Exhibit 10.48 


 


PLACEMENT AGENCY AGREEMENT


June __, 2017


Moody Capital Solutions, Inc.


208 Summitrail Lane


Dawsonville, GA 30524


Attn: Robert L. Rosenstein, President


 


Ladies and Gentlemen:


Introduction. Subject to the terms and conditions herein
(this “Agreement”), Guided Therapeutics, Inc., a
Delaware corporation (the “Company”), hereby
agrees to sell up to an aggregate of $_______ of registered
securities of the Company, including, but not limited to, _________
shares (the “Shares”) of the Company’s
Series D Convertible Preferred Stock (“Preferred
Stock”), shares of common stock, $0.001 par value per
share (the "Common Stock”) underlying the Preferred
Stock (“Conversion Shares”), common stock
purchase warrants (the “Warrants”) to purchase
up to an aggregate of ___________ shares of Common Stock and shares
of Common Stock underlying the Warrants (the “Warrant
Shares” and, together with the Preferred Stock, the
Conversion Shares and the Warrants, the
“Securities”) directly to various investors
(each, an “Investor” and, collectively, the
“Investors”) through Moody Capital Solutions,
Inc., as placement agent (the “Placement
Agent”). The documents executed and delivered by the
Company and the Investors in connection with the Offering (as
defined below), including, without limitation, a securities
purchase agreement (the “Purchase Agreement”),
shall be collectively referred to herein as the
“Transaction Documents.” The stated value of the
Preferred Stock is $______ per Share, the conversion price of for
each Conversion Share is $____ and the exercise price to the
Investors for each share of common stock issuable upon exercise of
the Warrants is $_____. The Placement Agent may retain other
brokers or dealers to act as sub-agents or selected-dealers on its
behalf in connection with the Offering.


The Company hereby confirms its agreement with the Placement Agent
as follows:


Section 1.                
Agreement to Act as Placement Agent.


(a)               
On the basis of the representations, warranties and agreements of
the Company herein contained, and subject to all the terms and
conditions of this Agreement, the Placement Agent shall be the
exclusive Placement Agent in connection with the offering and sale
by the Company of the Securities pursuant to the Company's
registration statement on Form S-1 (File No. 333-212384) (as
amended or supplemented from time to time, the
“Registration Statement”), with the terms of
such offering (the “Offering”) to be subject to
market conditions and negotiations between the Company, the
Placement Agent and the prospective Investors. The Placement Agent
will act on a reasonable best efforts basis and the Company agrees
and acknowledges that there is no guarantee of the successful
placement of the Securities, or any portion thereof, in the
prospective Offering. Under no circumstances will the Placement
Agent or any of its “Affiliates” (as defined below) be
obligated to underwrite or purchase any of the Shares for its own
account or otherwise provide any financing. The Placement Agent
shall act solely as the Company’s agent and not as principal
and the Placement Agent shall communicate to the Company each
reasonable offer to purchase Securities received by it as agent of
the Company. The Placement Agent shall have no authority to bind
the Company with respect to any prospective offer to purchase
Shares and the Company shall have the sole right to accept offers
to purchase Shares and may reject any such offer, in whole or in
part. Subject to the terms and conditions hereof, payment of the
purchase price for, and delivery of, the Securities shall be made
at one or more closings (each a “Closing” and
the date on which each Closing occurs, a “Closing
Date”). As compensation for services rendered, on each
Closing Date, the Company shall pay to the Placement Agent the fees
and expenses set forth below:


(i)                
A cash fee equal to 10% of the gross proceeds received by the
Company from the sale of the Securities at the closing of the
Offering (the “Closing”).


(ii)              
The Company also agrees to reimburse Placement Agent’s
expenses (with supporting invoices/receipts) equal to $50,000,
payable immediately upon a Closing of the Offering.


(b)              
The term of the Placement Agent's exclusive engagement will be
until the completion of the Offering (the “Exclusive
Term”); provided, however, that a party
hereto may terminate the engagement with respect to itself at any
time upon 10 days written notice to the other parties.
Notwithstanding anything to the contrary contained herein, the
provisions concerning confidentiality, indemnification and
contribution contained herein and the Company’s obligations
contained in the indemnification provisions will survive any
expiration or termination of this Agreement, and the
Company’s obligation to pay fees actually earned and payable
and to reimburse expenses actually incurred and reimbursable
pursuant to Section 1 hereof and which are permitted to be
reimbursed under FINRA Rule 5110(f)(2)(D), will survive any
expiration or termination of this Agreement. Nothing in this
Agreement shall be construed to limit the ability of the Placement
Agent or its Affiliates to pursue, investigate, analyze, invest in,
or engage in investment banking, financial advisory or any other
business relationship with Persons (as defined below) other than
the Company. As used herein (i) “Persons” means an
individual or corporation, partnership, trust, incorporated or
unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or
subdivision thereof) or other entity of any kind and (ii)
“Affiliate” means any Person that, directly or
indirectly through one or more intermediaries, controls or is
controlled by or is under common control with a Person as such
terms are used in and construed under Rule 405 under the Securities
Act of 1933, as amended (the “Securities
Act”).


Section 2.                
Representations, Warranties and Covenants of the Company. The
Company hereby represents, warrants and covenants to the Placement
Agent as of the date hereof, and as of each Closing Date, except as
otherwise disclosed in SEC Reports (as defined herein), that:


(a)               
Securities Law Filings. The Company filed with the
Securities and Exchange Commission (the
“Commission”) the Registration Statement under
the Securities Act on July 7, 2016 and the Commission declared the
Registration Statement effective on _________ ___, 2017. Following
the effectiveness of the Registration Statement and the
determination of pricing by the Company, the Company will file with
the Commission pursuant to Rules 430A and 424(b) under the
Securities Act, and the rules and regulations (the “Rules
and Regulations”) of the Commission promulgated
thereunder, a final prospectus relating to the placement of the
Securities, their respective pricings and the plan of distribution
thereof and will advise the Placement Agent of all further
information (financial and other) with respect to the Company
required to be set forth therein. The prospectus in the form in
which it appears in the Registration Statement is hereinafter
called the “Base Prospectus”; and the amended or
supplemented form of prospectus, in the form in which it will be
filed with the Commission pursuant to Rules 430A and/or 424(b)
(including the Base Prospectus as so amended or supplemented) is
hereinafter called the “Prospectus Supplement.”
The Registration Statement at the time it originally becomes
effective is hereinafter called the “Original Registration
Statement.” The Company has not received any notice that
the Commission has issued or intends to issue a stop order
suspending the effectiveness of the Registration Statement or the
use of the Base Prospectus or the Prospectus Supplement or intends
to commence a proceeding for any such purpose.


(b)              
Assurances. The Original Registration Statement contains all
exhibits and schedules as required by the Securities Act. The
Registration Statement, at the time it became effective, complied
in all material respects with the Securities Act and the applicable
Rules and Regulations and did not contain any untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading. The Base Prospectus, and the Prospectus Supplement,
each as of its respective date, comply or will comply in all
material respects with the Securities Act and the applicable Rules
and Regulations. Each of the Base Prospectus and the Prospectus
Supplement, as amended or supplemented, did not and will not
contain as of the date thereof any untrue statement of a material
fact or omit to state a material fact necessary in order to make
the statements therein, in light of the circumstances under which
they were made, not misleading. No post-effective amendment to the
Registration Statement reflecting any facts or events arising after
the date thereof which represent, individually or in the aggregate,
a fundamental change in the information set forth therein is
required to be filed with the Commission. Except for this
Agreement, there are no documents required to be filed with the
Commission in connection with the transaction contemplated hereby
that (x) have not been filed as required pursuant to the Securities
Act or (y) will not be filed within the requisite time period.
Except for this Agreement, there are no contracts or other
documents required to be described in the Base Prospectus or
Prospectus Supplement, or to be filed as exhibits or schedules to
the Registration Statement, which have not been described or filed
as required or will not be filed within the requisite time
period.


(c)               
Offering Materials. Neither the Company nor any of its
directors and officers has distributed and none of them will
distribute, prior to each Closing Date, any offering material in
connection with the offering and sale of the Securities other than
the Base Prospectus, the Prospectus Supplement, the Registration
Statement and any other materials permitted by the Securities
Act.


(d)              
Subsidiaries. All of the direct and indirect subsidiaries of
the Company (the “Subsidiaries”) are set forth
in the SEC Reports. The Company owns, directly or indirectly, all
of the capital stock or other equity interests of each Subsidiary
free and clear of any liens, charges, security interests,
encumbrances, rights of first refusal, preemptive rights or other
restrictions (collectively, “Liens”), and all of
the issued and outstanding shares of capital stock of each
Subsidiary are validly issued and are fully paid, non-assessable
and free of preemptive and similar rights to subscribe for or
purchase securities.


(e)               
Organization and Qualification. The Company and each of the
Subsidiaries is an entity duly incorporated or otherwise organized,
validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization, with the
requisite power and authority to own and use its properties and
assets and to carry on its business as currently conducted. Neither
the Company nor any Subsidiary is in violation nor default of any
of the provisions of its respective certificate or articles of
incorporation, bylaws or other organizational or charter documents.
Each of the Company and the Subsidiaries is duly qualified to
conduct business and is in good standing as a foreign corporation
or other entity in each jurisdiction in which the nature of the
business conducted or property owned by it makes such qualification
necessary, except where the failure to be so qualified or in good
standing, as the case may be, could not have or reasonably be
expected to result in: (i) a material adverse effect on the
legality, validity or enforceability of this Agreement or any other
agreement entered into between the Company and the Investors, (ii)
a material adverse effect on the results of operations, assets,
business, prospects or condition (financial or otherwise) of the
Company and the Subsidiaries, taken as a whole, or (iii) a material
adverse effect on the Company’s ability to perform in any
material respect on a timely basis its obligations under this
Agreement or the transactions contemplated under the Prospectus
Supplement (any of (i), (ii) or (iii), a “Material Adverse
Effect”) and no an action, claim, suit, investigation or
proceeding (including, without limitation, an informal
investigation or partial proceeding, such as a deposition), whether
commenced or threatened (“Proceeding”) has been
instituted in any such jurisdiction revoking, limiting or
curtailing or seeking to revoke, limit or curtail such power and
authority or qualification.


(f)               
Authorization; Enforcement. The Company has the requisite
corporate power and authority to enter into and to consummate the
transactions contemplated by this Agreement and the Prospectus
Supplement and otherwise to carry out its obligations hereunder and
thereunder. The execution and delivery of each of this Agreement by
the Company and the consummation by it of the transactions
contemplated hereby and thereby and under the Prospectus Supplement
have been duly authorized by all necessary action on the part of
the Company and no further action is required by the Company, the
Company’s Board of Directors (the “Board of
Directors”) or the Company’s stockholders in
connection therewith other than in connection with the Required
Approvals (as defined below). This Agreement has been duly executed
by the Company and, when delivered in accordance with the terms
hereof, will constitute the valid and binding obligation of the
Company enforceable against the Company in accordance with its
terms, except (i) as limited by general equitable principles and
applicable bankruptcy, insolvency, reorganization, moratorium and
other laws of general application affecting enforcement of
creditors’ rights generally, (ii) as limited by laws relating
to the availability of specific performance, injunctive relief or
other equitable remedies and (iii) insofar as indemnification and
contribution provisions may be limited by applicable law.


(g)               
No Conflicts. The execution, delivery and performance by the
Company of this Agreement and the transactions contemplated
pursuant to the Prospectus Supplement, the issuance and sale of the
Securities and the consummation by it of the transactions
contemplated hereby and thereby to which it is a party do not and
will not (i) conflict with or violate any provision of the
Company’s or any Subsidiary’s certificate or articles
of incorporation, bylaws or other organizational or charter
documents, or (ii) conflict with, or constitute a default (or an
event that with notice or lapse of time or both would become a
default) under, result in the creation of any Lien upon any of the
properties or assets of the Company or any Subsidiary, or give to
others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of,
any agreement, credit facility, debt or other instrument
(evidencing a Company or Subsidiary debt or otherwise) or other
understanding to which the Company or any Subsidiary is a party or
by which any property or asset of the Company or any Subsidiary is
bound or affected, or (iii) subject to the Required Approvals,
conflict with or result in a violation of any law, rule,
regulation, order, judgment, injunction, decree or other
restriction of any court or governmental authority to which the
Company or a Subsidiary is subject (including federal and state
securities laws and regulations), or by which any property or asset
of the Company or a Subsidiary is bound or affected; except in the
case of each of clauses (ii) and (iii), such as could not have or
reasonably be expected to result in a Material Adverse Effect.


(h)              
Filings, Consents and Approvals. The Company is not required
to obtain any consent, waiver, authorization or order of, give any
notice to, or make any filing or registration with, any court or
other federal, state, local or other governmental authority or
other Person in connection with the execution, delivery and
performance by the Company of this Agreement and the transactions
contemplated pursuant to the Prospectus Supplement, other than: (i)
the filing with the Commission of the Prospectus Supplement, (ii)
such consents, approvals, authorizations, registrations,
applications or qualifications to the OTC Marketplace (OTCQB) or
the OTC Bulletin Board (the “Trading Market”)
for the listing of the Securities for trading thereon in the time
and manner required thereby, (iii) such consents, approvals,
authorizations, registrations or qualifications as may be required
under the Securities and Exchange Act of 1934, as amended (the
“Exchange Act”), state or foreign securities or
Blue Sky laws and the rules of FINRA in connection with the
placement and distribution of the Securities by the Placement Agent
and (iv) such consents, approvals, orders, authorizations and
filings, in each case, the failure of which to make or obtain is
not reasonably likely to result in a Material Adverse Effect
(collectively, the “Required Approvals”).


(i)                
Issuance of the Securities; Registration. The Shares and
Warrants are duly authorized and, when issued and paid for in
accordance with the Prospectus Supplement, will be duly and validly
issued, fully paid and nonassessable, free and clear of all Liens
imposed by the Company. The Conversion Shares and Warrant Shares,
when issued in accordance with the terms of the Preferred Stock and
the Warrants, respectfully, will be validly issued, fully paid and
nonassessable, free and clear of all Liens imposed by the Company.
The Company has reserved from its duly authorized capital stock the
maximum number of shares of Common Stock issuable pursuant to the
Prospectus Supplement.


(j)                
Capitalization. The capitalization of the Company is as set
forth in the SEC Reports. The Company has not issued any capital
stock since its most recently filed periodic report under the
Exchange Act, other than pursuant to the exercise of employee stock
options under the Company’s stock option plans, the issuance
of shares of Common Stock to employees pursuant to the
Company’s employee stock purchase plans and pursuant to the
conversion and/or exercise of securities of the Company or the
Subsidiaries which would entitle the holder thereof to acquire at
any time any Common Stock, including, without limitation, any debt,
preferred stock, rights, options, warrants or other instrument that
is at any time convertible into or exercisable or exchangeable for,
or otherwise entitles the holder thereof to receive, Common Stock
(“Common Stock Equivalents”) outstanding as of
the date of the most recently filed periodic report under the
Exchange Act. All of the outstanding shares of capital stock of the
Company are validly issued, fully paid and nonassessable, have been
issued in compliance with all federal and state securities laws,
and none of such outstanding shares was issued in violation of any
preemptive rights or similar rights to subscribe for or purchase
securities. No further approval or authorization of any
stockholder, the Board of Directors or others is required for the
issuance and sale of the Securities.


(k)              
SEC Reports; Financial Statements. The Company has filed all
reports, schedules, forms, statements and other documents required
to be filed by the Company under the Securities Act and the
Exchange Act, including pursuant to Section 13(a) or 15(d) thereof,
for the two years preceding the date hereof (or such shorter period
as the Company was required by law or regulation to file such
material) (the foregoing materials, including the exhibits thereto
and documents incorporated by reference therein, together with the
Prospectus and the Prospectus Supplement, being collectively
referred to herein as the “SEC Reports”). As of
their respective dates (or, if amended, as of the date of any
amendment thereto), the SEC Reports complied in all material
respects with the requirements of the Securities Act and the
Exchange Act, as applicable, and none of the SEC Reports, when
filed, contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The
Company has never been an issuer subject to Rule 144(i) under the
Securities Act. The financial statements of the Company included in
the SEC Reports comply in all material respects with applicable
accounting requirements and the rules and regulations of the
Commission with respect thereto as in effect at the time of filing.
Such financial statements have been prepared in accordance with
United States generally accepted accounting principles applied on a
consistent basis during the periods involved
(“GAAP”), except as may be otherwise specified
in such financial statements or the notes thereto and except that
unaudited financial statements may not contain all footnotes
required by GAAP, and fairly present in all material respects the
financial position of the Company and its consolidated Subsidiaries
as of and for the dates thereof and the results of operations and
cash flows for the periods then ended, subject, in the case of
unaudited statements, to normal, immaterial, year-end audit
adjustments.


(l)                
Material Changes; Undisclosed Events, Liabilities or
Developments. Since the date of the latest audited financial
statements included within the SEC Reports, except as specifically
disclosed in a subsequent SEC Report filed prior to the date
hereof, (i) there has been no event, occurrence or development that
has had or that could reasonably be expected to result in a
Material Adverse Effect, (ii) the Company has not incurred any
liabilities (contingent or otherwise) that would reasonably be
expected to result in a Material Adverse Effect other than (A)
trade payables and accrued expenses incurred in the ordinary course
of business consistent with past practice and (B) liabilities not
required to be reflected in the Company’s financial
statements pursuant to GAAP or disclosed in filings made with the
Commission, (iii) the Company has not altered its method of
accounting, (iv) the Company has not declared or made any dividend
or distribution of cash or other property to its stockholders or
purchased, redeemed or made any agreements to purchase or redeem
any shares of its capital stock and (v) the Company has not issued
any equity securities to any officer, director or Affiliate, except
pursuant to existing Company stock option plans. The Company does
not have pending before the Commission any request for confidential
treatment of information. Except for the issuance of the Securities
contemplated by the Prospectus Supplement or disclosed in the
Prospectus Supplement, no event, liability, fact, circumstance,
occurrence or development has occurred or exists or is reasonably
expected to occur or exist with respect to the Company or its
Subsidiaries or their respective businesses, prospects, properties,
operations, assets or financial condition that would be required to
be disclosed by the Company under applicable securities laws at the
time this representation is made or deemed made that has not been
publicly disclosed at least 1 Trading Day prior to the date that
this representation is made.


(m)            
Litigation. There is no action, suit, inquiry, notice of
violation, proceeding or investigation pending or, to the knowledge
of the Company, threatened against or affecting the Company, any
Subsidiary or any of their respective properties before or by any
court, arbitrator, governmental or administrative agency or
regulatory authority (federal, state, county, local or foreign)
(collectively, an “Action”) which (i) adversely
affects or challenges the legality, validity or enforceability of
any of this Agreement and the transactions contemplated pursuant to
the Prospectus Supplement or the Securities or (ii) could, if there
were an unfavorable decision, have or reasonably be expected to
result in a Material Adverse Effect. Neither the Company nor any
Subsidiary is or has been the subject of any Action involving a
claim of violation of or liability under federal or state
securities laws. No officer or director of the Company or any
Subsidiary is or has been the subject of any Action involving a
claim of breach of fiduciary duty. There has not been, and to the
knowledge of the Company, there is not pending or contemplated, any
investigation by the Commission involving the Company or any
current or former director or officer of the Company in his or her
role as such. The Commission has not issued any stop order or other
order suspending the effectiveness of any registration statement
filed by the Company or any Subsidiary under the Exchange Act or
the Securities Act.


(n)              
Labor Relations. No material labor dispute exists or, to the
knowledge of the Company, is imminent with respect to any of the
employees of the Company, which could reasonably be expected to
result in a Material Adverse Effect. None of the Company’s or
its Subsidiaries’ employees is a member of a union that
relates to such employee’s relationship with the Company or
such Subsidiary, and neither the Company nor any of its
Subsidiaries is a party to a collective bargaining agreement, and
the Company and its Subsidiaries believe that their relationships
with their respective labor forces are good. No executive officer
of the Company or any Subsidiary, to the knowledge of the Company,
is, or is now expected to be, in violation of any material term of
any employment contract, confidentiality, disclosure or proprietary
information agreement or non-competition agreement, or any other
contract or agreement or any restrictive covenant in favor of any
third party, and the continued employment of each such executive
officer does not subject the Company or any of its Subsidiaries to
any liability with respect to any of the foregoing matters.


(o)              
Compliance. Neither the Company nor any Subsidiary: (i) is
in default under or in violation of (and no event has occurred that
has not been waived that, with notice or lapse of time or both,
would result in a default by the Company or any Subsidiary under),
nor has the Company or any Subsidiary received notice of a claim
that it is in default under or that it is in violation of, any
indenture, loan or credit agreement or any other agreement or
instrument to which it is a party or by which it or any of its
properties is bound (whether or not such default or violation has
been waived), (ii) is in violation of any judgment, decree or order
of any court, arbitrator or governmental authority or (iii) is or
has been in violation of any statute, rule, ordinance or regulation
of any governmental authority, including without limitation all
foreign, federal, state and local laws relating to taxes,
environmental protection, occupational health and safety, product
quality and safety and employment and labor matters, except in each
of clauses (i), (ii) or (iii), as could not have or reasonably be
expected to result in a Material Adverse Effect.


(p)              
Environmental Laws.	The Company and its Subsidiaries (i) are
in compliance with all federal, state, local and foreign laws
relating to pollution or protection of human health or the
environment (including ambient air, surface water, groundwater,
land surface or subsurface strata), including laws relating to
emissions, discharges, releases or threatened releases of
chemicals, pollutants, contaminants, or toxic or hazardous
substances or wastes (collectively, “Hazardous
Materials”) into the environment, or otherwise relating
to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Hazardous Materials, as
well as all authorizations, codes, decrees, demands, or demand
letters, injunctions, judgments, licenses, notices or notice
letters, orders, permits, plans or regulations, issued, entered,
promulgated or approved thereunder (“Environmental
Laws”); (ii) have received all permits licenses or other
approvals required of them under applicable Environmental Laws to
conduct their respective businesses; and (iii) are in compliance
with all terms and conditions of any such permit, license or
approval where in each clause (i), (ii) and (iii), except where the
failure to so comply would not be reasonably expected to have,
individually or in the aggregate, a Material Adverse Effect.


(q)              
Regulatory Permits. The Company and the Subsidiaries possess
all certificates, authorizations and permits issued by the
appropriate federal, state, local or foreign regulatory authorities
necessary to conduct their respective businesses as described in
the SEC Reports, except where the failure to possess such permits
could not reasonably be expected to result in a Material Adverse
Effect (“Material Permits”), and neither the
Company nor any Subsidiary has received any notice of proceedings
relating to the revocation or modification of any Material
Permit.


(r)                
Title to Assets. The Company and the Subsidiaries have good
and marketable title in fee simple to all real property owned by
them and good and marketable title in all personal property owned
by them that is material to the business of the Company and the
Subsidiaries, in each case free and clear of all Liens, except
those that are not reasonably likely to result in a Material
Adverse Effect, Liens as do not materially affect the value of such
property and do not materially interfere with the use made and
proposed to be made of such property by the Company and the
Subsidiaries and Liens for the payment of federal, state or other
taxes, for which appropriate reserves have been made therefor in
accordance with GAAP and, the payment of which is neither
delinquent nor subject to penalties. Any real property and
facilities held under lease by the Company and the Subsidiaries are
held by them under valid, subsisting and enforceable leases with
which the Company and the Subsidiaries are in compliance.


(s)               
Patents and Trademarks. The Company and the Subsidiaries
have, or have rights to use, all patents, patent applications,
trademarks, trademark applications, service marks, trade names,
trade secrets, inventions, copyrights, licenses and other
intellectual property rights and similar rights necessary or
material for use in connection with their respective businesses as
described in the SEC Reports and which the failure to so have could
have a Material Adverse Effect (collectively, the
“Intellectual Property Rights”). None of, and
neither the Company nor any Subsidiary has received a notice
(written or otherwise) that any of, the Intellectual Property
Rights has expired, terminated or been abandoned, or is expected to
expire or terminate or be abandoned, within two (2) years from the
date of this Agreement. Neither the Company nor any Subsidiary has
received, since the date of the latest audited financial statements
included within the SEC Reports, a notice (written or otherwise) of
a claim or otherwise has any knowledge that the Intellectual
Property Rights violate or infringe upon the rights of any Person,
except as would not have a Material Adverse Effect. To the
knowledge of the Company, all such Intellectual Property Rights are
enforceable and there is no existing infringement by another Person
of any of the Intellectual Property Rights. The Company and its
Subsidiaries have taken reasonable security measures to protect the
secrecy, confidentiality and value of all of their intellectual
properties, except where failure to do so could not, individually
or in the aggregate, reasonably be expected to have a Material
Adverse Effect.


(t)                
Insurance. The Company and the Subsidiaries are insured by
insurers of recognized financial responsibility against such losses
and risks and in such amounts as the Company believes are prudent
and customary in the businesses in which the Company and the
Subsidiaries are engaged, including, but not limited to, directors
and officers insurance coverage. Neither the Company nor any
Subsidiary has any reason to believe that it will not be able to
renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may
be necessary to continue its business without a significant
increase in cost.


(u)              
Transactions With Affiliates and Employees. None of the
officers or directors of the Company or any Subsidiary and, to the
knowledge of the Company, none of the employees of the Company or
any Subsidiary, is presently a party to any transaction with the
Company or any Subsidiary (other than for services as employees,
officers and directors), including any contract, agreement or other
arrangement providing for the furnishing of services to or by,
providing for rental of real or personal property to or from,
providing for the borrowing of money from or lending of money to or
otherwise requiring payments to or from any officer, director or
such employee or, to the knowledge of the Company, any entity in
which any officer, director, or any such employee has a substantial
interest or is an officer, director, trustee, stockholder, member
or partner, in each case in excess of $120,000 other than for: (i)
payment of salary or consulting fees for services rendered, (ii)
reimbursement for expenses incurred on behalf of the Company and
(iii) other employee benefits, including stock option agreements
under any stock option plan of the Company.


(v)              
Sarbanes-Oxley; Internal Accounting Controls. The Company
and the Subsidiaries are in compliance with any and all applicable
requirements of the Sarbanes-Oxley Act of 2002 that are effective
as of the date hereof, and any and all applicable rules and
regulations promulgated by the Commission thereunder that are
effective as of the date hereof and as of the Closing Date. The
Company and the Subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurance
that: (i) transactions are executed in accordance with
management’s general or specific authorizations, (ii)
transactions are recorded as necessary to permit preparation of
financial statements in conformity with GAAP and to maintain asset
accountability, (iii) access to assets is permitted only in
accordance with management’s general or specific
authorization, and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. The
Company and the Subsidiaries have established disclosure controls
and procedures (as defined in Exchange Act Rules 13a-15(e) and
15d-15(e)) for the Company and the Subsidiaries and designed such
disclosure controls and procedures to ensure that information
required to be disclosed by the Company in the reports it files or
submits under the Exchange Act is recorded, processed, summarized
and reported, within the time periods specified in the
Commission’s rules and forms. The Company’s certifying
officers have evaluated the effectiveness of the Company’s
disclosure controls and procedures of the Company and the
Subsidiaries as of the end of the period covered by the
Company’s most recently filed periodic report under the
Exchange Act (such date, the “Evaluation Date”).
The Company presented in its most recently filed periodic report
under the Exchange Act the conclusions of the certifying officers
about the effectiveness of the disclosure controls and procedures
based on their evaluations as of the Evaluation Date. Since the
Evaluation Date, there have been no changes in the internal control
over financial reporting (as such term is defined in the Exchange
Act) of the Company and its Subsidiaries that have materially
affected, or is reasonably likely to materially affect, the
internal control over financial reporting of the Company and its
Subsidiaries.


(w)             
Certain Fees. Except as set forth in the Prospectus
Supplement, no brokerage or finder’s fees or commissions are
or will be payable by the Company to any broker, financial advisor
or consultant, finder, placement agent, investment banker, bank or
other Person with respect to the transactions contemplated by this
Agreement and the transactions contemplated pursuant to the
Prospectus Supplement. The Investors shall have no obligation with
respect to any fees or with respect to any claims made by or on
behalf of other Persons for fees of a type contemplated in this
Section that may be due in connection with the transactions
contemplated by this Agreement and the transactions contemplated
pursuant to the Prospectus Supplement.


(x)              
Investment Company. The Company is not, and is not an
Affiliate of, and immediately after receipt of payment for the
Securities, will not be or be an Affiliate of, an “investment
company” within the meaning of the Investment Company Act of
1940, as amended. The Company shall conduct its business in a
manner so that it will not become an “investment
company” subject to registration under the Investment Company
Act of 1940, as amended.


(y)              
Registration Rights. No Person has any right to cause the
Company or any Subsidiary to effect the registration under the
Securities Act of any securities of the Company or any
Subsidiary.


(z)               
Listing and Maintenance Requirements. The Common Stock is
registered pursuant to Section 12(b) or 12(g) of the Exchange Act,
and the Company has taken no action designed to, or which to its
knowledge is likely to have the effect of, terminating the
registration of the Common Stock under the Exchange Act nor has the
Company received any notification that the Commission is
contemplating terminating such registration. The Company has not,
in the 6 months preceding the date hereof, received notice from any
Trading Market on which the Common Stock is or has been listed or
quoted to the effect that the Company is not in compliance with the
listing or maintenance requirements of such Trading Market. The
Company is, and has no reason to believe that it will not in the
foreseeable future continue to be, in compliance with all such
listing and maintenance requirements. The Common Stock is currently
eligible for electronic transfer through the Depository Trust
Company or another established clearing corporation and the Company
is current in payment of the fees to the Depository Trust Company
(or such other established clearing corporation) in connection with
such electronic transfer.


(aa)           
Application of Takeover Protections. The Company and the
Board of Directors have taken all necessary action, if any, in
order to render inapplicable any control share acquisition,
business combination, poison pill (including any distribution under
a rights agreement) or other similar anti-takeover provision under
the Company’s certificate of incorporation (or similar
charter documents) or the laws of its state of incorporation that
is or could become applicable to the Investors as a result of the
Investors and the Company fulfilling their obligations or
exercising their rights under this Agreement and the transactions
contemplated pursuant to the Prospectus Supplement, including
without limitation as a result of the Company’s issuance of
the Securities and the Investors’ ownership of the
Securities.


(bb)          
Disclosure. Except with respect to the material terms and
conditions of the transactions contemplated by this Agreement and
the transactions contemplated pursuant to the Prospectus
Supplement, the Company confirms that neither it nor any other
Person acting on its behalf has provided any of the Investors or
their agents or counsel with any information that it believes
constitutes or might constitute material, non-public information
which is not otherwise disclosed in the Prospectus Supplement. The
Company understands and confirms that the Investors will rely on
the foregoing representation in effecting transactions in
securities of the Company. All of the disclosure furnished by or on
behalf of the Company to the Investors regarding the Company and,
its Subsidiaries, their respective businesses and the transactions
contemplated hereby is true and correct and does not contain any
untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements made therein, in
light of the circumstances under which they were made, not
misleading.


(cc)           
No Integrated Offering. Neither the Company, nor any of its
Affiliates, nor any Person acting on its or their behalf has,
directly or indirectly, made any offers or sales of any security or
solicited any offers to buy any security, under circumstances that
would cause this offering of the Securities to be integrated with
prior offerings by the Company for purposes of any applicable
shareholder approval provisions of any Trading Market on which any
of the securities of the Company are listed or designated.


(dd)          
Solvency. Based on the consolidated financial condition of
the Company as of each Closing Date, after giving effect to the
receipt by the Company of the proceeds from the sale of the
Securities hereunder, (i) the fair saleable value of the
Company’s assets exceeds the amount that will be required to
be paid on or in respect of the Company’s existing debts and
other liabilities (including known contingent liabilities) as they
mature, (ii) the Company’s assets do not constitute
unreasonably small capital to carry on its business as now
conducted and as proposed to be conducted including its capital
needs taking into account the particular capital requirements of
the business conducted by the Company, consolidated and projected
capital requirements and capital availability thereof, and (iii)
the current cash flow of the Company, together with the proceeds
the Company would receive, were it to liquidate all of its assets,
after taking into account all anticipated uses of the cash, would
be sufficient to pay all amounts on or in respect of its
liabilities when such amounts are required to be paid. The Company
does not intend to incur debts beyond its ability to pay such debts
as they mature (taking into account the timing and amounts of cash
to be payable on or in respect of its debt). The Company has no
knowledge of any facts or circumstances which lead it to believe
that it will file for reorganization or liquidation under the
bankruptcy or reorganization laws of any jurisdiction within one
year from each Closing Date. The SEC Reports sets forth as of the
date hereof all outstanding secured and unsecured Indebtedness of
the Company or any Subsidiary, or for which the Company or any
Subsidiary has commitments. For the purposes of this Agreement,
“Indebtedness” means (x) any liabilities for
borrowed money or amounts owed in excess of $50,000 (other than
trade accounts payable incurred in the ordinary course of
business), (y) all guaranties, endorsements and other contingent
obligations in respect of indebtedness of others, whether or not
the same are or should be reflected in the Company’s
consolidated balance sheet (or the notes thereto), except
guaranties by endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of
business; and (z) the present value of any lease payments in excess
of $50,000 due under leases required to be capitalized in
accordance with GAAP. Neither the Company nor any Subsidiary is in
default with respect to any Indebtedness.


(ee)           
Tax Status. Except for matters that would not, individually
or in the aggregate, have or reasonably be expected to result in a
Material Adverse Effect, the Company and its Subsidiaries (i) has
made or filed all United States federal, state and local income and
all foreign income and franchise tax returns, reports and
declarations required by any jurisdiction to which it is subject,
(ii) has paid all taxes and other governmental assessments and
charges that are material in amount, shown or determined to be due
on such returns, reports and declarations and (iii) has set aside
on its books provision reasonably adequate for the payment of all
material taxes for periods subsequent to the periods to which such
returns, reports or declarations apply. There are no unpaid taxes
in any material amount claimed to be due by the taxing authority of
any jurisdiction, and the officers of the Company or of any
Subsidiary know of no basis for any such claim.


(ff)            
Foreign Corrupt Practices. Neither the Company nor any
Subsidiary, nor to the knowledge of the Company or any Subsidiary,
any agent or other person acting on behalf of the Company or any
Subsidiary, has (i) directly or indirectly, used any funds for
unlawful contributions, gifts, entertainment or other unlawful
expenses related to foreign or domestic political activity, (ii)
made any unlawful payment to foreign or domestic government
officials or employees or to any foreign or domestic political
parties or campaigns from corporate funds, (iii) failed to disclose
fully any contribution made by the Company or any Subsidiary (or
made by any person acting on its behalf of which the Company is
aware) which is in violation of law, or (iv) violated in any
material respect any provision of the Foreign Corrupt Practices Act
of 1977, as amended.


(gg)           
FDA. As to each product subject to the jurisdiction of the
U.S. Food and Drug Administration (“FDA”) under
the Federal Food, Drug and Cosmetic Act, as amended, and the
regulations thereunder (“FDCA”) that is
manufactured, packaged, labeled, tested, distributed, sold, and/or
marketed by the Company or any of its Subsidiaries (each such
product, a “Pharmaceutical Product”), such
Pharmaceutical Product is being manufactured, packaged, labeled,
tested, distributed, sold and/or marketed by the Company in
compliance with all applicable requirements under FDCA and similar
laws, rules and regulations relating to registration,
investigational use, premarket clearance, licensure, or application
approval, good manufacturing practices, good laboratory practices,
good clinical practices, product listing, quotas, labeling,
advertising, record keeping and filing of reports, except where the
failure to be in compliance would not have a Material Adverse
Effect. There is no pending, completed or, to the Company's
knowledge, threatened, action (including any lawsuit, arbitration,
or legal or administrative or regulatory proceeding, charge,
complaint, or investigation) against the Company or any of its
Subsidiaries, and none of the Company or any of its Subsidiaries
has received any notice, warning letter or other communication from
the FDA or any other governmental entity, which (i) contests the
premarket clearance, licensure, registration, or approval of, the
uses of, the distribution of, the manufacturing or packaging of,
the testing of, the sale of, or the labeling and promotion of any
Pharmaceutical Product, (ii) withdraws its approval of, requests
the recall, suspension, or seizure of, or withdraws or orders the
withdrawal of advertising or sales promotional materials relating
to, any Pharmaceutical Product, (iii) imposes a clinical hold on
any clinical investigation by the Company or any of its
Subsidiaries, (iv) enjoins production at any facility of the
Company or any of its Subsidiaries, (v) enters or proposes to enter
into a consent decree of permanent injunction with the Company or
any of its Subsidiaries, or (vi) otherwise alleges any violation of
any laws, rules or regulations by the Company or any of its
Subsidiaries, and which, either individually or in the aggregate,
would have a Material Adverse Effect. The properties, business and operations
of the Company have been and are being conducted in all material
respects in accordance with all applicable laws, rules and
regulations of the FDA.  The Company has not been informed by
the FDA that the FDA will prohibit the marketing, sale, license or
use in the United States of any product proposed to be developed,
produced or marketed by the Company nor has the FDA expressed any
concern as to approving or clearing for marketing any product being
developed or proposed to be developed by the Company.


(hh)          
Accountants. The Company’s accounting firm is set
forth in the SEC Reports. To the knowledge and belief of the
Company, such accounting firm (i) is a registered public accounting
firm as required by the Exchange Act and (ii) shall express its
opinion with respect to the financial statements to be included in
the Company’s Annual Report for the fiscal year ending
December 31, 2017.


(ii)              
Regulation M Compliance.  The Company has not, and to
its knowledge no one acting on its behalf has, (i) taken, directly
or indirectly, any action designed to cause or to result in the
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of any of the Securities,
(ii) sold, bid for, purchased, or, paid any compensation for
soliciting purchases of, any of the Securities, or (iii) paid or
agreed to pay to any Person any compensation for soliciting another
to purchase any other securities of the Company, other than, in the
case of clauses (ii) and (iii), compensation paid to the
Company’s placement agent in connection with the placement of
the Securities.


(jj)              
Office of Foreign Assets
Control. Neither the Company nor any Subsidiary, to the
Company's knowledge, any director, officer, agent, employee or
affiliate of the Company or any Subsidiary is currently subject to
any U.S. sanctions administered by the Office of Foreign Assets
Control of the U.S. Treasury Department
(“OFAC”).


(kk)          
U.S. Real Property Holding
Corporation. The Company is not and has never been a U.S. real
property holding corporation within the meaning of Section 897 of
the Internal Revenue Code of 1986, as amended, and the Company
shall so certify upon Investor’s request.


(ll)              
Bank Holding Company
Act. Neither the Company nor any of its Subsidiaries or
Affiliates is subject to the Bank Holding Company Act of 1956, as
amended (the “BHCA”) and to regulation by the
Board of Governors of the Federal Reserve System (the
“Federal Reserve”). Neither the Company nor any
of its Subsidiaries or Affiliates owns or controls, directly or
indirectly, five percent (5%) or more of the outstanding shares of
any class of voting securities or twenty-five percent or more of
the total equity of a bank or any entity that is subject to the
BHCA and to regulation by the Federal Reserve. Neither the Company
nor any of its Subsidiaries or Affiliates exercises a controlling
influence over the management or policies of a bank or any entity
that is subject to the BHCA and to regulation by the Federal
Reserve.


(mm)      
Money Laundering. The
operations of the Company and its Subsidiaries are and have been
conducted at all times in compliance with applicable financial
record-keeping and reporting requirements of the Currency and
Foreign Transactions Reporting Act of 1970, as amended, applicable
money laundering statutes and applicable rules and regulations
thereunder (collectively, the “Money Laundering
Laws”), and no action, suit or proceeding by or before
any court or governmental agency, authority or body or any
arbitrator involving the Company with respect to the Money
Laundering Laws is pending or, to the knowledge of the Company,
threatened.


(nn)          
Certificates.
Any certificate signed by an officer of the Company and delivered
to the Placement Agent or to counsel for the Placement
Agent shall be deemed to be a representation and warranty by the
Company to the Placement Agent as to the matters set forth
therein.


(oo)          
Reliance. The Company acknowledges that the Placement
Agent will rely upon the accuracy and truthfulness of the foregoing
representations and warranties and hereby consents to such
reliance.	


(pp)          
Forward-Looking Statements. No forward-looking statements
(within the meaning of Section 27A of the Securities Act and
Section 21E of the Exchange Act) contained in either the
Registration Statement, the Base Prospectus or the Prospectus
Supplement has been made or reaffirmed without a reasonable basis
or has been disclosed other than in good faith.


(qq)          
Statistical or Market-Related Data. Any statistical,
industry-related and market-related data included or incorporated
by reference in the Registration Statement, the Base Prospectus or
the Prospectus Supplement, are based on or derived from sources
that the Company reasonably and in good faith believes to be
reliable and accurate, and such data agree with the sources from
which they are derived.


(rr)             
FINRA Affiliations. There are no affiliations with any FINRA
member firm among the Company’s officers, directors or, to
the knowledge of the Company, any five percent (5%) or greater
stockholder of the Company.


Section 3.                
Delivery and Payment. Each Closing shall occur at the offices
of the Ellenoff Grossman & Schole LLP, 1345 Avenue of the
Americas, New York, New York 10105 (“Placement Agent
Counsel”) (or at such other place as shall be agreed upon
by the Placement Agent and the Company). Subject to the terms and
conditions hereof, at each Closing payment of the purchase price
for the Securities sold on such Closing Date shall be made by
Federal Funds wire transfer, against delivery of such Securities,
and such Securities shall be registered in such name or names and
shall be in such denominations, as the Placement Agent may request
at least one business day before the time of purchase (as defined
below).


Deliveries of the documents with respect to the purchase of the
Securities, if any, shall be made at the offices of Placement Agent
Counsel. All actions taken at a Closing shall be deemed to have
occurred simultaneously.


Section 4.                
Covenants and Agreements of the Company. The Company further
covenants and agrees with the Placement Agent as follows:


(a)               
Registration Statement Matters. The Company will advise the
Placement Agent promptly after it receives notice thereof of the
time when any amendment to the Registration Statement has been
filed or becomes effective or any supplement to any Prospectus
Supplement or any amended Prospectus Supplement has been filed and
will furnish the Placement Agent with copies thereof. The Company
will file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 14 or 15(d) of the Exchange
Act subsequent to the date of any Prospectus Supplement and for so
long as the delivery of a prospectus is required in connection with
the Offering. The Company will advise the Placement Agent, promptly
after it receives notice thereof (i) of any request by the
Commission to amend the Registration Statement or to amend or
supplement any Prospectus Supplement or for additional information,
and (ii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or any
post-effective amendment thereto, if any, or any amendment or
supplement thereto or any order preventing or suspending the use of
the Base Prospectus or any Prospectus Supplement or any amendment
or supplement thereto or any post-effective amendment to the
Registration Statement, of the suspension of the qualification of
the Securities for offering or sale in any jurisdiction, of the
institution or threatened institution of any proceeding for any
such purpose, or of any request by the Commission for the amending
or supplementing of the Registration Statement or a Prospectus
Supplement or for additional information. The Company shall use its
best efforts to prevent the issuance of any such stop order or
prevention or suspension of such use.  If the Commission shall
enter any such stop order or order or notice of prevention or
suspension at any time, the Company will use its best efforts to
obtain the lifting of such order at the earliest possible moment,
or will file a new registration statement and use its best efforts
to have such new registration statement declared effective as soon
as practicable.  Additionally, the Company agrees that it
shall comply with the provisions of Rules 424(b), 430A, 430B
and 430C, as applicable, under the Securities Act, including with
respect to the timely filing of documents thereunder, and will use
its reasonable efforts to confirm that any filings made by the
Company under such Rule 424(b) are received in a timely
manner by the Commission.


(b)              
Blue Sky Compliance. The Company will cooperate with the
Placement Agent and the Investors in endeavoring to qualify the
Securities for sale under the securities laws of such jurisdictions
(United States and foreign) as the Placement Agent and the
Investors may reasonably request and will make such applications,
file such documents, and furnish such information as may be
reasonably required for that purpose, provided the Company shall
not be required to qualify as a foreign corporation or to file a
general consent to service of process in any jurisdiction where it
is not now so qualified or required to file such a consent, and
provided further that the Company shall not be required to produce
any new disclosure document other than a Prospectus Supplement. The
Company will, from time to time, prepare and file such statements,
reports and other documents as are or may be required to continue
such qualifications in effect for so long a period as the Placement
Agent may reasonably request for distribution of the Securities.
The Company will advise the Placement Agent promptly of the
suspension of the qualification or registration of (or any such
exemption relating to) the Securities for offering, sale or trading
in any jurisdiction or any initiation or threat of any proceeding
for any such purpose, and in the event of the issuance of any order
suspending such qualification, registration or exemption, the
Company shall use its best efforts to obtain the withdrawal thereof
at the earliest possible moment.


(c)               
Amendments and Supplements to a Prospectus Supplement and Other
Matters. The Company will comply with the Securities Act and
the Exchange Act, and the rules and regulations of the Commission
thereunder, so as to permit the completion of the distribution of
the Securities as contemplated in this Agreement and any Prospectus
Supplement. If during the period in which a prospectus is required
by law to be delivered in connection with the distribution of
Securities contemplated by any Prospectus Supplement (the
“Prospectus Delivery Period”), any event shall
occur as a result of which, in the judgment of the Company or in
the opinion of the Placement Agent or counsel for the Placement
Agent, it becomes necessary to amend or supplement any Prospectus
Supplement in order to make the statements therein, in the light of
the circumstances under which they were made, as the case may be,
not misleading, or if it is necessary at any time to amend or
supplement any Prospectus Supplement to comply with any law, the
Company will promptly prepare and file with the Commission, and
furnish at its own expense to the Placement Agent and to dealers,
an appropriate amendment to the Registration Statement or
supplement to the Registration Statement or any Prospectus
Supplement that is necessary in order to make the statements in any
Prospectus Supplement as so amended or supplemented, in the light
of the circumstances under which they were made, as the case may
be, not misleading, or so that the Registration Statement or any
Prospectus Supplement, as so amended or supplemented, will comply
with law. Before amending the Registration Statement or
supplementing any Prospectus Supplement in connection with the
Offering, the Company will furnish the Placement Agent with a copy
of such proposed amendment or supplement and will not file any such
amendment or supplement to which the Placement Agent reasonably
objects.


(d)              
Copies of any Amendments and Supplements to a Prospectus
Supplement. The Company will furnish the Placement Agent,
without charge, during the period beginning on the date hereof and
ending on the later of the last Closing Date of the Offering, as
many copies of the any Prospectus Supplement and any amendments and
supplements thereto as the Placement Agent may reasonably
request.


(e)               
Free Writing Prospectus. The Company covenants that it will
not, unless it obtains the prior written consent of the Placement
Agent, make any offer relating to the Securities that would
constitute an Company Free Writing Prospectus or that would
otherwise constitute a “free writing prospectus” (as
defined in Rule 405 of the Securities Act) required to be filed by
the Company with the Commission or retained by the Company under
Rule 433 of the Securities Act. In the event that the Placement
Agent expressly consents in writing to any such free writing
prospectus (a “Permitted Free Writing
Prospectus”), the Company covenants that it shall (i)
treat each Permitted Free Writing Prospectus as a Company free
writing prospectus, and (ii) comply with the requirements of Rule
164 and 433 of the Securities Act applicable to such Permitted Free
Writing Prospectus, including in respect of timely filing with the
Commission, legending and record keeping.


(f)               
Transfer Agent. The Company will maintain, at its expense, a
registrar and transfer agent for the Common Stock.


(g)               
Earnings Statement. As soon as practicable and in accordance
with applicable requirements under the Securities Act, but in any
event not later than 18 months after the last Closing Date, the
Company will make generally available to its security holders and
to the Placement Agent an earnings statement, covering a period of
at least 12 consecutive months beginning after the last Closing
Date, that satisfies the provisions of Section 11(a) and Rule 158
under the Securities Act.


(h)              
Periodic Reporting Obligations. During the Prospectus
Delivery Period, the Company will duly file, on a timely basis,
with the Commission and the Trading Market all reports and
documents required to be filed under the Exchange Act within the
time periods and in the manner required by the Exchange Act.


(i)                
Additional Documents. The Company will enter into any
subscription, purchase or other customary agreements as the
Placement Agent or the Investors deem necessary or appropriate to
consummate the Offering, all of which will be in form and substance
reasonably acceptable to the Placement Agent and the Investors. The
Company agrees that the Placement Agent may rely upon, and each is
a third party beneficiary of, the representations and warranties,
and applicable covenants, set forth in any such purchase,
subscription or other agreement with Investors in the Offering.


(j)                
No Manipulation of Price.  The Company will not
take, directly or indirectly, any action designed to cause or
result in, or that has constituted or might reasonably be expected
to constitute, the stabilization or manipulation of the price of
any securities of the Company.


(k)              
Acknowledgment. The Company acknowledges that any advice
given by the Placement Agent to the Company is solely for the
benefit and use of the Board of Directors of the Company and may
not be used, reproduced, disseminated, quoted or referred to,
without the Placement Agent's prior written consent.


(l)                
Announcement of Offering. The Company acknowledges and
agrees that the Placement Agent may, subsequent to the Closing,
make public its involvement with the Offering.


(m)            
Reliance on Others. The Company confirms that it will rely
on its own counsel and accountants for legal and accounting
advice.


(n)              
Research Matters. By entering into this
Agreement, the Placement Agent does not provide any promise, either
explicitly or implicitly, of favorable or continued research
coverage of the Company and the Company hereby acknowledges and
agrees that the Placement Agent’s selection as a placement
agent for the Offering was in no way conditioned, explicitly or
implicitly, on the Placement Agent providing favorable or any
research coverage of the Company. In accordance with FINRA Rule
2711(e), the parties acknowledge and agree that the Placement Agent
has not directly or indirectly offered favorable research, a
specific rating or a specific price target, or threatened to change
research, a rating or a price target, to the Company or inducement
for the receipt of business or compensation.


Section 5.                
Conditions of the Obligations of the Placement Agent. The
obligations of the Placement Agent hereunder shall be subject to
the accuracy of the representations and warranties on the part of
the Company set forth in Section 2 hereof, in each case as of the
date hereof and as of each Closing Date as though then made, to the
timely performance by each of the Company of its covenants and
other obligations hereunder on and as of such dates, and to each of
the following additional conditions:


(a)               
Accountants’ Comfort Letter. On the date hereof, the
Placement Agent shall have received, and the Company shall have
caused to be delivered to the Placement Agent, a letter from
___________ (the independent registered public accounting firm of
the Company), addressed to the Placement Agent, dated as of the
date hereof, in form and substance satisfactory to the Placement
Agent. The letter shall not disclose any change in the condition
(financial or other), earnings, operations, business or prospects
of the Company from that set forth in the Incorporated Documents or
the applicable Prospectus Supplement, which, in the Placement
Agent's sole judgment, is material and adverse and that makes it,
in the Placement Agent's sole judgment, impracticable or
inadvisable to proceed with the Offering of the Securities as
contemplated by such Prospectus Supplement.


(b)              
Compliance with Registration Requirements; No Stop Order; No
Objection from the FINRA. Each Prospectus Supplement (in
accordance with Rule 424(b)) and “free writing
prospectus” (as defined in Rule 405 of the Securities Act),
if any, shall have been duly filed with the Commission, as
appropriate; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued
and no proceeding for that purpose shall have been initiated or
threatened by the Commission; no order preventing or suspending the
use of any Prospectus Supplement shall have been issued and no
proceeding for that purpose shall have been initiated or threatened
by the Commission; no order having the effect of ceasing or
suspending the distribution of the Securities or any other
securities of the Company shall have been issued by any securities
commission, securities regulatory authority or stock exchange and
no proceedings for that purpose shall have been instituted or shall
be pending or, to the knowledge of the Company, contemplated by any
securities commission, securities regulatory authority or stock
exchange; all requests for additional information on the part of
the Commission shall have been complied with; and the FINRA shall
have raised no objection to the fairness and reasonableness of the
placement terms and arrangements.


(c)               
Corporate Proceedings. All corporate proceedings and other
legal matters in connection with this Agreement, the Registration
Statement and each Prospectus Supplement, and the registration,
sale and delivery of the Securities, shall have been completed or
resolved in a manner reasonably satisfactory to the Placement
Agent's counsel, and such counsel shall have been furnished with
such papers and information as it may reasonably have requested to
enable such counsel to pass upon the matters referred to in this
Section 5.


(d)              
No Material Adverse Change. Subsequent to the execution and
delivery of this Agreement and prior to each Closing Date, in the
Placement Agent's sole judgment after consultation with the
Company, there shall not have occurred any Material Adverse Change
or Material Adverse Effect.


(e)               
Opinion of Counsel for the Company. The Placement Agent
shall have received on each Closing Date the favorable opinion of
US legal counsel to the Company, dated as of such Closing Date,
including, without limitation, a negative assurance letter
addressed to the Placement Agent and in form and substance
satisfactory to the Placement Agent.


(f)               
Officers’ Certificate. The Placement Agent shall have
received on each Closing Date a certificate of the Company, dated
as of such Closing Date, signed by the Chief Executive Officer and
Chief Financial Officer of the Company, to the effect that, and the
Placement Agent shall be satisfied that, the signers of such
certificate have reviewed the Registration Statement, any
Prospectus Supplement, and this Agreement and to the further effect
that:


(i)                
The representations and warranties of the Company in this Agreement
are true and correct, as if made on and as of such Closing Date,
and the Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied at or
prior to such Closing Date;


(ii)              
No stop order suspending the effectiveness of the Registration
Statement or the use of the Base Prospectus or any Prospectus
Supplement has been issued and no proceedings for that purpose have
been instituted or are pending or, to the Company’s
knowledge, threatened under the Securities Act; no order having the
effect of ceasing or suspending the distribution of the Securities
or any other securities of the Company has been issued by any
securities commission, securities regulatory authority or stock
exchange in the United States and no proceedings for that purpose
have been instituted or are pending or, to the knowledge of the
Company, contemplated by any securities commission, securities
regulatory authority or stock exchange in the United States;


(iii)            
When the Registration Statement became effective, at the time of
sale, and at all times subsequent thereto up to the delivery of
such certificate, the Registration Statement contained all material
information required to be included therein by the Securities Act
and the applicable rules and regulations of the Commission
thereunder, and in all material respects conformed to the
requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder, and the Registration
Statement did not include any untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading (provided,
however, that the preceding representations and warranties
contained in this paragraph (iii) shall not apply to any statements
or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by the Placement
Agent expressly for use therein) and, since the effective date of
the Registration Statement, there has occurred no event required by
the Securities Act and the rules and regulations of the Commission
thereunder to be set forth in the Prospectus Supplement which has
not been so set forth.


(iv)            
Subsequent to the respective dates as of which information is given
in the Registration Statement, the Incorporated Documents and any
Prospectus Supplement, there has not been: (a) any Material Adverse
Change; (b) any transaction that is material to the Company and the
Subsidiaries taken as a whole, except transactions entered into in
the ordinary course of business; (c) any obligation, direct or
contingent, that is material to the Company and the Subsidiaries
taken as a whole, incurred by the Company or any Subsidiary, except
obligations incurred in the ordinary course of business; (d) any
material change in the capital stock (except changes thereto
resulting from the exercise of outstanding stock options or
warrants) or outstanding indebtedness of the Company or any
Subsidiary; (e) any dividend or distribution of any kind declared,
paid or made on the capital stock of the Company; or (f) any loss
or damage (whether or not insured) to the property of the Company
or any Subsidiary which has been sustained or will have been
sustained which has a Material Adverse Effect.


(g)               
Bring-down Comfort Letter.  On each Closing
Date, the Placement Agent shall have received from
_____________, or such other independent registered public
accounting firm of the Company, a letter dated as of such Closing
Date, in form and substance satisfactory to the Placement
Agent, to the effect that they reaffirm the statements made in the
letter furnished pursuant to subsection (a) of this
Section 5, except that the specified date referred to therein
for the carrying out of procedures shall be no more than three
business days prior to such Closing Date.


(h)              
Stock Exchange Listing. The Common Stock shall be registered
under the Exchange Act and shall be listed on the Trading Market,
and the Company shall not have taken any action designed to
terminate, or likely to have the effect of terminating, the
registration of the Common Stock under the Exchange Act or
delisting or suspending from trading the Common Stock from the
Trading Market, nor shall the Company have received any information
suggesting that the Commission or the Trading Market is
contemplating terminating such registration or listing.


(i)                
Additional Documents. On or before each Closing Date, the
Placement Agent and counsel for the Placement Agent shall have
received such information and documents as they may reasonably
require for the purposes of enabling them to pass upon the issuance
and sale of the Securities as contemplated herein, or in order to
evidence the accuracy of any of the representations and warranties,
or the satisfaction of any of the conditions or agreements, herein
contained.


If any condition specified in this Section 5 is not satisfied when
and as required to be satisfied, this Agreement may be terminated
by the Placement Agent by notice to the Company at any time on or
prior to a Closing Date, which termination shall be without
liability on the part of any party to any other party, except that
Section 6 (Payment of Expenses), Section 7 (Indemnification and
Contribution) and Section 8 (Representations and Indemnities to
Survive Delivery) shall at all times be effective and shall survive
such termination.


Section 6.                
Payment of Expenses. The Company agrees to pay all costs, fees
and expenses incurred by the Company in connection with the
performance of its obligations hereunder and in connection with the
transactions contemplated hereby, including, without limitation:
(i) all expenses incident to the issuance, delivery and
qualification of the Securities (including all printing and
engraving costs); (ii) all fees and expenses of the registrar and
transfer agent of the Common Stock; (iii) all necessary issue,
transfer and other stamp taxes in connection with the issuance and
sale of the Securities; (iv) all fees and expenses of the
Company’s counsel, independent public or certified public
accountants and other advisors; (v) all costs and expenses incurred
in connection with the preparation, printing, filing, shipping and
distribution of the Registration Statement (including financial
statements, exhibits, schedules, consents and certificates of
experts), the Base Prospectus and each Prospectus Supplement, and
all amendments and supplements thereto, and this Agreement; (vi)
all filing fees, reasonable attorneys’ fees and expenses
incurred by the Company or the Placement Agent in connection with
qualifying or registering (or obtaining exemptions from the
qualification or registration of) all or any part of the Securities
for offer and sale under the state securities or blue sky laws or
the securities laws of any other country, and, if requested by the
Placement Agent, preparing and printing a “Blue Sky
Survey,” an “International Blue Sky Survey” or
other memorandum, and any supplements thereto, advising the
Placement Agent of such qualifications, registrations and
exemptions; (vii) if applicable, the filing fees incident to the
review and approval by the FINRA of the Placement Agent's
participation in the offering and distribution of the Securities;
(viii) the fees and expenses associated with including the
Securities on the Trading Market; (ix) all costs and expenses
incident to the travel and accommodation of the Company’s and
the Placement Agent's employees on the “roadshow,” if
any; and (x) all other fees, costs and expenses referred to in Part
II of the Registration Statement.


Section 7.                
Indemnification and Contribution.


(a) The Company agrees to indemnify and hold harmless the Placement
Agent, its affiliates and each person controlling the Placement
Agent (within the meaning of Section 15 of the Securities Act), and
the directors, officers, agents and employees of the Placement
Agent, its affiliates and each such controlling person (the
Placement Agent, and each such entity or person, an
“Indemnified Person”) from and against any
losses, claims, damages, judgments, assessments, costs and other
liabilities (collectively, the “Liabilities”),
and shall reimburse each Indemnified Person for all fees and
expenses (including the reasonable fees and expenses of one counsel
for all Indemnified Persons, except as otherwise expressly provided
herein) (collectively, the “Expenses”) as they
are incurred by an Indemnified Person in investigating, preparing,
pursuing or defending any Actions, whether or not any Indemnified
Person is a party thereto, (i) caused by, or arising out of or in
connection with, any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement, Base
Prospectus or any Prospectus Supplement or by any omission or
alleged omission to state therein a material fact necessary to make
the statements therein, in light of the circumstances under which
they were made, not misleading (other than untrue statements or
alleged untrue statements in, or omissions or alleged omissions
from, information relating to an Indemnified Person furnished in
writing by or on behalf of such Indemnified Person expressly for
use in the respective documents) or (ii) caused by, or arising out
of or in connection with any material breach in the representations
and warranties of the Company contained herein; provided,
however, that the Company shall not be responsible for any
Liabilities or Expenses of any Indemnified Person that are finally
judicially determined to have resulted solely from such Indemnified
Person’s (x) gross negligence or willful misconduct in
connection with any of the advice, actions, inactions or services
referred to above or (y) use of any offering materials or
information concerning the Company in connection with the offer or
sale of the Securities in the Offering which were not authorized
for such use by the Company and which use constitutes gross
negligence or willful misconduct. The Company also agrees to
reimburse each Indemnified Person for all Expenses as they are
incurred in connection with enforcing such Indemnified Person's
rights under this Agreement.


 


(b)	Upon receipt by an Indemnified Person of actual notice of an
Action against such Indemnified Person with respect to which
indemnity may be sought under this Agreement, such Indemnified
Person shall promptly notify the Company in writing; provided that
failure by any Indemnified Person so to notify the Company shall
not relieve the Company from any liability which the Company may
have on account of this indemnity or otherwise to such Indemnified
Person, except to the extent the Company shall have been prejudiced
by such failure. The Company shall, if requested by the Placement
Agent, assume the defense of any such Action including the
employment of counsel reasonably satisfactory to the Placement
Agent, which counsel may also be counsel to the Company. Any
Indemnified Person shall have the right to employ separate counsel
in any such action and participate in the defense thereof, but the
fees and expenses of such counsel shall be at the expense of such
Indemnified Person unless: (i) the Company has failed promptly to
assume the defense and employ counsel or (ii) the named parties to
any such Action (including any impeded parties) include such
Indemnified Person and the Company, and such Indemnified Person
shall have been advised in the reasonable opinion of counsel that
there is an actual conflict of interest that prevents the counsel
selected by the Company from representing both the Company (or
another client of such counsel) and any Indemnified Person;
provided that the Company shall not in such event be responsible
hereunder for the fees and expenses of more than one firm of
separate counsel for all Indemnified Persons in connection with any
Action or related Actions, in addition to any local counsel. The
Company shall not be liable for any settlement of any Action
effected without its written consent (which shall not be
unreasonably withheld). In addition, the Company shall not, without
the prior written consent of the Placement Agent (which shall not
be unreasonably withheld), settle, compromise or consent to the
entry of any judgment in or otherwise seek to terminate any pending
or threatened Action in respect of which indemnification or
contribution may be sought hereunder (whether or not such
Indemnified Person is a party thereto) unless such settlement,
compromise, consent or termination includes an unconditional
release of each Indemnified Person from all Liabilities arising out
of such Action for which indemnification or contribution may be
sought hereunder. The indemnification required hereby shall be made
by periodic payments of the amount thereof during the course of the
investigation or defense, as such expense, loss, damage or
liability is incurred and is due and payable.


 


(c)	In the event that the foregoing indemnity is unavailable to an
Indemnified Person other than in accordance with this Agreement,
the Company shall contribute to the Liabilities and Expenses paid
or payable by such Indemnified Person in such proportion as is
appropriate to reflect (i) the relative benefits to the Company, on
the one hand, and to the Placement Agent and any other Indemnified
Person, on the other hand, of the matters contemplated by this
Agreement or (ii) if the allocation provided by the immediately
preceding clause is not permitted by applicable law, not only such
relative benefits but also the relative fault of the Company, on
the one hand, and the Placement Agent and any other Indemnified
Person, on the other hand, in connection with the matters as to
which such Liabilities or Expenses relate, as well as any other
relevant equitable considerations; provided that in no event shall
the Company contribute less than the amount necessary to ensure
that all Indemnified Persons, in the aggregate, are not liable for
any Liabilities and Expenses in excess of the amount of fees
actually received by the Placement Agent pursuant to this
Agreement. For purposes of this paragraph, the relative benefits to
the Company, on the one hand, and to the Placement Agent on the
other hand, of the matters contemplated by this Agreement shall be
deemed to be in the same proportion as (a) the total value paid or
contemplated to be paid to or received or contemplated to be
received by the Company in the transaction or transactions that are
within the scope of this Agreement, whether or not any such
transaction is consummated, bears to (b) the fees paid to the
Placement Agent under this Agreement. Notwithstanding the above, no
person guilty of fraudulent misrepresentation within the meaning of
Section 11(f) of the Securities Act, as amended, shall be entitled
to contribution from a party who was not guilty of fraudulent
misrepresentation.


 


(d)	The Company also agrees that no Indemnified Person shall have
any liability (whether direct or indirect, in contract or tort or
otherwise) to the Company for or in connection with advice or
services rendered or to be rendered by any Indemnified Person
pursuant to this Agreement, the transactions contemplated thereby
or any Indemnified Person's actions or inactions in connection with
any such advice, services or transactions except for Liabilities
(and related Expenses) of the Company that are finally judicially
determined to have resulted solely from such Indemnified Person's
gross negligence or willful misconduct in connection with any such
advice, actions, inactions or services.


 


(e)	The reimbursement, indemnity and contribution obligations of
the Company set forth herein shall apply to any modification of
this Agreement and shall remain in full force and effect regardless
of any termination of, or the completion of any Indemnified
Person's services under or in connection with, this Agreement.


 


Section 8.                
Representations and Indemnities to Survive Delivery. The
respective indemnities, agreements, representations, warranties and
other statements of the Company or any person controlling the
Company, of its officers, and of the Placement Agent set forth in
or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of the
Placement Agent, the Company, or any of its or their partners,
officers or directors or any controlling person, as the case may
be, and will survive delivery of and payment for the Securities
sold hereunder and any termination of this Agreement. A successor
to a Placement Agent, or to the Company, its directors or officers
or any person controlling the Company, shall be entitled to the
benefits of the indemnity, contribution and reimbursement
agreements contained in this Agreement.


Section 9.                
Notices. All communications hereunder shall be in writing and
shall be mailed, hand delivered or telecopied and confirmed to the
parties hereto as follows:


If to the Placement Agent to the address set forth above,
attention: President, facsimile: ___________


 


With a copy to:


 


Ellenoff Grossman & Schole LLP


1345 Avenue of the Americas, 11th Floor


New York, New York 10105


Facsimile: (212) 401-4741


Attention: Robert Charron


 


If to the Company:


 


Guided Therapeutics


5835 Peachtree Corners East, Suite D,


Norcross, GA 30092


Facsimile: _______________


Attention: Gene S. Cartwright


 


With a copy to:


 


Jones Day


1420 Peachtree St. N.E.


STE 800


Atlanta, GA 30309


Facsimile: (404) 581-8330


Attention: Heith D. Rodman


 


Any party hereto may change the address for receipt of
communications by giving written notice to the others.


Section 10.            
Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto, and to the benefit of the
employees, officers and directors and controlling persons referred
to in Section 7 hereof, and to their respective successors, and
personal representative, and no other person will have any right or
obligation hereunder.


Section 11.            
Partial Unenforceability. The invalidity or unenforceability of
any section, paragraph or provision of this Agreement shall not
affect the validity or enforceability of any other section,
paragraph or provision hereof. If any Section, paragraph or
provision of this Agreement is for any reason determined to be
invalid or unenforceable, there shall be deemed to be made such
minor changes (and only such minor changes) as are necessary to
make it valid and enforceable.


Section 12.            
Governing Law Provisions. This Agreement shall be deemed to
have been made and delivered in Atlanta, Georgia and both this
engagement letter and the transactions contemplated hereby shall be
governed as to validity, interpretation, construction, effect and
in all other respects by the internal laws of the State of Georgia,
without regard to the conflict of laws principles thereof. Each of
the Placement Agent and the Company: (i) agrees that any legal
suit, action or proceeding arising out of or relating to this
engagement letter and/or the transactions contemplated hereby shall
be instituted exclusively in a court of competent jurisdiction in
Dawson County, Georgia, (ii) waives any objection which it may have
or hereafter to the venue of any such suit, action or proceeding,
and (iii) irrevocably consents to the jurisdiction of a court of
competent jurisdiction in Dawson County, Georgia in any such suit,
action or proceeding. Each of the Placement Agent and the Company
further agrees to accept and acknowledge service of any and all
process which may be served in any such suit, action or proceeding
in a court of competent jurisdiction in Dawson County, Georgia and
agrees that service of process upon the Company mailed by certified
mail to the Company’s address shall be deemed in every
respect effective service of process upon the Company, in any such
suit, action or proceeding, and service of process upon the
Placement Agent mailed by certified mail to the Placement
Agent’s address shall be deemed in every respect effective
service process upon the Placement Agent, in any such suit, action
or proceeding. Notwithstanding any provision of this engagement
letter to the contrary, the Company agrees that neither the
Placement Agent nor its affiliates, and the respective officers,
directors, employees, agents and representatives of the Placement
Agent, its affiliates and each other person, if any, controlling
the Placement Agent or any of its affiliates, shall have any
liability (whether direct or indirect, in contract or tort or
otherwise) to the Company for or in connection with the engagement
and transaction described herein except for any such liability for
losses, claims, damages or liabilities incurred by us that are
finally judicially determined to have resulted from the willful
misconduct or gross negligence of such individuals or entities. If
either party shall commence an action or proceeding to enforce any
provision of this Agreement, then the prevailing party in such
action or proceeding shall be reimbursed by the other party for its
reasonable attorney’s fees and other costs and expenses
incurred with the investigation, preparation and prosecution of
such action or proceeding.


Section 13.            
General Provisions.


(a)	This Agreement constitutes the entire agreement of the parties
to this Agreement and supersedes all prior written or oral and all
contemporaneous oral agreements, understandings and negotiations
with respect to the subject matter hereof. Notwithstanding anything
herein to the contrary, the Engagement Agreement, dated ________
(“Engagement Agreement”), between the Company
and the Placement Agent, shall continue to be effective and the
terms therein shall continue to survive and be enforceable by the
Representative in accordance with its terms, provided that, in the
event of a conflict between the terms of the Engagement Agreement
and this Agreement, the terms of this Agreement shall prevail. This
Agreement may be executed in two or more counterparts, each one of
which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument. This
Agreement may not be amended or modified unless in writing by all
of the parties hereto, and no condition herein (express or implied)
may be waived unless waived in writing by each party whom the
condition is meant to benefit. Section headings herein are for the
convenience of the parties only and shall not affect the
construction or interpretation of this Agreement.


(b)	The Company acknowledges that in connection with the offering
of the Securities: (i) the Placement Agent has acted at arms
length, are not agents of, and owe no fiduciary duties to the
Company or any other person, (ii) the Placement Agent owes the
Company only those duties and obligations set forth in this
Agreement and (iii) the Placement Agent may have interests that
differ from those of the Company. The Company waives to the full
extent permitted by applicable law any claims it may have against
the Placement Agent arising from an alleged breach of fiduciary
duty in connection with the offering of the Securities


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If the foregoing is in accordance with your understanding of our
agreement, please sign below whereupon this instrument, along with
all counterparts hereof, shall become a binding agreement in
accordance with its terms.


Very truly yours,


GUIDED THERAPEUTICS,
INC., 


a Delaware corporation


 


 


By:______________________________


Name: Gene S. Cartwright


Title: President and Chief Executive Officer


 


 


The foregoing Placement Agency Agreement is hereby confirmed and
accepted as of the date first above written.


Moody Capital Solutions,
Inc.


 


 


By: 	______________________________


Name:


Title: