.


 


“Licensed
Intellectual Property” means all Intellectual Property that the Company or any of its Subsidiaries is granted a license
to use or is otherwise permitted to use by any Person pursuant to the Company IP Agreements.


 


“Material
Adverse Effect” means any event, circumstance, change, condition, occurrence or effect that, individually or in the aggregate
with any other event, circumstance, change, condition, occurrence or effect, (a) has had, or would reasonably be expected to have,
a material adverse effect on the business, properties, operations, assets, liabilities (including contingent liabilities), prospects,
results of operations or condition (financial or otherwise) of the Company or any of its Subsidiaries, or (b) has a material
adverse effect on, or prevents or materially delays, the ability of the Company to consummate the transactions contemplated hereby
or in any of the other Transaction Documents.


 


“Minimum Price”
means $0.9327.


 


“Multiemployer
Plan” means any employee benefit plan of the type described in Sections 3(37) and 4001(a)(3) of ERISA, to which
the Company or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made
or been obligated to make contributions.


 






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“Note and
Warrant Purchase Agreement” means that certain Note and Warrant Purchase Agreement, dated as of December 22, 2016, among
the Company and the other parties thereto, as amended by that certain First Amendment to Note and Warrant Purchase Agreement, dated
April 13, 2017, as further amended by the September 2017 Amendment, and as further amended by the Second NWPA Amendment.


 


“Order”
means any order (temporary or otherwise), judgment, injunction, award, decision, determination, stipulation, ruling, subpoena,
writ, decree or verdict entered by or with any Governmental Entity.


 


“Owned Intellectual
Property” means all Intellectual Property owned or purportedly owned by the Company or any of its Subsidiaries.


 


“Performance
Based Stock Units” means Participant Performance Stock Units granted pursuant to Article IX of the 2011 Stock Incentive
Plan.


 


“Permitted
Encumbrances” means such of the following as to which no enforcement, collection, execution, levy or foreclosure proceeding
shall have been commenced and as to which none of the Company or any of its Subsidiaries is otherwise subject to civil or criminal
liability due to its existence: (a) liens for Taxes not yet due and payable or the validity or amount of which is being contested
in good faith by appropriate proceedings, (b) materialmen’s, mechanics’, carriers’, workmen’s and
repairmen’s liens and other similar liens arising in the ordinary course of business securing obligations (i) as to
which there is no default on the part of the Company or any of its Subsidiaries or the validity or amount of which is being contested
in good faith by appropriate proceedings directly conducted by the Company and for which adequate reserves are maintained on the
books of the Company, (ii) which are not overdue for a period of more than 30 days, and (iii) which do not, individually
or in the aggregate, materially adversely affect the value or the use or occupancy of such property for its current and anticipated
purposes, (c) pledges or deposits to secure obligations under workers’ compensation laws or similar legislation or to
secure public or statutory obligations, and (d) minor survey exceptions, customary utility easements and other minor customary
encumbrances on title to real property that (i) were not incurred in connection with any Indebtedness, (ii) do not render
title to the property encumbered thereby unmarketable and (iii) do not, individually or in the aggregate, materially adversely
affect the value of or the use or occupancy of such property for its current and anticipated purposes.


 


“Person”
means an individual, company, corporation, partnership, limited partnership, limited liability company, syndicate, person (including
a “person” as defined in Section 13(d)(3) of the Exchange Act), trust, association or entity or government, political
subdivision, agency or instrumentality of a government.


 


“Restricted
Stock Unit” means an RSU (within the meaning of the 2015 Equity Incentive Plan) granted pursuant to Section 6 of
the 2015 Equity Incentive Plan.


 






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“Second NWPA
Amendment” means that certain Second Note and Warrant Purchase Agreement Amendment and Waiver dated as of the date hereof
by and among the Company and the holders of the Senior Notes.


 


“Securities
Act” means the Securities Act of 1933, as amended.


 


“Series A
Warrants” means the Series A warrants to purchase shares of Common Stock at a purchase price of $6.60 per share, subject
to adjustment as described therein.


 


“Series B
Warrants” means the Series B warrants to purchase shares of Common Stock at a purchase price of $8.50 per share, subject
to adjustment as described therein.


 


“Service Provider”
means each of the officers, employees, directors and independent contractors of the Company and each of its Subsidiaries.


 


“Special Committee”
means that certain committee of the Company Board comprised solely of independent directors and no related person of Investor as
such term is defined under Item 404 of Regulation S-K under the Securities Act.


 


“Subsidiary”
of any specified Person means an Affiliate controlled by such Person, directly or indirectly, through one or more intermediaries.


 


“Taxes”
means (a) any and all taxes, fees, levies, duties, tariffs, imposts and other charges of any kind (together with any and all interest,
penalties, additions to tax and additional amounts imposed with respect thereto) imposed by any Governmental Entity, including
taxes or other charges on or with respect to income, franchise, windfall or other profits, gross receipts, property, sales, use,
capital stock, payroll, employment, social security, workers’ compensation, unemployment compensation or net worth, (b) taxes
or other charges in the nature of excise, withholding, ad valorem, stamp, transfer, value-added or gains taxes, (c) license, registration
and documentation fees, and (d) customs duties, tariffs and similar charges.


 


“Transaction
Documents” means collectively, this Agreement and each of the other agreements and instruments entered into or delivered
by any of the parties hereto in connection with the transactions contemplated hereby and thereby, as may be amended from time to
time.


 


Section 1.02         Other
Defined Terms. The following terms have the meanings set forth in the Sections set forth below:


 


	Defined Term	 	Location of Definition
	 	 	 
	8-K Filing	 	§5.05
	Aggregate Final Purchase Price	 	§2.04(d)
	Aggregate Initial Purchase Price	 	§2.04(a)
	Aggregate Second Purchase Price	 	§2.04(b)
	Aggregate Third Purchase Price	 	§2.04(c)
	Agreement	 	Preamble
	Anti-Money Laundering and Anti-Terrorism Financing Laws	 	§4.13(c)
	Anti-Corruption Laws	 	§4.13(e)



 






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	Defined Term	 	Location of Definition
	 	 	 
	Bankruptcy Exceptions	 	§3.02
	Bylaws	 	§4.11
	Certificate of Incorporation	 	§4.11
	Common Stock	 	Recitals
	Company	 	Preamble
	Company Affiliate	 	§4.13(a)
	Company Board	 	§4.02
	Final Closing	 	§2.03(c)
	Final Closing Date	 	§2.03(c)
	Final Purchase	 	§2.01
	Financial Statements	 	§4.08
	Initial Announcement	 	§5.09
	Initial Closing	 	§2.02
	Initial Closing Date	 	§2.02
	Initial Purchase	 	§2.01
	Investor	 	Preamble
	Investor Expenses	 	§5.03
	Investor Rights Agreement	 	Recitals
	IRS	 	§4.18(a)
	Material Contract	 	§4.23
	Nasdaq	 	§4.05
	Nasdaq Notices	 	§4.06
	Other Securities	 	§4.03(a)
	Personal Information	 	§4.21(h)
	Preferred Stock	 	§4.03(a)
	Purchase	 	§2.01
	Registered Intellectual Property	 	§4.21
	Sanctions	 	§4.13(a)
	SEC	 	§4.07
	SEC Documents	 	§4.07
	Second Closing	 	§2.03(a)
	Second Closing Date	 	§2.03(a)
	Securities	 	Recitals
	Senior Notes	 	§7.01(c)
	Second Purchase	 	§2.01
	Shares	 	Recitals
	Third Closing	 	§2.03(b)
	Third Closing Date	 	§2.03(b)
	Third Purchase	 	§2.01



 






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Article
II



PURCHASE AND SALE OF SHARES


 


Section
2.01         Purchase of the Shares. Subject to the terms and conditions
of this Agreement and subject to the satisfaction (or, to the extent permitted by applicable Law, written waiver by the party
entitled to the benefit thereof) of the applicable conditions set forth in Articles VI and VII of this
Agreement, (a) at the Initial Closing, the Company shall issue, sell and deliver to Investor, and Investor shall purchase and
acquire from the Company (the “Initial Purchase”), an amount of Shares at the Minimum Price having an
aggregate purchase price equal to the Aggregate Initial Purchase Price, (b) at the Second Closing, the Company shall issue,
sell and deliver to Investor, and Investor shall purchase and acquire from the Company (the “Second
Purchase”), an amount of Shares at the Minimum Price having an aggregate purchase price equal to the Aggregate
Second Purchase Price, (c) at the Third Closing, the Company shall issue, sell and deliver to Investor, and Investor shall
purchase and acquire from the Company (the “Third Purchase”), an amount of Shares at the Minimum Price
having an aggregate purchase price equal to the Aggregate Third Purchase Price, and (d) at the Final Closing, the Company
shall issue, sell and deliver to Investor, and Investor shall purchase and acquire from the Company (the “Final
Purchase”), an amount of Shares at the Minimum Price having an aggregate purchase price equal to the Aggregate
Final Purchase Price.


 


Section 2.02         Initial
Closing. Subject to the terms and conditions of this Agreement, the closing of the Initial Purchase (the “Initial
Closing”) shall occur upon the execution and delivery of this Agreement and the full satisfaction or, to the extent
permitted by applicable Law, waiver in writing by the party entitled to the benefit thereof, of all of the conditions to the Initial
Closing set forth in Section 6.01 and Section 7.01 of this Agreement (other than those conditions that by their
nature are to be satisfied at the Initial Closing, but subject to the satisfaction or written waiver of those conditions at such
time) at the offices of Shearman & Sterling LLP, 599 Lexington Avenue, New York, New York 10022, or at such other place as
shall be agreed between the Company and Investor (the date on which the Initial Closing occurs, the “Initial Closing
Date”).


 


Section 2.03         Subsequent
Closings.


 


(a)          Subject
to the terms and conditions of this Agreement, the closing of the Second Purchase (the “Second Closing”) shall
occur at 10:00 a.m. (New York City time) at any date beginning on or after the date hereof but in no event later than December
3, 2018 on any Business Day as mutually agreed by the Company and Investor provided that as at such date all of the conditions
to the Second Closing set forth in Section 6.02 and Section 7.02 of this Agreement have been fully satisfied or,
to the extent permitted by applicable Law, waived in writing by the party entitled to the benefit thereof (other than those conditions
that by their nature are to be satisfied at the Second Closing, but subject to the satisfaction or written waiver of those conditions
at such time) at the offices of Shearman & Sterling LLP, 599 Lexington Avenue, New York, New York 10022, or at such other
place and time as shall be agreed between the Company and Investor (the date on which the Second Closing occurs, the “Second
Closing Date”).


 






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(b)          Subject
to the terms and conditions of this Agreement, the closing of the Third Purchase (the “Third Closing”) shall
occur at 10:00 a.m. (New York City time) at any date beginning on or after the Second Closing Date but in no event later than
January 3, 2019 on any Business Day as mutually agreed by the Company and Investor provided that as at such date all of the conditions
to the Third Closing set forth in Section 6.02 and Section 7.02 of this Agreement have been fully satisfied or,
to the extent permitted by applicable Law, waived in writing by the party entitled to the benefit thereof (other than those conditions
that by their nature are to be satisfied at the Third Closing, but subject to the satisfaction or written waiver of those conditions
at such time) at the offices of Shearman & Sterling LLP, 599 Lexington Avenue, New York, New York 10022, or at such other
place and time as shall be agreed between the Company and Investor (the date on which the Third Closing occurs, the “Third
Closing Date”).


 


(c)          Subject
to the terms and conditions of this Agreement, the closing of the Final Purchase (the “Final Closing”) shall
occur at 10:00 a.m. (New York City time) at any date beginning on or after the Third Closing Date but in no event later than February
1, 2019 on any Business Day as mutually agreed by the Company and Investor provided that as at such date all of the conditions
to the Final Closing set forth in Section 6.02 and Section 7.02 of this Agreement have been fully satisfied or,
to the extent permitted by applicable Law, waived in writing by the party entitled to the benefit thereof (other than those conditions
that by their nature are to be satisfied at the Final Closing, but subject to the satisfaction or written waiver of those conditions
at such time) at the offices of Shearman & Sterling LLP, 599 Lexington Avenue, New York, New York 10022, or at such other
place and time as shall be agreed between the Company and Investor (the date on which the Final Closing occurs, the “Final
Closing Date”).


 


Section 2.04         Purchase
Price.


 


(a)          In
respect of Shares included in the Initial Purchase, (i) the purchase price for each Share shall be the Minimum Price and (ii) the
aggregate purchase price for all Shares included in the Initial Purchase shall be $8.0 million (the “Aggregate Initial
Purchase Price”).


 


(b)          In
respect of Shares included in the Second Purchase, (i) the purchase price for each Share shall be the Minimum Price and (ii) the
aggregate purchase price for all Shares included in the Second Purchase shall be $4.0 million (the “Aggregate Second Purchase
Price”).


 


(c)          In
respect of Shares included in the Third Purchase, (i) the purchase price for each Share shall be the Minimum Price and (ii) the
aggregate purchase price for all Shares included in the Third Purchase shall be $4.0 million (the “Aggregate Third Purchase
Price”).


 


(d)          In
respect of Shares included in the Final Purchase, (i) the purchase price for each Share shall be the Minimum Price and (ii) the
aggregate purchase price for all Shares included in the Final Purchase shall be $4.0 million (the “Aggregate Final Purchase
Price”).


 






    	 	10	 



     


    

 


Section 2.05         Purchase
Deliverables. (a) At the Initial Closing, upon the terms and subject to the conditions of this Agreement:


 


(i)          Investor
shall (A) pay the Aggregate Initial Purchase Price to the Company by wire transfer of immediately available funds to the account
designated by the Company in writing prior to the date hereof, and (B) deliver to the Company duly executed counterparts of each
Transaction Document to which Investor is a party that is to be executed on the Initial Closing Date; and


 


(ii)         the
Company shall deliver to Investor (A) the Shares included in the Initial Purchase, and (B) duly executed counterparts of each other
Transaction Document to which the Company is a party that is to be executed on the Initial Closing Date.


 


(b)          At
the Second Closing, upon the terms and subject to the conditions of this Agreement:


 


(i)          Investor
shall (A) pay the Aggregate Second Purchase Price to the Company by wire transfer of immediately available funds to the account
designated by the Company in writing at least two (2) Business Days prior to the Second Closing Date, and (B) deliver to the Company
duly executed counterparts of each Transaction Document to which Investor is a party that is to be executed on the Second Closing
Date; and


 


(ii)         the
Company shall deliver to Investor (A) the Shares included in the Second Purchase, and (B) duly executed counterparts of each other
Transaction Document to which the Company is a party that is to be executed on the Second Closing Date.


 


(c)          At
the Third Closing, upon the terms and subject to the conditions of this Agreement:


 


(i)          Investor
shall (A) pay the Aggregate Third Purchase Price to the Company by wire transfer of immediately available funds to the account
designated by the Company in writing at least two (2) Business Days prior to the Third Closing Date, and (B) deliver to the Company
duly executed counterparts of each Transaction Document to which Investor is a party that is to be executed on the Third Closing
Date; and


 


(ii)         the
Company shall deliver to Investor (A) the Shares included in the Third Purchase, and (B) duly executed counterparts of each other
Transaction Document to which the Company is a party that is to be executed on the Third Closing Date.


 






    	 	11	 



     


    

 


(d)          At
the Final Closing, upon the terms and subject to the conditions of this Agreement:


 


(i)          Investor
shall (A) pay the Aggregate Final Purchase Price to the Company by wire transfer of immediately available funds to the account
designated by the Company in writing at least two (2) Business Days prior to the Final Closing Date, and (B) deliver to the Company
duly executed counterparts of each Transaction Document to which Investor is a party that is to be executed on the Second Closing
Date; and


 


(ii)         the
Company shall deliver to Investor (A) the Shares included in the Final Purchase, and (B) duly executed counterparts of each other
Transaction Document to which the Company is a party that is to be executed on the Final Closing Date.


 


Article
III



REPRESENTATIONS AND WARRANTIES OF INVESTOR


 


Investor hereby represents
and warrants to the Company (both as of the date of this Agreement and, unless such representation or warranty is specifically
made as of a date prior to the Initial Closing Date, the Second Closing Date, the Third Closing Date, or the Final Closing Date,
as applicable, the Initial Closing Date, the Second Closing Date, the Third Closing Date and the Final Closing Date) as follows:


 


Section 3.01         Organization;
Authority. Investor is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction
of its organization. Investor has the requisite power and authority to enter into and to consummate the transactions contemplated
by the Transaction Documents to which it is a party and otherwise to carry out its obligations hereunder and thereunder.


 


Section 3.02         Validity;
Enforcement. This Agreement has been duly and validly authorized, executed and delivered on behalf of Investor and constitutes
the legal, valid and binding obligation of Investor enforceable against Investor in accordance with its terms, except as limited
by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application
affecting enforcement of creditors’ rights generally (“Bankruptcy Exceptions”).


 


Section 3.03         No
Conflicts. The execution, delivery and performance by Investor of this Agreement and the other Transaction Documents to which
it is a party and the consummation by Investor of the transactions contemplated hereby and thereby will not (a) result in a violation
of the organizational documents of Investor, (b) conflict with, or constitute a default (or an event which with notice or lapse
of time or both would become a default) under, result in the creation of any Encumbrance upon any of the properties or assets
of Investor pursuant to, or give to others any rights of termination, amendment, acceleration or cancellation of, any Contract
or other instrument or obligation to which Investor is a party, or (c) result in a violation of any Law or Order applicable to
Investor, except, in the case of clauses (b) and (c) above, for such conflicts, defaults, rights, violations or other occurrences
which would not, individually or in the aggregate, have a material adverse effect on the ability of Investor to perform its obligations
hereunder.


 






    	 	12	 



     


    

 


Section 3.04         Investor
Status. At the time Investor was offered the Shares, it was, and as of the date hereof, it is, an “accredited investor”
as defined in Rule 501 under the Securities Act.


 


Section 3.05         Understandings
or Arrangements. Investor is acquiring the Shares as principal for its own account and has no direct or indirect arrangement
or understandings with any other persons to distribute such Shares; provided, that nothing contained herein shall be deemed to
prevent Investor from reselling the Shares in accordance with applicable securities laws.


 


Section 3.06         Transfer
or Resale. Investor understands that (a) the Shares have not been and are not being registered under the Securities Act or
any state securities laws, and may not be offered for sale, sold, assigned or transferred unless subsequently registered thereunder
or pursuant to an exemption therefrom, and (b) any sale of the Shares made in reliance on Rule 144 of the Securities Act may be
made only in accordance with the terms of Rule 144.


 


Section 3.07         Legends.
Investor understands that the certificates or other instruments representing the Shares shall bear any legend as required by the
“blue sky” laws of any state and a restrictive legend in substantially the following form (and a stop-transfer order
may be placed against transfer of such stock certificates or general statements):


 


THE SECURITIES REPRESENTED BY THIS
INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT
BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT WHILE A REGISTRATION STATEMENT RELATING THERETO IS IN EFFECT UNDER SUCH ACT
AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT OR SUCH LAWS. NOTWITHSTANDING
THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT
SECURED BY THE SECURITIES.


 


THE SECURITIES REPRESENTED BY THIS
CERTIFICATE ARE SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THE INVESTOR RIGHTS AGREEMENT, DATED SEPTEMBER 11, 2017, BY AND
BETWEEN ONCOBIOLOGICS, INC., AND BIOLEXIS PTE. LIMITED, AS IT MAY BE AMENDED FROM TIME TO TIME, COPIES OF WHICH ARE ON FILE WITH
AND AVAILABLE FROM THE SECRETARY OF ONCOBIOLOGICS, INC., WITHOUT COST.


 


Section 3.08         No
General Solicitation. Investor acknowledges that the Shares were not offered to Investor by means of any form of general or
public solicitation or general advertising, or publicly disseminated advertisements or sales literature, including (a) any advertisement,
article, notice or other communication published in any newspaper, magazine, website, or similar media, or broadcast over television
or radio, or (b) any seminar or meeting to which Investor was invited by any of the foregoing means of communications.


 






    	 	13	 



     


    

 


Section 3.09         Foreign
Purchasers. Investor hereby acknowledges it is not a United States person (as defined by Section 7701(a)(30) of the Internal
Revenue Code of 1986, as amended), and hereby represents that it has satisfied itself as to its compliance, in all material respects,
with the laws of its jurisdiction of organization that are applicable to Investor in connection with the Purchase contemplated
by this Agreement.


 


Article
IV


 


REPRESENTATIONS AND WARRANTIES OF THE COMPANY


 


The Company hereby represents
and warrants to Investor (both as of the date of this Agreement and, unless such representation or warranty is specifically made
as of a date prior to the Initial Closing Date, the Second Closing Date, the Third Closing Date, or the Final Closing Date, as
applicable, the Initial Closing Date, the Second Closing Date, the Third Closing Date, and the Final Closing Date) as follows:


 


Section 4.01         Organization
and Qualification; Subsidiaries. The Company and each of its Subsidiaries is an entity duly organized, validly existing and
in good standing under the Laws of the jurisdiction of its organization and has the requisite corporate or similar power and authority
and all necessary governmental approvals to own, lease and operate its properties and assets and to carry on its business as it
is now being conducted. The Company and each of its Subsidiaries is duly qualified or licensed to do business, and is in good
standing, in each jurisdiction where the character of the properties or assets owned, leased or operated by it or the nature of
its business makes such qualification or licensing necessary or desirable, except where the failure to be so qualified or licensed
and in good standing would not be material to the Company and its Subsidiaries, taken as a whole.


 


(a)          The
Company has two wholly-owned subsidiaries, neither of which is a “significant subsidiary” for purposes of Regulation
S-K of the Securities Act. The Company does not directly or indirectly own any equity or similar interest in, or any interest convertible
into or exchangeable or exercisable for any equity or similar interest in, any corporation, partnership, joint venture or other
business association or entity.


 


Section 4.02         Authorization;
Enforcement; Validity. The Company has the requisite power and authority to enter into and perform its obligations under this
Agreement and the other Transaction Documents and to issue the Shares in accordance with the terms hereof and thereof. The execution
and delivery of this Agreement and the other Transaction Documents by the Company, and the consummation by the Company of the
transactions contemplated hereby and thereby (including the issuance of the Shares) have been duly authorized by the Company’s
board of directors (the “Company Board”) and the Special Committee and other than any filings as may be required
by applicable federal and state securities laws, no further filing, consent or authorization is required by the Company, the Company
Board or the Company’s stockholders. This Agreement has been, and the other Transaction Documents to be delivered on or
prior to the Initial Closing, the Second Closing, the Third Closing, or the Final Closing, as the case may be, will be at or prior
to the Initial Closing, the Second Closing, the Third Closing, or the Final Closing, as the case may be, duly executed and delivered
by the Company, and upon such execution will constitute the legal, valid and binding obligations of the Company, enforceable against
the Company in accordance with their respective terms, except as limited by Bankruptcy Exceptions.


 






    	 	14	 



     


    

 


Section 4.03         Capitalization. 


 


(a)          The
authorized capital stock of the Company consists of 200,000,000 shares of Common Stock and 10,000,000 shares of preferred stock,
par value $0.01 per share (“Preferred Stock”). As of the date of this Agreement, (i) 72,220,351 shares of Common
Stock are issued and outstanding, all of which are duly authorized, validly issued, fully paid and non-assessable, (ii) 149,326
shares of Common Stock are reserved for issuance pursuant to outstanding Performance Based Stock Units, (iii) 61,398 shares of
Common Stock are reserved for issuance pursuant to outstanding Restricted Stock Units, (iv) 5,482,236 shares of Common Stock are
reserved for issuance pursuant to additional awards to be granted under the 2015 Equity Incentive Plan, (v) 545,162 shares of Common
Stock are reserved for issuance pursuant to the 2016 Employee Stock Purchase Plan, (vi) 11,938,071 shares of Common Stock are reserved
for issuance pursuant to the Senior Notes as amended by the Second NWPA Amendment; (vii) 814,340 2014 Common Stock Warrants are
outstanding, (viii) 3,882,001 2016 Common Stock Warrants are outstanding, (ix) 3,333,333 Series A Warrants are outstanding, (x)
no Series B Warrants are outstanding, (xi) 16,750,000 2017 Common Stock Warrants are outstanding, (xii) 20,512,820 2018 Common
Stock Warrants are outstanding, (xiii) 1,000,000 shares of Preferred Stock have been designated Series A Convertible Preferred
Stock, of which no shares are issued and outstanding, (xiv) 1,500,000 shares of Preferred Stock have been designated Series B Convertible
Preferred Stock, of which no shares are issued and outstanding; (xv) 200,000 shares of Preferred Stock have been designated Series
A-1 Convertible Preferred Stock, 60,383 shares of which are issued and outstanding, all of which are duly authorized, validly issued,
fully paid and non-assessable (xvi) no shares of Common Stock or Preferred Stock are held in the treasury of the Company, and (xvii)
no shares of Common Stock or Preferred Stock are held by the Subsidiaries of the Company. Except as disclosed in the SEC Documents:
(A) none of the Company’s or any Subsidiary’s capital stock is subject to preemptive rights or any other similar rights
or any Encumbrances suffered or permitted by the Company or any Subsidiary, (B) there are no outstanding options, warrants, scrip,
rights to subscribe to, calls or commitments of any character whatsoever relating to, or notes or other securities or rights convertible
into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries (collectively, “Other
Securities”), or Contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries
is or may become bound to issue additional capital stock of the Company or any of its Subsidiaries or options, warrants, scrip,
rights to subscribe to, calls or commitments of any character whatsoever relating to, or notes or securities or rights convertible
into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries, (C) there are no outstanding
debt securities, notes, credit agreements, credit facilities or other Contracts, documents or instruments evidencing Indebtedness
of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound, (D) there
are no financing statements securing obligations in any amounts filed in connection with the Company or any of its Subsidiaries,
(E) there are no Contracts or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale
of any of their securities under the Securities Act, (F) there are no outstanding securities or instruments of the Company or any
of its Subsidiaries which contain any redemption or similar provisions, and there are no Contracts, commitments, understandings
or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any
of its Subsidiaries, (G) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered
by the issuance of the Shares, and (H) there are no restricted stock, stock appreciation rights, performance units, contingent
value rights, “phantom” stock, or similar securities or rights that are derivative of, or provide economic benefits
based, directly or indirectly, on, the value or price of any shares of capital stock or other securities of or other ownership
interests in the Company or any Subsidiary.


 






    	 	15	 



     


    

 


(b)          Each
outstanding share of capital stock of, or other equity interests in, each Subsidiary of the Company is (i) duly authorized, validly
issued, fully paid and non-assessable and free of preemptive (or similar) rights, (ii) owned by the Company or another of its wholly-owned
Subsidiaries free and clear of all Encumbrances, and (iii) not subject to any outstanding obligations of the Company or any of
its Subsidiaries requiring the registration under any securities Law for sale of such share of capital stock, or other equity interests.


 


(c)          As
of the date of this Agreement, no bonds, debentures, notes or other Indebtedness of the Company having the right to vote (or convertible
into or exercisable for securities having the right to vote) on any matters on which stockholders of the Company may vote are issued
or outstanding.


 


Section 4.04         Issuance
of Shares. The issuance of the Shares is duly authorized and upon issuance in accordance with the terms of the applicable
Transaction Documents shall be validly issued, fully paid and non-assessable and free from all Encumbrances. The Company shall
have reserved from its duly authorized capital stock as of the date hereof, in addition to authorized capital stock reserved for
all Other Securities, all Shares issuable pursuant to this Agreement. Assuming the representations and warranties of the Investor
contained in Article III are true, the offer and issuance by the Company of the Shares is exempt from registration under
the Securities Act.


 


Section 4.05         No
Conflicts. The execution, delivery and performance by the Company of this Agreement and the other Transaction Documents to
which it or any of its Subsidiaries is a party and the consummation by the Company and its Subsidiaries of the transactions contemplated
hereby and thereby (including the issuance of the Shares) will not (a) result in a violation of the Certificate of Incorporation,
Bylaws or other organizational documents of the Company or any of its Subsidiaries or any capital stock of the Company or any
of its Subsidiaries, (b) conflict with, or constitute a default (or an event which with notice or lapse of time or both would
become a default) under, result in the creation of any Encumbrance upon any of the properties or assets of the Company or any
of its Subsidiaries pursuant to, or give to others any rights of termination, amendment, acceleration or cancellation of, any
Contract or other instrument or obligation to which the Company or any of its Subsidiaries is a party, or (c) result in a violation
of any Law (including the rules and regulations of the Nasdaq Capital Market (“Nasdaq”)) or Order applicable
to the Company or any of its Subsidiaries or by which any property or asset of the Company or any of its Subsidiaries is bound
or affected; except, in the case of each of clauses (b) and (c), as would not be, or would not reasonably be expected to be, material
to the Company and its Subsidiaries, taken as a whole.


 






    	 	16	 



     


    

 


Section 4.06         Consents.
Neither the Company nor any Subsidiary is required to obtain any consent, approval, authorization or order of, or make any filing
or notification with, any Governmental Entity or other self-regulatory organization or body or any other Person in order for it
to execute, deliver or perform any of its respective obligations under or contemplated by the Transaction Documents, in each case,
in accordance with the terms hereof or thereof, except (a) for applicable requirements, if any, of the Securities Act, the
Exchange Act, state “Blue Sky” laws and state takeover Laws, (b) any filings required under the rules and regulations
of Nasdaq, (c) where the failure to obtain such consents, approvals, authorizations or orders, or to make such filings or
notifications, would not be material. As of the Initial Closing, in respect of the Initial Purchase, as of the Second Closing,
in respect of the Second Purchase, as of the Third Closing, in respect of the Third Purchase, and as of the Final Closing, in
respect of the Final Purchase, as the case may be, all consents, approvals, authorizations, orders, filings and notifications
which the Company or any Subsidiary is required to obtain pursuant to the preceding sentence have been obtained or effected. Neither
the Company nor any of its Subsidiaries is aware of any facts or circumstances that might prevent the Company or any of its Subsidiaries
from obtaining or effecting any of the registration, application or filings contemplated by the Transaction Documents. Except
for the written notifications received by the Company from Nasdaq on April 26, 2018 and October 24, 2018, regarding, among other
things, the Company’s failure to meet certain minimum bid price requirements under applicable Nasdaq rules (the “Nasdaq
Notices”), the Company is not in violation of the rules or requirements of Nasdaq and, to the knowledge of the Company,
there are no facts or circumstances that would reasonably lead to delisting or suspension of the Common Stock.


 


Section 4.07         Acknowledgment
Regarding Investor’s Purchase of Shares. The Company acknowledges and agrees that Investor is not acting as a financial
advisor or fiduciary of the Company or any of its Subsidiaries (or in any similar capacity) with respect to the Transaction Documents
and the transactions contemplated hereby and thereby, and any advice given by Investor or any of its representatives or agents
in connection with the Transaction Documents and the transactions contemplated hereby and thereby is merely incidental to such
Investor’s purchase of the Shares The Company further represents to Investor that the Company’s decision to enter
into the Transaction Documents to which it is a party has been based solely on the independent evaluation by the Special Committee,
which is comprised solely of independent directors and no related person of Investor as such term is defined under Item 404 of
Regulation S-K under the Securities Act.


 






    	 	17	 



     


    

 


Section 4.08         SEC
Documents; Financial Statements. Since May 12, 2016, the Company has timely filed all reports, schedules, forms, statements
and other documents required to be filed by it with the Securities and Exchange Commission (“SEC”) pursuant
to the reporting requirements of the Exchange Act (all of the foregoing filed prior to the date hereof and all exhibits included
therein and financial statements, notes and schedules thereto and documents incorporated by reference therein being hereinafter
referred to as the “SEC Documents”). The Company has delivered to Investor or its representatives true, correct
and complete copies of each of the SEC Documents not available on the EDGAR system. As of their respective dates, the SEC Documents
complied in all material respects with the requirements of the Exchange Act and the rules and regulations of the SEC promulgated
thereunder applicable to the SEC Documents, and none of the SEC Documents, at the time they were filed with the SEC, contained
any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order
to make the statements therein, in the light of the circumstances under which they were made, not misleading. As of their respective
dates, the financial statements of the Company included in the SEC Documents (the “Financial Statements”) complied
as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC
with respect thereto as in effect as of the time of filing. The Financial Statements have been prepared in accordance with GAAP,
consistently applied, during the periods involved (except (a) as may be otherwise indicated in the Financial Statements or the
notes thereto, or (b) in the case of unaudited interim statements, to the extent they may exclude footnotes or may be condensed
or summary statements) and fairly present in all material respects the financial position of the Company as of the dates thereof
and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to
normal year-end audit adjustments which are not material, either individually or in the aggregate). Other than as set forth in
the SEC Documents, neither the Company nor any of its Subsidiaries has any liability or obligation of any nature (whether accrued,
absolute, contingent, determined, determinable or otherwise and whether due or to become due), except for liabilities and obligations
(i) reflected or reserved against on the consolidated balance sheet of the Company and its consolidated Subsidiaries as at December
31, 2017, including the notes thereto, or (ii) incurred in the ordinary course of business consistent with past practice since
December 31, 2017, which would not be material to the Company and its Subsidiaries, taken as a whole. No other information provided
by or on behalf of the Company to Investor which is not included in the SEC Documents contains any untrue statement of a material
fact or omits to state any material fact necessary in order to make the statements therein not misleading, in the light of the
circumstance under which they are or were made. The Company is not currently contemplating to amend or restate any of the Financial
Statements (including any notes or any letter of the independent accountants of the Company with respect thereto), nor is the
Company currently aware of facts or circumstances which would require the Company to amend or restate any of the Financial Statements,
in each case, in order for any of the Financials Statements to be in compliance with GAAP and the rules and regulations of the
SEC. The Company has not been informed by its independent accountants that they recommend that the Company amend or restate any
of the Financial Statements or that there is any need for the Company to amend or restate any of the Financial Statements. As
of the date of this Agreement, there are no material outstanding or unresolved comments in comment letters received from the SEC
with respect to the SEC Documents. To the knowledge of the Company, none of the SEC Documents is the subject of ongoing SEC review
and there are no inquiries or investigations by the SEC or any Governmental Entity or any internal investigations pending or threatened,
in each case regarding any accounting practices of the Company or any of its Subsidiaries.


 


Section 4.09         Absence
of Certain Changes. Since September 30, 2017, (a) the Company and its Subsidiaries have conducted their business in the ordinary
course and in a manner consistent with past practice, and (b) except as expressly set forth in the Company’s Quarterly Report
on Form 10-Q for the quarterly period ended June 30, 2018 (but excluding (1) any documents filed as exhibits, annexes and schedules
thereto or incorporated by reference therein, (2) any risk factor disclosures therein (other than any factual information contained
therein), and (3) any disclosure of risks included in any “forward-looking statements” disclaimer therein or
any other statements therein that are similarly non-specific or precise or forward-looking in nature), there has not been any
Material Adverse Effect.


 






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Section 4.10         No
Undisclosed Events, Liabilities, Developments or Circumstances. No event, liability, development or circumstance has occurred
or exists, or is reasonably expected to exist or occur with respect to the Company, any of its Subsidiaries or any of their respective
businesses, properties, liabilities, prospects, operations (including results thereof) or condition (financial or otherwise),
that (a) would be required to be disclosed by the Company under applicable securities laws on a registration statement on Form
S-1 filed with the SEC relating to an issuance and sale by the Company of its Common Stock and which has not been publicly announced
(other than the transactions contemplated by this Agreement), or (b) would have, or would reasonably be expected to have, a Material
Adverse Effect.


 


Section 4.11         Certificate
of Incorporation and Bylaws. The Company has furnished to Investor true, correct and complete copies of (a) the Company’s
Amended and Restated Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of
Incorporation”), (b) the Company’s Amended and Restated Bylaws, as amended and as in effect on the date hereof
(the “Bylaws”), (c) the certificate of incorporation and bylaws (or equivalent organizational documents) of
each Subsidiary of the Company, each as amended and as in effect on the date hereof, and (d) the terms of all Other Securities
and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documents. The Company
is not in violation of any term of, or in default under, the Certificate of Incorporation, the Bylaws or any certificate of designation,
preferences or rights of any other outstanding series of preferred stock of the Company. None of the Subsidiaries of the Company
are in violation of any term of, or in default under, its certificate of incorporation or bylaws (or equivalent organizational
documents).


 


Section 4.12         Permits;
Compliance. The Company and each of its Subsidiaries is in possession of all Company Permits, except where the failure to
possess, or the suspension or cancellation of, any of the Company Permits would not be material to the Company and its Subsidiaries,
taken as a whole. No suspension or cancellation of any of the Company Permits is pending or, to the knowledge of the Company,
threatened, except where the failure to possess, or the suspension or cancellation of, any of the Company Permits would not be
material to the Company and its Subsidiaries, taken as a whole. Neither the Company nor any of its Subsidiaries is or, since January
1, 2016, has been, in conflict with, or in default, breach or violation of, any Law or Company Permit applicable to the Company
or any of its Subsidiaries or by which any property or asset of the Company or any of its Subsidiaries is bound or affected, except
for any such conflicts, defaults, breaches or violations that have not been, and would not reasonably be expected to be, material
to the Company and its Subsidiaries, taken as a whole. Without limiting the generality of the foregoing, and except the Nasdaq
Notices, the Company is not in violation of any of the rules, regulations or requirements of Nasdaq. Since May 12, 2016, (i) the
Common Stock has been listed or designated for quotation on Nasdaq, (ii) trading in the Common Stock has not been suspended by
the SEC or Nasdaq and (iii) other than the Nasdaq Notices, the Company has received no communication, written or oral, from the
SEC or Nasdaq regarding the suspension or delisting of the Common Stock from Nasdaq.


 






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Section 4.13         Anti-Corruption;
Anti-Money Laundering; Sanctions.


 


(a)          Provided
that the Company does not make this representation with respect to Investor and its designees on the Company Board, neither the
Company, its Subsidiaries, nor any of their respective directors, officers, agents or employees, nor any other Person acting for
or on behalf of the foregoing (each, a “Company Affiliate” but, for purposes of this Section 4.13, excluding
Investor and its designees on the Company Board); (i) is itself, or is 50% or more owned by, a target of any sanctions, laws, lists,
regulations, embargoes or restrictive measures administered, enacted or enforced by the United States or other government, including
the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, the United Kingdom,
the European Union (and any of its member states) or the United Nations Security Council, or any other relevant authority or sanctions-administering
body (collectively, “Sanctions”), or (ii) is located, organized or resident in a country or territory that is
the target of any such Sanctions (including without limitation, Cuba, Iran, North Korea, North Sudan or Syria).


 


(b)          To
the knowledge of the Company, no Action by or before any Governmental Entity or any arbitrator involving the Company or any Company
Affiliate with respect to any Sanctions is pending or threatened.


 


(c)          The
operations of the Company and its Subsidiaries and, to the knowledge of the Company, the other Company Affiliates are and have
been conducted at all times in compliance with applicable anti-money laundering and anti-terrorism financing laws of all jurisdictions
in which they operate, the rules and regulations promulgated thereunder, and any related or similar rules, regulations or guidelines,
issued, administered or enforced by any Governmental Entity thereof or therein (collectively, the “Anti-Money Laundering
and Anti-Terrorism Financing Laws”).


 


(d)          To
the knowledge of the Company, no Action by or before any Governmental Entity or any arbitrator involving the Company or any Company
Affiliate with respect to Anti-Money Laundering and Anti-Terrorism Financing Laws is pending or threatened.


 


(e)          Neither
the Company, any of its Subsidiaries nor, to the knowledge of the Company, any other Company Affiliate has engaged in conduct that
would violate any anti-corruption laws, including the U.S. Foreign Corrupt Practices Act, the UK Bribery Act, the OECD Convention
on Combating Bribery of Foreign Public Officials in International Business Transactions and related implementing legislation, and
any other similar laws against bribery or corruption (the “Anti-Corruption Laws”).


 


(f)          Neither
the Company, any of its Subsidiaries nor, to the knowledge of the Company, any other Company Affiliate has offered, promised, given,
or authorized the offer, promise, or giving, or accepted or requested, any compensation, payment or gift or anything of value,
directly or indirectly, to or from any Person (whether government-affiliated or not) for the purpose of influencing or inducing
any act or decision or inaction in order to obtain, retain or direct business or to secure an improper advantage.


 






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(g)          To
the knowledge of the Company, no Action by or before any Governmental Entity or any arbitrator involving the Company or any Company
Affiliate with respect to Anti-Corruption Laws is pending or threatened.


 


Section 4.14         Sarbanes-Oxley
Act. The Company and each Subsidiary has been at all times and currently is in compliance in all material respects with all
applicable requirements of the Sarbanes-Oxley Act of 2002 that are effective as of the date hereof, and all applicable rules and
regulations promulgated by the SEC thereunder that are effective as of the date hereof.


 


Section 4.15         Transactions
With Affiliates. As of the date of this Agreement, and other than this Agreement, there are no transactions, Contracts, arrangements,
commitments or understandings between (a) the Company or any of its Subsidiaries and (b) any of the Company’s
Affiliates that would be required to be disclosed by the Company under Item 404 of Regulation S-K under the Securities Act that
are not disclosed in the SEC Documents.


 


Section 4.16         Absence
of Litigation. Other than the Nasdaq Notices, there is no Action pending or, to the knowledge of the Company, threatened against
the Company or any of its Subsidiaries, or any property or asset of the Company or any of its Subsidiaries (or, to the knowledge
of the Company, any director or officer of the Company in such capacity as director or officer), by or before Nasdaq, any Governmental
Entity or any self-regulatory organization or body that, if adversely determined against the Company or its applicable Subsidiary,
would be, or would reasonably be expected to be, material to the Company and its Subsidiaries, taken as a whole. Neither the Company
nor any of its Subsidiaries nor any property or asset of the Company or any of its Subsidiaries is subject to any continuing order
of, consent decree, settlement agreement or other similar written agreement with, or, to the knowledge of the Company, any continuing
investigation by, any Governmental Entity or any Order that is, or would reasonably be expected to be, material to the Company
and its Subsidiaries, taken as a whole.


 


Section 4.17         Insurance.
Each of the Company and its Subsidiaries maintains insurance policies with reputable insurance carriers against all risks of a
character and in such amounts as are usually insured against by similarly situated companies in the same or similar businesses.
Each such insurance policy is legal, valid, binding and enforceable in accordance with its terms and, except for policies that
have expired under their terms in the ordinary course, is in full force and effect. Neither the Company nor any of its Subsidiaries
is in breach or default (including any such breach or default with respect to the payment of premiums or the giving of notice)
under any such policy, and, to the knowledge of the Company, no event has occurred which, with notice or the lapse of time or
both, would constitute such a breach or default, or permit termination or modification, under such policy, and no notice of cancellation
or termination has been received with respect to any such party.


 






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Section 4.18         Employee
Benefit Matters.


 


(a)          Plans
and Material Documents. With respect to each Company Plan, the Company has made available to Investor a true and complete copy
of the plan document as amended to the date hereof (or, in the case of any Company Plan that is unwritten, a description thereof),
together with, if applicable, (i) the most recent summary plan description for which such summary plan description is required
(including all amendments thereto through the date hereof), (ii) the most recent annual reports on Form 5500 required to be filed
with the United States Internal Revenue Service (“IRS”) with respect to each Company Plan (if any such report
was required), (iii) each trust agreement and insurance or group annuity contract relating to any Company Plan, and (iv) copies
of non-discrimination testing results for the three most recent plan years.


 


(b)          Plan
Compliance. Each Company Plan has been operated in all material respects in accordance with its terms and the requirements
of all applicable Laws. Each of the Company and its ERISA Affiliates, as applicable, has performed the obligations required to
be performed by it under, is not in any material respect in default under or in violation of, and, to the Company’s knowledge,
there is no material default or violation by any party to, any Company Plan. No Action is pending or, to the knowledge of the Company,
threatened with respect to any Company Plan (other than claims for benefits in the ordinary course of business) and, to the knowledge
of the Company, no fact or event exists that could give rise to any such action.


 


(c)          Qualification
of Certain Plans. Each Company Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable
determination letter from the IRS with respect to the most recent applicable determination letter filing period or has timely applied
to the IRS for such a letter, and no event has occurred since the date of the most recent determination letter or application therefor
relating to any such Company Plan that would reasonably be expected to adversely affect the qualification of such Company Plan.


 


(d)          No
Title IV Plans. None of the Company Plans is subject to Title IV of ERISA or the minimum funding requirements of Section 412
of the Code or Section 302 of ERISA.


 


(e)          Effect
of Transaction. Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated
hereby shall: (i) result in the acceleration of the time of payment or vesting or creation of any rights of any current or
former employee, manager, director or consultant to compensation or benefits under any Company Plan or otherwise, (ii) result
in any payment becoming due, or increase the amount of any compensation due, to any current or former employee, manager, director
or consultant of the Company, or (iii) increase any benefits otherwise payable under any Company Plan.


 


(f)          Section
280G Payments. No Company Plan provides for any payment by the Company or any Subsidiary that would result in the payment of
any compensation or other payments that would not be deductible under the terms of Section 280G of the Code after giving effect
to the transactions contemplated hereby.


 


(g)          Section
409A. Each Company Plan that constitutes a nonqualified deferred compensation plan subject to Section 409A of the Code
has been administered in all material respects, in both form and operation, with the provisions of Section 409A of the Code
and the treasury regulations and other generally applicable guidance published by the IRS thereunder. None of the Company or any
of its Subsidiaries has any liability or obligation to pay or reimburse any Taxes, related penalties, or interest that may be imposed
by Section 409A of the Code.


 






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Section 4.19         Labor
and Employment Matters.


 


(a)          Collective
Bargaining Agreements. There are no collective bargaining agreements that cover any of the Service Providers of the Company
and its Subsidiaries to which the Company or any of its Subsidiaries is a party, and to the knowledge of the Company, there are
no strikes, disputes, requests for representation, slowdowns or stoppages, organizational campaigns, petitions or other unionization
activities seeking recognition of a collective bargaining unit relating to any such Service Providers pending, or, to the Company’s
knowledge, threatened against or affecting the Company or any of its Subsidiaries. There are no unfair labor practice charges,
material grievances or material complaints pending against the Company or any of its Subsidiaries or, to the knowledge of the Company,
threatened against or affecting the Company or any of its Subsidiaries.


 


(b)          Compliance
with Laws. The Company and its Subsidiaries are currently in compliance in all material respects with all Laws related to the
employment of labor, including those related to wages, hours, collective bargaining, terms and conditions of employment, discrimination
in employment and collective bargaining, equal opportunity, harassment, immigration, disability, workers’ compensation, unemployment
compensation, occupational health and safety and the collection and payment of withholding. The classification of each of their
employees as exempt or nonexempt has been made in all material respects in accordance with applicable Law. No liability for termination
notice or severance has been incurred with respect to any service providers of the Company or any of its Subsidiaries under the
Worker Adjustment and Retraining Notification Act as a result of an act or event occurring prior to the Second Closing, the Third
Closing, or the Final Closing, as the case may be.


 


Section 4.20         Real
Property; Title. The Company and its Subsidiaries do not own any real property. The SEC Documents include as exhibits thereto
all Leases relating to the Leased Real Property. Except as has not been, and would not reasonably be expected to be, material
to the Company and its Subsidiaries, taken as a whole, the Company or one of its Subsidiaries, as the case may be, has a valid
leasehold interest in the Leased Real Property, free and clear of all Encumbrances, except for Permitted Encumbrances. The Company
and its Subsidiaries have good and marketable title to all personal property owned by them which is material to the business of
the Company and its Subsidiaries, in each case, free and clear of all Encumbrances, except such as do not materially affect the
value of such property and do not interfere with the use made and proposed to be made of such property by the Company and any
of its Subsidiaries.


 


Section 4.21         Intellectual
Property. Each registration and application for registration with a Governmental Entity or Internet domain name registrar
of Owned Intellectual Property (collectively, the “Registered Intellectual Property”) is (i) valid, subsisting
and enforceable, (ii) currently in compliance with any and all formal legal requirements necessary to maintain the validity and
enforceability thereof and record and perfect the Company’s or any of its Subsidiaries’ interest therein, and (iii)
not subject to any Action or Contract adversely affecting the Company’s or any of its Subsidiaries’ use thereof or
rights thereto, or that could impair the validity or enforceability thereof.


 






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(a)          The
Company or one of its Subsidiaries exclusively owns all right, title and interest in and to the Owned Intellectual Property, free
and clear of all Encumbrances (other than Permitted Encumbrances) and exclusive licenses, and the Company and its Subsidiaries
have a valid license to use all Licensed Intellectual Property in connection with the operation of the businesses of the Company
and its Subsidiaries, subject only to the terms of the Company IP Agreements. The Company Intellectual Property constitutes all
Intellectual Property necessary to conduct the businesses of the Company and its Subsidiaries as currently conducted and as proposed
to be conducted. There is no pending or threatened claim by any third party contesting or challenging (i) the validity or enforceability
of any Owned Intellectual Property, or (ii) the ownership or right to use by the Company or any of its Subsidiaries of any Company
Intellectual Property.


 


(b)          The
Company and its Subsidiaries have valid and enforceable licenses to use all Intellectual Property that is the subject of the Company
IP Agreements and any other Intellectual Property used in the businesses of the Company and its Subsidiaries as currently conducted
and as proposed to be conducted. Each Company IP Agreement is in full force and effect and is enforceable against the Company and,
to the knowledge of the Company, the other parties thereto. There does not exist under any Company IP Agreement any default or
condition or event that, after notice or lapse of time or both, would constitute a default on the part of the Company or any of
its Subsidiaries or, to the knowledge of the Company, on the part of any other party to such Company IP Agreement.


 


(c)          The
Owned Intellectual Property and the operation of the businesses of the Company and its Subsidiaries as currently conducted, as
has been conducted during the past six (6) years and as proposed to be conducted do not infringe, violate or misappropriate any
Intellectual Property of any Person or constitute contributory infringement, inducement of infringement or unfair competition or
trade practices under the Law of any jurisdiction. There is no Action pending or, to the knowledge of the Company, threatened against
the Company or any of its Subsidiaries by any Person: (i) alleging that the Company, any of its Subsidiaries or the Owned Intellectual
Property infringes, misappropriates or otherwise violates the Intellectual Property rights of such Person, or (ii) challenging
the validity, enforceability, ownership, or right to use, sell, or license any Owned Intellectual Property. No Person is engaging
in any activity, or has engaged in any activity during the past six (6) years, that infringes, misappropriates or otherwise violates
or conflicts with any Owned Intellectual Property, and there is no Action pending or threatened by the Company or any of its Subsidiaries
against any Person alleging such Person is engaged in any such activity.


 


(d)          The
Company and each of its Subsidiaries have taken all reasonable measures to maintain the confidentiality of all confidential information
used or held for use in the operation of their businesses, including all confidential Company Intellectual Property. No confidential
information, trade secrets or other confidential Company Intellectual Property have been disclosed by the Company or any of its
Subsidiaries to, or discovered by, any Person except pursuant to appropriate non-disclosure or license agreements that (i) obligate
such Person to keep such confidential information, trade secrets or other confidential Company Intellectual Property confidential
both during and after the term of such agreement, and (ii) are valid, subsisting, in full force and effect and binding on the parties
thereto and with respect to which no party thereto is in default thereunder and no condition exists that with notice or the lapse
of time or both could constitute a default thereunder.


 






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(e)          The
Company and its Subsidiaries have taken all reasonable steps to protect and maintain the Owned Intellectual Property. Without limiting
the foregoing, the Company and its Subsidiaries have and enforce policies requiring each employee, consultant and independent contractor
who creates or develops Intellectual Property for or on behalf of the Company and/or any of its Subsidiaries to execute a proprietary
rights assignment and confidentiality agreement substantially in the form provided to the Investor, and all current and former
employees, consultants and independent contractors of the Company and its Subsidiaries who have created or developed Intellectual
Property for or on behalf of the Company have executed such an agreement. No employee, consultant or independent contractor of
the Company or its Subsidiaries is in default or breach of any term of such agreement.


 


(f)          No
funding, facilities or resources of any Governmental Entity, intergovernmental organization, university, college, other educational
institution or research center was used in the development of the Owned Intellectual Property in a manner that has resulted in
any such Person having any claim of interest, ownership or license, or right to obtain ownership or license, to any such Owned
Intellectual Property.


 


(g)          The
Company IT Assets are adequate for the operation of the businesses of the Company and its Subsidiaries and operate and perform
in accordance with their documentation and functional specifications. The Company IT Assets have not malfunctioned or failed within
the past six (6) years and do not contain any disabling codes or instructions, “time bombs,” “Trojan horses,”
“back doors,” “trap doors,” “worms,” viruses, bugs, faults or other software routines or hardware
components that (i) significantly disrupt or adversely affect the functionality of any Company IT Assets or other software or systems,
or (ii) enable or assist any Person to access without authorization any Company IT Assets. The Company and each of its Subsidiaries
have implemented reasonable backup, security and disaster recovery measures and technology consistent with industry practices and
no Person has gained unauthorized access to any Company IT Assets.


 


(h)          The
Company and its Subsidiaries are in compliance with all applicable Laws and internal policies pertaining to privacy and personally
identifiable information, sensitive personal information and any special categories of personal information regulated thereunder
or covered thereby (collectively, “Personal Information”). There is not and has not been any written complaint
to, or any audit, proceeding, investigation (including any formal or, to the knowledge of the Company, informal investigation)
or claim against, the Company or any of its Subsidiaries by any private party, data protection authority, any state attorney general
or similar state official or any other Governmental Entity, foreign or domestic, with respect to the collection, use, retention,
disclosure, transfer, storage, security, disposal or other processing of Personal Information.


 






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Section 4.22         Environmental
Laws. Except as would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, (a) none
of the Company nor any of its Subsidiaries is in violation of or, since January 1, 2015, has violated, any Environmental Law,
(b) none of the properties currently or formerly owned, leased or operated by the Company or any current or former Subsidiary
of the Company (including soils and surface and ground waters) are contaminated with any Hazardous Substance, (c) none of
the Company or any of its current or former Subsidiaries is actually, potentially or allegedly liable for any off-site contamination
by Hazardous Substances, (d) none of the Company or any of its current or former Subsidiaries is actually, potentially or
allegedly liable under any Environmental Law (including pending or threatened liens, or with respect to exposure to Hazardous
Substances), (e) each of the Company and its Subsidiaries has all Environmental Permits, and (f) each of the Company
and its Subsidiaries is and, since January 1, 2015, has been, in compliance with its Environmental Permits.


 


Section 4.23         Material
Contracts. Each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the
Securities Act) with respect to the Company or any of its Subsidiaries that has been, or was required to be, filed with the SEC
with the Company’s Annual Report on Form 10-K for the year ended September 30, 2017 or any Company SEC Documents filed
after the date of filing of such Form 10-K until the date hereof (each a “Material Contract”) is a legal, valid
and binding obligation of the Company or its Subsidiaries party thereto and, to the Company’s knowledge, the other parties
thereto, enforceable against the Company or such Subsidiaries and, to the Company’s knowledge, the other parties thereto
in accordance with its terms. Neither the Company nor any of its Subsidiaries nor, to the Company’s knowledge, any other
party thereto is in breach or violation of, or default under, any Material Contract and no event has occurred or not occurred
through the Company’s or any of its Subsidiaries’ action or inaction or, to the Company’s knowledge, the action
or inaction of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or default
under, any Material Contract, except as would not be, or would not reasonably be expected to be, material to the Company and its
Subsidiaries, taken as a whole. The Company and its Subsidiaries have not received any claim or notice of default, termination
or cancellation under any Material Contract. The Company has furnished or made available to Investor correct and complete copies
of all Material Contracts, including any amendments, waivers or changes thereto.


 


Section 4.24         Subsidiary
Rights. The Company or one of its Subsidiaries, as applicable, has the unrestricted right to vote, and (subject to limitations
imposed by applicable law) to receive dividends and distributions on, all capital securities of its Subsidiaries as owned by the
Company or such Subsidiary.


 


Section 4.25         Tax
Status. Each of the Company and its Subsidiaries (a) has filed all foreign, federal and state income and all other material
tax returns, reports and declarations required to be filed by any jurisdiction to which it is subject, except for any tax returns
for which valid extensions have been filed and are still in effect, (b) has paid all taxes and other governmental assessments
and charges that are material in amount, due and owing and shown or determined to be due on such returns, reports and declarations,
except those being contested in good faith and (c) has set aside on its books provision reasonably adequate for the payment of
all taxes for periods subsequent to the periods to which such returns, reports or declarations apply, other than as would be reasonably
likely to be material to the Company and its Subsidiaries, taken as a whole. There are no unpaid taxes in any material amount
claimed in writing to be due by the taxing authority of any jurisdiction, and the Company and its Subsidiaries know of no basis
for any such claim. The Company is not a foreign corporation so as to qualify potentially as a passive foreign investment company,
as defined in Section 1297 of the Code.


 






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Section 4.26         Internal
Accounting and Disclosure Controls. Each of the Company and its Subsidiaries maintains internal control over financial reporting
(as such term is defined in Rule 13a-15(f) under the Exchange Act) that is effective to provide reasonable assurance regarding
the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally
accepted accounting principles, including that (a) transactions are executed in accordance with management’s general or
specific authorizations, (b) transactions are recorded as necessary to permit preparation of financial statements in conformity
with generally accepted accounting principles and to maintain asset and liability accountability, (c) access to assets or incurrence
of liabilities is permitted only in accordance with management’s general or specific authorization and (d) the recorded
accountability for assets and liabilities is compared with the existing assets and liabilities at reasonable intervals and appropriate
action is taken with respect to any difference. The Company maintains disclosure controls and procedures (as such term is defined
in Rule 13a-15(e) under the Exchange Act) that are effective in ensuring that information required to be disclosed by the Company
in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time
periods specified in the rules and forms of the SEC, including controls and procedures designed to ensure that information required
to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated
to the Company’s management, including its principal executive officer or officers and its principal financial officer or
officers, as appropriate, to allow timely decisions regarding required disclosure. Since May 12, 2016, neither the Company nor
any of its Subsidiaries has received any notice or correspondence from any accountant or other Person relating to any potential
material weakness or significant deficiency in any part of the internal controls over financial reporting of the Company or any
of its Subsidiaries.


 


Section 4.27         Off
Balance Sheet Arrangements. There is no transaction, arrangement, or other relationship between the Company or any of its
Subsidiaries and an unconsolidated or other off balance sheet entity that is required to be disclosed by the Company in the SEC
Documents and is not so disclosed or that otherwise would be reasonably likely to be material to the Company and its Subsidiaries,
taken as a whole.


 


Section 4.28         Special
Committee Approvals. The Special Committee, by resolutions duly adopted at a meeting duly called and held by such committee,
unanimously: (a) determined that this Agreement, the other Transaction Documents and the transactions contemplated hereby and
thereby are fair to, and in the best interests of, the Company and its stockholders and (b) adopted this Agreement and the other
Transaction Documents and approved the transactions contemplated hereby and thereby.


 


Section 4.29         Investment
Company Status. The Company is not, and upon consummation of the sale of the Shares will not be, an “investment company,”
an affiliate of an “investment company,” a company controlled by an “investment company” or an “affiliated
person” of, or “promoter” or “principal underwriter” for, an “investment company” as
such terms are defined in the Investment Company Act of 1940, as amended.


 






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Section 4.30         Manipulation
of Price. Neither the Company nor any of its Subsidiaries has, and, to the knowledge of the Company, no Person acting on their
behalf has, directly or indirectly, (a) taken any action designed to cause or to result in the stabilization or manipulation of
the price of any security of the Company or any of its Subsidiaries to facilitate the sale or resale of any of the Shares, (b)
sold, bid for, purchased, or paid any compensation for soliciting purchases of, any of the Shares, or (c) paid or agreed to pay
to any Person any compensation for soliciting another to purchase any other securities of the Company or any of its Subsidiaries.


 


Section 4.31         U.S.
Real Property Holding Corporation. Neither the Company nor any of its Subsidiaries is, or has ever been, and so long as any
of the Shares are held by Investor, shall become, a U.S. real property holding corporation within the meaning of Section 897 of
the Code, and the Company and each Subsidiary shall so certify upon Investor’s request.


 


Section 4.32         Transfer
Taxes. On each of date hereof, the Second Closing Date, the Third Closing Date, and the Final Closing Date, as applicable,
all stock transfer or other taxes (other than income or similar taxes) that are required to be paid in connection with the issuance,
sale and transfer of the Shares to be sold to Investor hereunder at each of the Initial Closing, the Second Closing, the Third
Closing, and the Final Closing, as applicable, will be, or will have been, fully paid or provided for by the Company, and all
laws imposing such taxes will be or will have been complied with.


 


Section 4.33         Shell
Company Status. The Company is not, and has never been, an issuer identified in, or subject to, Rule 144(i) promulgated under
the Securities Act.


 


Section 4.34         Disclosure.
There exists no material, non-public information concerning the Company or any of its Subsidiaries, other than the existence of
the transactions contemplated by this Agreement and the other Transaction Documents, as of the date of this Agreement that has
been provided to Investor or its designees on the Company Board.


 


Article
V



COVENANTS


 


Section 5.01         Conduct
of Business. The Company covenants and agrees that, between the date of this Agreement and the Final Closing, except with
the prior written consent of Investor, the businesses of the Company and its Subsidiaries shall be conducted only in, and the
Company and its Subsidiaries shall not take any action except in, the ordinary course of business and in a manner consistent with
past practice and the Company and each of its Subsidiaries shall use their reasonable best efforts to (a) preserve substantially
intact their existing assets, (b) preserve substantially intact their business organization, (c) keep available the
services of their current officers, employees and consultants, (d) maintain and preserve intact their current relationships
with their significant customers, suppliers, distributors, creditors and other Persons with which the Company or any of its Subsidiaries
has a significant business relationship, and (e) comply in all material respects with applicable Law.


 






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Section 5.02         Blue
Sky. If applicable, the Company, on or before the Initial Closing, the Second Closing, Third Closing, or Final Closing, as
the case may be, shall take such action as the Company shall reasonably determine is necessary in order to obtain an exemption
for, or to qualify the Shares for sale to Investor at the Initial Closing, the Second Closing, the Third Closing, or the Final
Closing, as the case may be, pursuant to this Agreement under applicable securities or state “Blue Sky” laws (or to
obtain an exemption from such qualification), and shall provide evidence of any such action so taken to Investor on or prior to
the date hereof or the Second Closing Date, the Third Closing Date, or the Final Closing Date, as applicable. Without limiting
any other obligation of the Company under this Agreement, the Company shall timely make all filings and reports relating to the
offer and sale of the Shares required under all applicable securities laws (including all applicable federal securities laws and
all applicable state “Blue Sky” laws), and the Company shall comply with all applicable federal, state and local Laws
relating to the offering and sale of the Shares to Investor.


 


Section 5.03         Fees.
Regardless of whether the transactions contemplated by this Agreement and the other Transaction Documents are consummated, the
Company shall pay and reimburse Investor for, and Investor shall be entitled to, all reasonable and documented out-of-pocket fees
and expenses incurred by Investor and its Affiliates in connection with the negotiation, execution, diligence, evaluation and
structuring of the transactions contemplated by this Agreement and the other Transaction Documents (or relating thereto), including
attorneys’, consultants’ and advisors’ fees and any costs of recovering any such fees or expenses from the Company
in a dispute or otherwise (any such fees and expenses, collectively, the “Investor Expenses”). The Company
shall be responsible for (a) the payment of any transfer agent fees and fees of The Depository Trust & Clearing Corporation
relating to or arising out of the transactions contemplated by the Transaction Documents, and (b) any claim by any broker, finder
or advisor purporting to be due a fee in connection herewith, and, in each case, the Company shall indemnify Investor and its
Affiliates for, and hold Investor and its Affiliates harmless against, any liability, loss or expense (including reasonable attorneys’,
consultants’ and advisors’ fees and out-of-pocket expenses and any costs of recovering any such loss, liability or
expense from the Company in a dispute or otherwise) arising in connection with any such payment or claim.


 


Section 5.04         Pledge
of Shares. Notwithstanding anything to the contrary contained in this Agreement, and without limiting any rights of Investor,
the Company acknowledges and agrees that the Shares may be pledged by Investor in connection with a bona fide margin agreement
or other loan or financing arrangement that is secured by the Shares. The pledge of Shares shall not be deemed to be a transfer,
sale or assignment of the Shares hereunder, and if Investor effects a pledge of Shares, Investor shall not be required to provide
the Company with any notice thereof or otherwise make any delivery to the Company pursuant to this Agreement or any other Transaction
Document. The Company hereby agrees to execute and deliver such documentation as a pledgee of the Shares may reasonably request
in connection with a pledge of the Shares to such pledgee by Investor.


 






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Section 5.05         Disclosure
of Transactions and Other Material Information. The Company shall (a) on or before 5:30 p.m., New York time, on the first
Business Day after the date of this Agreement, issue a press release describing all the material terms of the transactions contemplated
by the Transaction Documents (the “Initial Announcement”) and (b) file a Current Report on Form 8-K in the
form required by the Exchange Act and attaching all the material Transaction Documents, including this Agreement (the “8-K
Filing”), with the SEC within the time required by the Exchange Act. Investor shall have a reasonable opportunity to
review and comment on the 8-K Filing prior to the filing thereof and the Company shall include all comments reasonably requested
by Investor. Investor and the Company shall agree to the Initial Announcement to be issued following execution of this Agreement.
Notwithstanding the foregoing, this Section 5.05 shall not apply to any press release or other public statement made by
the Company or Investor that is consistent with the Initial Announcement and does not contain any information relating to the
transactions contemplated by the Transaction Documents that has not been previously announced or made public in accordance with
the terms of this Agreement.


 


Section 5.06         Listing
of Shares; Nasdaq Notices. The Company shall use its best efforts to (a) cause the Shares to be approved for listing on Nasdaq,
subject to official notice of issuance, and (b) remedy the matters identified in the Nasdaq Notices, including by engaging in
discussions and cooperating with Nasdaq to remedy such matters.


 


Article
VI



CONDITIONS TO THE OBLIGATIONS OF THE COMPANY


 


Section 6.01         Conditions
to the Obligations of the Company at the Initial Closing. The obligation of the Company hereunder to consummate the transactions
contemplated by this Agreement to occur at the Initial Closing is subject to the satisfaction or written waiver (where permissible
under applicable Law), at or prior to the Initial Closing, of each of the following conditions:


 


(a)          The
representations and warranties of Investor set forth in Article III shall be true and correct in all respects as of the
date hereof and as of the Initial Closing Date as though made on and as of such date (except to the extent that such representations
and warranties speak only as of the date hereof or as of another date, in which case, only as of such date), except where the failure
of such representations and warranties of Investor to be so true and correct does not have, and would not reasonably be expected
to have, individually or in the aggregate, a material adverse effect on the ability of Investor to perform its obligations hereunder.


 


(b)          Investor
shall have performed or complied in all material respects with each of its covenants and agreements required by this Agreement
to be performed or complied with by it on or prior to the Initial Closing.


 


(c)          The
Company shall have received a certificate signed on behalf of Investor by an executive officer certifying to the effect that the
conditions set forth in Sections 6.01(a) and (b) have been satisfied.


 






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Section 6.02         Conditions
to the Obligations of the Company at the Subsequent Closings. The obligation of the Company hereunder to consummate the transactions
contemplated by this Agreement to occur at the Second Closing, Third Closing, or Final Closing, as the case may be, is subject
to the satisfaction or written waiver (where permissible under applicable Law), at or prior to the Second Closing, the Third Closing,
or the Final Closing, as the case may be, of each of the following conditions:


 


(a)          The
representations and warranties of Investor set forth in Article III shall be true and correct in all respects as of the
date hereof and as of the Second Closing Date, Third Closing Date, or the Final Closing Date, as the case may be, as though made
on and as of such date (except to the extent that such representations and warranties speak only as of the date hereof or as of
another date, in which case, only as of such date), except where the failure of such representations and warranties of Investor
to be so true and correct does not have, and would not reasonably be expected to have, individually or in the aggregate, a material
adverse effect on the ability of Investor to perform its obligations hereunder.


 


(b)          Investor
shall have performed or complied in all material respects with each of its covenants and agreements required by this Agreement
to be performed or complied with by it on or prior to the Second Closing Date, the Third Closing Date, or the Final Closing Date,
as the case may be.


 


(c)          The
Company shall have received a certificate signed on behalf of Investor by an executive officer certifying to the effect that the
conditions set forth in Sections 6.02(a) and (b) have been satisfied.


 


Article
VII



CONDITIONS TO THE OBLIGATIONS OF INVESTOR


 


Section 7.01         Conditions
to the Obligations of Investor at the Initial Closing. The obligation of Investor hereunder to consummate the transactions
contemplated by this Agreement to occur at the Initial Closing is subject to the satisfaction or written waiver (where permissible
under applicable Law), at or prior to the Initial Closing, of each of the following conditions:


 


(a)          The
representations and warranties of the Company set forth in Article IV shall be true and correct in all respects as of the
date hereof and as of the Initial Closing Date as though made on and as of such date (except to the extent that such representations
and warranties speak only as of the date hereof or as of another date, in which case, only as of such date).


 


(b)          The
Company shall have performed or complied in all material respects with each of its covenants and agreements required by this Agreement
to be performed or complied with by it on or prior to the Initial Closing.


 


(c)          The
Company and the holders of all of the Company’s outstanding senior secured promissory notes issued pursuant to the Note and
Warrant Purchase Agreement (the “Senior Notes”) shall have entered into the Second NWPA Amendment, and such
Second NWPA Amendment shall continue to be in full force and effect.


 






    	 	31	 



     


    

 


(d)          Investor
shall have received a certificate signed on behalf of the Company by an executive officer certifying to the effect that the conditions
set forth in Sections 7.01(a), (b), and (c) have been satisfied.


 


Section 7.02         Conditions
to the Obligations of Investor at the Subsequent Closings. The obligation of Investor hereunder to consummate the transactions
contemplated by this Agreement to occur at the Second Closing, Third Closing or Final Closing, as the case may be, is subject to
the satisfaction or written waiver (where permissible under applicable Law), at or prior to the Second Closing, Third Closing,
or Final Closing, as the case may be, of each of the following conditions:


 


(a)          The
representations and warranties of the Company set forth in Article IV shall be true and correct in all respects as of the
date hereof and as of the Second Closing Date, Third Closing Date, or the Final Closing Date, as the case may be, as though made
on and as of such date (except to the extent that such representations and warranties speak only as of the date hereof or as of
another date, in which case, only as of such date).


 


(b)          The
Company shall have performed or complied in all material respects with each of its covenants and agreements required by this Agreement
to be performed or complied with by it on or prior to the Second Closing Date, Third Closing Date, or the Final Closing Date, as
the case may be.


 


(c)          The
Second NWPA Amendment shall continue to be in full force and effect.


 


(d)          The
Company shall have achieved the Funding Milestones required to be achieved by the Second Closing, Third Closing or Final Closing,
as the case may be.


 


(e)          Investor
shall have received a certificate signed on behalf of the Company by an executive officer certifying to the effect that the conditions
set forth in Sections 7.02(a), (b), (c), and (d) have been satisfied.


 


Article
VIII



TERMINATION


 


Section 8.01         Termination.
This Agreement may be terminated and the transactions contemplated by this Agreement and the other Transaction Documents may be
abandoned at any time prior to the Second Closing, Third Closing or Final Closing, as the case may be:


 


(a)          by
the mutual written consent of the Company and Investor;


 






    	 	32	 



     


    

 


(b)          by
Investor, if the Company, shall have breached any of its representations or warranties or failed to perform any of its covenants
or agreements set forth in this Agreement, which breach or failure to perform (A) would give rise to the failure of a condition
set forth in Section 7.02(a) or Section 7.02(b) and (B) is incapable of being cured, or if capable of being cured,
shall not have been cured within thirty (30) calendar days following receipt by the Company of written notice of such breach or
failure to perform from Investor stating Investor’s intention to terminate this Agreement pursuant to this Section 8.01(b)
and the basis for such termination; provided that Investor shall not have the right to terminate this Agreement pursuant
to this Section 8.01(b) if Investor is then in material breach of any of its representations, warranties, covenants or agreements
hereunder; or


 


(c)          by
the Company, if Investor shall have breached any of its representations or warranties or failed to perform any of its covenants
or agreements set forth in this Agreement, which breach or failure to perform (A) would give rise to the failure of a condition
set forth in Section 6.02(a) or Section 6.02(b) and (B) is incapable of being cured, or if capable of being cured,
shall not have been cured within thirty (30) calendar days following receipt by Investor of written notice of such breach or failure
to perform from the Company stating the Company’s intention to terminate this Agreement pursuant to this Section 8.01(c)
and the basis for such termination; provided that the Company shall not have the right to terminate this Agreement pursuant
to this Section 8.01(c) if the Company is then in material breach of any of its representations, warranties, covenants or
agreements hereunder.


 


Section 8.02         Effect
of Termination; Certain Fees and Expenses.


 


(a)          In
the event of the termination of this Agreement as provided in Section 8.01, written notice thereof shall be given to the
other party, specifying the provision hereof pursuant to which such termination is made, and this Agreement shall forthwith become
null and void (other than this Section 8.02 and Article IX, which shall remain in full force and effect and survive
termination of this Agreement), and there shall be no liability or obligation on the part of Investor or the Company or their respective
directors, officers and Affiliates in connection with this Agreement; provided that nothing herein shall relieve any party
from liability for any losses or damages incurred or suffered by the other party as a result of a breach of this Agreement prior
to such termination or from fraud.


 






    	 	33	 



     


    

 


Article
IX



MISCELLANEOUS


 


Section 9.01         Governing
Law; Jurisdiction; Waiver of Jury Trial. This Agreement shall be governed by, and construed in accordance with, the laws of
the State of New York, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of
New York or any other jurisdictions) that would cause the application of the laws of any jurisdiction other than the State of
New York. The parties hereto hereby irrevocably and unconditionally consent to submit to the exclusive jurisdiction of the courts
of the State of New York and the United States of America, in each case located in the County of New York, for any Action seeking
to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated
hereby (whether brought by any party or any of its Affiliates or against any party or any of its Affiliates). Consistent with
the preceding sentence, each of the parties hereto hereby (a) submits to the exclusive jurisdiction of such courts for the
purpose of any Action arising out of or relating to this Agreement brought by either party hereto, (b) agrees that service
of process will be validly effected by sending notice in accordance with Section 9.06, (c) irrevocably waive, and
agree not to assert by way of motion, defense, or otherwise, in any such Action, any claim that it is not subject personally to
the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the Action
is brought in an inconvenient forum, that the venue of the Action is improper, or that this Agreement or the transactions contemplated
by this Agreement may not be enforced in or by any of the above named courts, and (d) agrees not to move to transfer any such
Action to a court other than any of the above-named courts. EACH OF THE PARTIES HERETO HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER
OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH OF THE PARTIES HERETO HEREBY (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION 9.01.


 


Section 9.02         Counterparts.
This Agreement may be executed and delivered (including by facsimile transmission or other means of electronic transmission, such
as by electronic mail in “pdf” form) in counterparts, and by the different parties hereto in separate counterparts,
each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same
agreement.


 






    	 	34	 



     


    

 


Section 9.03         Interpretation;
Headings. When a reference is made in this Agreement to an Exhibit, a Schedule or a Section, such reference shall be to an
Exhibit, a Schedule or a Section of this Agreement unless otherwise indicated. The table of contents, index of defined terms and
headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation
of this Agreement. Whenever the words “include”, “includes” or “including” are used in this
Agreement, they shall be deemed to be followed by the words “without limitation.” The words “hereof”,
“hereto”, “hereby”, “herein” and “hereunder” and words of similar import when
used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The term
“or” is not exclusive. The word “extent” in the phrase “to the extent” shall mean the degree
to which a subject or other thing extends, and such phrase shall not mean simply “if”. The definitions contained in
this Agreement are applicable to the singular as well as the plural forms of such terms. Any agreement, instrument or Law defined
or referred to herein means such agreement, instrument or Law as from time to time amended, modified or supplemented, unless otherwise
specifically indicated. References to a Person are also to its successors and permitted assigns. When calculating the period of
time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that
is the reference date in calculating such period shall be excluded, and if the last day of such period is not a Business Day,
the period shall end on the immediately following Business Day. Unless otherwise specifically indicated, all references to “dollars”
and “$” will be deemed references to the lawful money of the United States of America. Each of the parties hereto
has participated in the drafting and negotiation of this Agreement. If an ambiguity or question of intent or interpretation arises,
this Agreement must be construed as if it is drafted by all the parties hereto, and no presumption or burden of proof shall arise
favoring or disfavoring any party by virtue of authorship of any of the provisions of this Agreement. References to “days”
shall mean “calendar days” unless expressly stated otherwise. No specific provision, representation or warranty shall
limit the applicability of a more general provision, representation or warranty. It is the intent of the parties hereto that each
representation, warranty, covenant, condition and agreement contained in this Agreement shall be given full, separate, and independent
effect and that such provisions are cumulative. The phrase “ordinary course of business” shall be deemed to be followed
by the words “consistent with past practice” whether or not such words actually follow such phrase. Any reference
in this Agreement to a date or time shall be deemed to be such date or time in the City of New York, New York, U.S.A., unless
otherwise specified.


 


Section 9.04         Severability.
If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of Law, or public
policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated by the Transaction Documents are not affected in any manner materially
adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced,
the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties hereto
as closely as possible in a mutually acceptable manner in order that such transactions be consummated as originally contemplated
to the fullest extent possible.


 


Section 9.05         Entire
Agreement; Amendments. This Agreement (including the exhibits and schedules hereto and including the Investor Disclosure Schedule
and the Company Disclosure Schedule) and the other Transaction Documents constitute the entire agreement among the parties with
respect to the subject matter hereof and thereof and supersede all prior agreements and undertakings, both written and oral, among
the parties, or any of them, with respect to the subject matter hereof and thereof. This Agreement may not be amended except by
an instrument in writing signed on behalf of each of the parties hereto.


 


Section 9.06         Notices.
All notices, requests, claims, demands and other communications under this Agreement shall be in writing and shall be given or
made (and shall be deemed to have been duly given or made upon receipt) by delivery in person, by an internationally recognized
overnight courier service, or by email transmission (upon confirmation of receipt and with a confirmatory copy sent by an internationally
recognized overnight courier service) to the respective parties hereto at the following addresses (or at such other address for
a party as shall be specified in a notice given in accordance with this Section 9.06):


 






    	 	35	 



     


    

 


(a)          If
to the Company:


 


Oncobiologics, Inc.


7 Clarke Drive


Cranbury, New Jersey 08512


Email: LawrenceKenyon@OncoBiologics.com


Attention: Lawrence A. Kenyon


 


With a copy (which shall not constitute
notice) to:


 


Cooley LLP


1114 6th Avenue


New York, New York 10036


Email:ypierre@cooley.com


 


Attention: Yvan-Claude Pierre


 


(b)          If
to Investor:


 


BioLexis Pte. Limited


36 Robinson Road


#13-01


City House


Singapore 068877


Email:info@gmsholdings.com


Attention: Executive Director


 


With a copy (which shall not constitute
notice) to:


 


Shearman & Sterling LLP

599 Lexington Avenue

New York, NY 10022

Email: brien.wassner@shearman.com

Attention: Brien Wassner


 


Section 9.07         Assignment;
No Third Party Beneficiaries. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned
by any party hereto, in whole or in part (whether pursuant to a merger, by operation of law or otherwise), without the prior written
consent of the other party hereto, except that Investor may assign all or any of its rights and obligations under this Agreement
to any of its Affiliates; provided that no such assignment shall relieve Investor of its obligations under this Agreement
if such assignee does not perform such obligations. Subject to the immediately preceding sentence, this Agreement shall be binding
upon, inure to the benefit of, and be enforceable by, the parties hereto and their respective successors and permitted assigns,
and nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person any right, benefit or
remedy of any nature whatsoever under or by reason of this Agreement.


 



    	 	36	 



     


    




 


Section 9.08         Waiver.
Any party hereto entitled to the benefits thereof may, to the extent permitted by Law (a) extend the time for the performance
of any of the obligations or other acts of the other party hereto, (b) waive any inaccuracies in the representations and warranties
contained herein, and (c) waive compliance with any of the covenants, agreements or conditions contained herein. Any such extension
or waiver shall be valid only if set forth in an instrument in writing signed by the party or parties to be bound thereby. Notwithstanding
the foregoing, no failure or delay by a party hereto in exercising any right hereunder shall operate as a waiver thereof nor shall
any single or partial exercise thereof preclude any other or future exercise of any other right hereunder.


 


Section 9.09         Survival.
The representations, warranties, agreements and covenants shall survive the Second Closing, the Third Closing and the Final Closing,
as applicable.


 


Section 9.10         Specific
Performance. The parties hereto acknowledge and agree that irreparable damage would occur in the event that any of the provisions
of this Agreement were not performed in accordance with their specific terms or were otherwise breached. Each party agrees that,
in the event of any breach or threatened breach by the other party of any covenant or obligation contained in this Agreement,
the non-breaching party shall be entitled (in addition to any other remedy that may be available to it whether in law or equity,
including monetary damages) to (a) an Order of specific performance to enforce the observance and performance of such covenant
or obligation, and (b) an injunction restraining such breach or threatened breach. Each party further agrees that neither
the other party nor any other Person shall be required to obtain, furnish or post any bond or similar instrument in connection
with or as a condition to obtaining any remedy referred to in this Section 9.10, and each party irrevocably waives any
right it may have to require the obtaining, furnishing or posting of any such bond or similar instrument.


 


[Signature Page Follows]


 




    	 	37	 



     


    

 


IN WITNESS WHEREOF,
Investor and the Company have caused this Agreement to be executed as of the date first written above by their respective officers
thereunto duly authorized.


 




     


     


    

 


	 	ONCOBIOLOGICS, INC.
	 	 
	 	By: 	/s/ Lawrence A. Kenyon
	 	 	Name:  	Lawrence A. Kenyon
	 	 	Title:  	Chief Executive Officer and
	 	 	 	Chief Financial Officer


 


[PURCHASE AGREEMENT SIGNATURE PAGE]


 




     


     


    

 


	 	BIOLEXIS PTE. LIMITED
	 	 	 	 
	 	By:	/s/ Faisal G. Sukhtian
	 	 	Name:	Faisal G. Sukhtian
	 	 	Title:	Director


 


[PURCHASE AGREEMENT SIGNATURE PAGE]