Exhibit 10.47


 


SECURITIES PURCHASE AGREEMENT


This Securities Purchase Agreement (this
“Agreement”) is dated as of _____, 2017, between
Guided Therapeutics, Inc., a Delaware corporation (the
“Company”), and each purchaser identified on the
signature pages hereto (each, including its successors and assigns,
a “Purchaser” and collectively, the
“Purchasers”).


WHEREAS, subject to the terms and conditions set forth in this
Agreement and pursuant an effective registration statement under
the Securities Act of 1933, as amended (the “Securities
Act”), the Company desires to issue and sell to each
Purchaser, and each Purchaser, severally and not jointly, desires
to purchase from the Company, securities of the Company as more
fully described in this Agreement.


NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained
in this Agreement, and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the
Company and each Purchaser agree as follows:


ARTICLE I. 


DEFINITIONS


1.1             
Definitions. In addition to
the terms defined elsewhere in this Agreement: (a) capitalized
terms that are not otherwise defined herein have the meanings given
to such terms in the Certificate of Designation (as defined
herein), and (b) the following terms have the meanings set forth in
this Section 1.1:


“Acquiring Person” shall have the meaning
ascribed to such term in Section 4.7.


“Action” shall have the meaning ascribed to such
term in Section 3.1(j).


“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.


“Board of Directors” means the board of
directors of the Company.


“Business Day” means any day except any
Saturday, any Sunday, any day which is a federal legal holiday in
the United States or any day on which banking institutions in the
State of New York are authorized or required by law or other
governmental action to close.


“Certificate of Designation” means the
Certificate of Designation to be filed prior to the Closing by the
Company with the Secretary of State of Delaware, in the form of
Exhibit A attached hereto.


“Closing” means the closing of the purchase and
sale of the Securities pursuant to Section 2.1.


“Closing Date” means the Trading Day on which
all of the Transaction Documents have been executed and delivered
by the applicable parties thereto, and all conditions precedent to
(i) the Purchasers’ obligations to pay the Subscription
Amount and (ii) the Company’s obligations to deliver the
Securities, in each case, have been satisfied or waived, but in no
event later than the third Trading Day following the date
hereof.


“Commission” means the United States Securities
and Exchange Commission.


“Common Stock” means the common stock of the
Company, par value $0.001 per share, and any other class of
securities into which such securities may hereafter be reclassified
or changed.


“Common Stock Equivalents” means any securities
of the Company or the Subsidiaries which would entitle the holder
thereof to acquire at any time Common Stock, including, without
limitation, any debt, preferred stock, right, option, warrant 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.


“Company Counsel” means Jones Day, with offices
located at 1420 Peachtree Street, N.E., Suite 800, Atlanta, Georgia
30309.


“Conversion Price” shall have the meaning
ascribed to such term in the Certificate of Designation.


“Conversion Shares” means, collectively, the
shares of Common Stock issuable upon conversion of the shares of
Preferred Stock in accordance with the terms hereof.


 


“Disclosure Schedules” means the Disclosure
Schedules of the Company delivered concurrently herewith.


 


“EGS” means Ellenoff Grossman & Schole LLP,
with offices located at 1345 Avenue of the Americas, New York, New
York 10105-0302.


“Evaluation Date” shall have the meaning
ascribed to such term in Section 3.1(s).


“Exchange Act” means the Securities Exchange Act
of 1934, as amended, and the rules and regulations promulgated
thereunder.


 


“Exempt Issuance” means the issuance of (a)
shares of Common Stock or options to employees, officers or
directors of the Company pursuant to any stock or option plan duly
adopted for such purpose, by a majority of the non-employee members
of the Board of Directors or a majority of the members of a
committee of non-employee directors established for such purpose
for services rendered to the Company, (b) securities upon the
exercise or exchange of or conversion of any Securities issued
hereunder and/or other securities exercisable or exchangeable for
or convertible into shares of Common Stock issued and outstanding
on the date of this Agreement, provided that such securities have
not been amended since the date of this Agreement to increase the
number of such securities or to decrease the exercise price,
exchange price or conversion price of such securities (other than
in connection with stock splits or combinations) or to extend the
term of such securities, and (c) securities issued pursuant to
acquisitions or strategic transactions approved by a majority of
the disinterested directors of the Company, provided that any such
issuance shall only be to a Person (or to the equityholders of a
Person) which is, itself or through its subsidiaries, an operating
company or an owner of an asset in a business synergistic with the
business of the Company and shall provide to the Company additional
benefits in addition to the investment of funds, but shall not
include a transaction in which the Company is issuing securities
primarily for the purpose of raising capital or to an entity whose
primary business is investing in securities.


“FCPA” means the Foreign Corrupt Practices Act
of 1977, as amended.


“FDA” shall have the meaning ascribed to such
term in Section 3.1(hh).


“FDCA” shall have the meaning ascribed to such
term in Section 3.1(hh).


“GAAP” shall have the meaning ascribed to such
term in Section 3.1(h).


“Indebtedness” shall have the meaning ascribed
to such term in Section 3.1(aa).


“Intellectual Property Rights” shall have the
meaning ascribed to such term in Section 3.1(p).


“Liens” means a lien, charge, pledge, security
interest, encumbrance, right of first refusal, preemptive right or
other restriction.


“Material Adverse Effect” shall have the meaning
assigned to such term in Section 3.1(b).


“Material Permits” shall have the meaning
ascribed to such term in Section 3.1(n).


“Maximum Rate” shall have the meaning ascribed
to such term in Section 5.17.


“Person” 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.


“Pharmaceutical Product” shall have the meaning
ascribed to such term in Section 3.1(hh).


“Placement Agent” means Moody Capital Solutions,
Inc.


“Preferred Stock” means the up to _____ shares
of the Company’s Series D Convertible Preferred Stock issued
hereunder having the rights, preferences and privileges set forth
in the Certificate of Designation, in the form of Exhibit A
hereto.


“Proceeding” means an action, claim, suit,
investigation or proceeding (including, without limitation, an
informal investigation or partial proceeding, such as a
deposition), whether commenced or threatened.


“Prospectus” means the final prospectus filed
for the Registration Statement.


“Prospectus Supplement” means the supplement to
the Prospectus complying with Rule 424(b) of the Securities Act
that is filed with the Commission and delivered by the Company to
each Purchaser at the Closing.


“Purchaser Party” shall have the meaning
ascribed to such term in Section 4.10.


“Registration Statement” means the effective
registration statement with the Commission file No. 333-_________
which registers the sale of the Preferred Stock, Warrants and
Underlying Shares.


“Required Approvals” shall have the meaning
ascribed to such term in Section 3.1(e).


“Required Minimum” means, as of any date, the
maximum aggregate number of shares of Common Stock then issued or
potentially issuable in the future pursuant to the Transaction
Documents, including any Underlying Shares issuable upon exercise
in full of all Warrants or conversion in full of all shares of
Preferred Stock, ignoring any conversion or exercise limits set
forth therein, and that any previously unconverted shares of
Preferred Stock are held until the third anniversary of the Closing
Date.


“Rule 144” means Rule 144 promulgated by the
Commission pursuant to the Securities Act, as such Rule may be
amended or interpreted from time to time, or any similar rule or
regulation hereafter adopted by the Commission having substantially
the same purpose and effect as such Rule.


“Rule 424” means Rule 424 promulgated by the
Commission pursuant to the Securities Act, as such Rule may be
amended or interpreted from time to time, or any similar rule or
regulation hereafter adopted by the Commission having substantially
the same purpose and effect as such Rule.


 


“SEC Reports” shall have the meaning ascribed to
such term in Section 3.1(h).


“Securities” means the Preferred Stock, the
Warrants, the Warrant Shares and the Underlying Shares.


“Securities Act” means the Securities Act of
1933, as amended, and the rules and regulations promulgated
thereunder.


“Short Sales” means all “short
sales” as defined in Rule 200 of Regulation SHO under the
Exchange Act (but shall not be deemed to include locating and/or
borrowing shares of Common Stock). 


“Stated Value” means $1,000 per share of
Preferred Stock.


“Subscription Amount” means, as to each
Purchaser, the aggregate amount to be paid for the Preferred Stock
and Warrants purchased hereunder as specified below such
Purchaser’s name on the signature page of this Agreement and
next to the heading “Subscription Amount,” in United
States dollars and in immediately available funds.


“Subsidiary” means any subsidiary of the Company
as set forth in the SEC Reports and shall, where applicable, also
include any direct or indirect subsidiary of the Company formed or
acquired after the date hereof.


“Trading Day” means a day on which the principal
Trading Market is open for trading.


“Trading Market” means any of the following
markets or exchanges on which the Common Stock is listed or quoted
for trading on the date in question: the NYSE MKT, the Nasdaq
Capital Market, the Nasdaq Global Market, the Nasdaq Global Select
Market, the New York Stock Exchange, OTCQB or OTCQX (or any
successors to any of the foregoing).


“Transaction Documents” means this Agreement,
the Certificate of Designation, the Warrants, all exhibits and
schedules thereto and hereto and any other documents or agreements
executed in connection with the transactions contemplated
hereunder.


“Transfer Agent” means Computershare Trust
Company, N.A , the current transfer agent of the Company, with a
mailing address of 250 Royall Street, Canton, Massachusetts 02021
and a facsimile number of _______________, and any successor
transfer agent of the Company.


“Underlying Shares” means the shares of Common
Stock issued and issuable upon conversion or redemption of the
Preferred Stock and upon exercise of the Warrants and issued and
issuable in lieu of the cash payment of dividends on the Preferred
Stock in accordance with the terms of the Certificate of
Designation.


“Variable Rate Transaction” shall have the
meaning ascribed to such term in Section 4.13(b).


“VWAP” means, for any date, the price determined
by the first of the following clauses that applies: (a) if the
Common Stock is then listed or quoted on a Trading Market, the
daily volume weighted average price of the Common Stock for such
date (or the nearest preceding date) on the Trading Market on which
the Common Stock is then listed or quoted as reported by Bloomberg
L.P. (based on a Trading Day from 9:30 a.m. (New York City time) to
4:02 p.m. (New York City time)), (b)  if OTCQB or OTCQX is not
a Trading Market, the volume weighted average price of the Common
Stock for such date (or the nearest preceding date) on OTCQB or
OTCQX as applicable, (c) if the Common Stock is not then listed or
quoted for trading on OTCQB or OTCQX and if prices for the Common
Stock are then reported in the “Pink Sheets” published
by OTC Markets Group, Inc. (or a similar organization or agency
succeeding to its functions of reporting prices), the most recent
bid price per share of the Common Stock so reported, or (d) in
all other cases, the fair market value of a share of Common Stock
as determined by an independent appraiser selected in good faith by
the Purchasers of a majority in interest of the Securities then
outstanding and reasonably acceptable to the Company, the fees and
expenses of which shall be paid by the Company.


“Warrants” means, collectively, the Common Stock
purchase warrants delivered to the Purchasers at the Closing in
accordance with Section 2.2(a) hereof, which Warrants shall be
exercisable immediately and have a term of exercise equal to ___
years, in the form of Exhibit C attached hereto.


“Warrant Shares” means the shares of Common
Stock issuable upon exercise of the Warrants.


ARTICLE II. 


PURCHASE AND SALE


2.1             
Closing. On the Closing Date,
upon the terms and subject to the conditions set forth herein,
substantially concurrent with the execution and delivery of this
Agreement by the parties hereto, the Company agrees to sell, and
the Purchasers, severally and not jointly, agree to purchase, up to
an aggregate of $_________ of shares of Preferred Stock with an
aggregate Stated Value for each Purchaser equal to such
Purchaser’s Subscription Amount as set forth on the signature
page hereto executed by such Purchaser, and Warrants as determined
by pursuant to Section 2.2(a). The aggregate number of shares of
Preferred Stock sold hereunder shall be up to ______. Each
Purchaser shall deliver to the Company, via wire transfer or a
certified check, immediately available funds equal to its
Subscription Amount, and the Company shall deliver to each
Purchaser its respective shares of Preferred Stock and Warrants, as
determined pursuant to Section 2.2(a), and the Company and each
Purchaser shall deliver the other items set forth in Section 2.2
deliverable at the Closing. Upon satisfaction of the covenants and
conditions set forth in Sections 2.2 and 2.3, the Closing shall
occur at the offices of EGS or such other location as the parties
shall mutually agree. The Company covenants that, if the Purchaser
delivers a Notice of Conversion (as defined in the Certificate of
Designation) to convert any shares of Preferred Stock between the
date hereof and the Closing Date, the Company shall deliver
Conversion Shares to the Purchaser on the Closing Date in
connection with such Notice of Conversion.


2.2             
Deliveries.


(a)               
On or prior to the Closing Date, the
Company shall deliver or cause to be delivered to each Purchaser
the following:

	 
	(i)
	this
Agreement duly executed by the Company;





(ii)              
a reliance letter from Company
Counsel, in a form reasonable satisfactory to the Purchaser,
permitting Purchaser to rely on the legal opinion of Company
Counsel delivered to the Placement Agent in accordance with the
sale of the Preferred Stock and Warrants;


(iii)            
a certificate evidencing a number of
shares of Preferred Stock equal to such Purchaser’s
Subscription Amount divided by the Stated Value, registered in the
name of such Purchaser and evidence of the filing and acceptance of
the Certificate of Designation from the Secretary of State of
Delaware;


(iv)            
a Warrant registered in the name of
such Purchaser to purchase up to a number of shares of Common Stock
equal to ___% of such Purchaser’s Conversion Shares on the
date hereof, with an exercise price equal to
$_____,subject to adjustment
therein;


(v)              
the Company shall have provided each
Purchaser with the Company’s wire instructions, on Company
letterhead and executed by the Chief Executive Officer or Chief
Financial Officer; and


(vi)            
the Prospectus and Prospectus
Supplement (which may be delivered in accordance with Rule 172
under the Securities Act).


(b)              
On or prior to the Closing Date, each
Purchaser shall deliver or cause to be delivered to the Company,
the following:

	 
	(i)
	this
Agreement duly executed by such Purchaser; and





(ii)              
such Purchaser’s Subscription
Amount by wire transfer to the account specified in writing by the
Company.


2.3             
Closing Conditions.


(a)                  
The obligations of the Company
hereunder in connection with the Closing are subject to the
following conditions being met:


(i)                
the accuracy in all material respects
(or, to the extent representations or warranties are qualified by
materiality or Material Adverse Effect, in all respects) on the
Closing Date of the representations and warranties of the
Purchasers contained herein (unless as of a specific date therein
in which case they shall be accurate as of such date);


(ii)              
all obligations, covenants and
agreements of each Purchaser required to be performed at or prior
to the Closing Date shall have been performed; and


(iii)            
the delivery by each Purchaser of the
items set forth in Section 2.2(b) of this Agreement.


(b)                 
The respective obligations of the
Purchasers hereunder in connection with the Closing are subject to
the following conditions being met:


(i)                
the accuracy in all material respects
(or, to the extent representations or warranties are qualified by
materiality or Material Adverse Effect, in all respects) when made
and on the Closing Date of the representations and warranties of
the Company contained herein (unless as of a specific date therein
in which case they shall be accurate as of such date);


(ii)              
all obligations, covenants and
agreements of the Company required to be performed at or prior to
the Closing Date shall have been performed;


(iii)            
the delivery by the Company of the
items set forth in Section 2.2(a) of this Agreement;


(iv)            
there shall have been no Material
Adverse Effect with respect to the Company since the date hereof;
and


(v)              
from the date hereof to the Closing
Date, trading in the Common Stock shall not have been suspended by
the Commission or the Company’s principal Trading Market,
and, at any time prior to the Closing Date, trading in securities
generally as reported by Bloomberg L.P. shall not have been
suspended or limited, or minimum prices shall not have been
established on securities whose trades are reported by such
service, or on any Trading Market, nor shall a banking moratorium
have been declared either by the United States or New York State
authorities nor shall there have occurred any material outbreak or
escalation of hostilities or other national or international
calamity of such magnitude in its effect on, or any material
adverse change in, any financial market which, in each case, in the
reasonable judgment of such Purchaser, makes it impracticable or
inadvisable to purchase the Securities at the Closing.


ARTICLE III. 


REPRESENTATIONS AND WARRANTIES


3.1             
Representations and Warranties of
the Company. Except as set forth in the SEC Reports or
Disclosure Schedules attached hereto, which shall qualify any
representations or warranties of the Company otherwise made herein,
the Company hereby makes the following representations and
warranties to each Purchaser:


(a)               
Subsidiaries. All of the
direct and indirect subsidiaries of the Company 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, 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. If the Company has
no subsidiaries, all other references to the Subsidiaries or any of
them in the Transaction Documents shall be disregarded.


(b)              
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 any Transaction Document, (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 any Transaction Document
(any of (i), (ii) or (iii), a “Material Adverse
Effect”) and no 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.


(c)               
Authorization; Enforcement.
The Company has the requisite corporate power and authority to
enter into and to consummate the transactions contemplated by this
Agreement and each of the other Transaction Documents and otherwise
to carry out its obligations hereunder and thereunder. The
execution and delivery of this Agreement and each of the other
Transaction Documents by the Company and the consummation by it of
the transactions contemplated hereby and thereby have been duly
authorized by all necessary action on the part of the Company and
no further action is required by the Company, the Board of
Directors or the Company’s stockholders in connection
herewith or therewith other than in connection with the Required
Approvals. This Agreement and each other Transaction Document to
which it is a party has been (or upon delivery will have been) duly
executed by the Company and, when delivered in accordance with the
terms hereof and thereof, 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.


(d)              
No Conflicts. The execution,
delivery and performance by the Company of this Agreement and the
other Transaction Documents to which it is a party, the issuance
and sale of the Securities and the consummation by it of the
transactions contemplated hereby and thereby 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, (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.


(e)               
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 the
Transaction Documents, 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 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 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”).


(f)               
Issuance of the Securities;
Registration. The Securities are duly authorized and, when
issued and paid for in accordance with the applicable Transaction
Documents, will be duly and validly issued, fully paid and
nonassessable, free and clear of all Liens imposed by the Company.
The Underlying Shares, when issued in accordance with the terms of
the Transaction Documents, 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 a
number of shares of Common Stock for issuance of the Underlying
Shares at least equal to the Required Minimum on the date hereof.
The Company has prepared and filed the Registration Statement in
conformity with the requirements of the Securities Act, which
became effective on ____, 2017 (the “Effective
Date”), including the Prospectus, and such amendments and
supplements thereto as may have been required to the date of this
Agreement. The Registration Statement is effective under the
Securities Act and no stop order preventing or suspending the
effectiveness of the Registration Statement or suspending or
preventing the use of the Prospectus has been issued by the
Commission and no proceedings for that purpose have been instituted
or, to the knowledge of the Company, are threatened by the
Commission. The Company, if required by the rules and regulations
of the Commission, shall file the Prospectus with the Commission
pursuant to Rule 424(b). At the time the Registration Statement and
any amendments thereto became effective, at the date of this
Agreement and at the Closing Date, the Registration Statement and
any amendments thereto conformed and will conform in all material
respects to the requirements of the Securities Act and did not and
will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary
to make the statements therein not misleading; and the Prospectus
and any amendments or supplements thereto, at time the Prospectus
or any amendment or supplement thereto was issued and at the
Closing Date, conformed and will conform in all material respects
to the requirements of the Securities Act and did not and will not
contain an 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.


(g)              
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 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 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 duly
authorized, 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.


(h)              
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.


(i)                
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 this
Agreement, 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, 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.


(j)                
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 the
Transaction Documents 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.


(k)              
Labor Relations. No 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. To the knowledge of the Company, no executive officer of the
Company of any Subsidiary, 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.


(l)                
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 other 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.


(m)            
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.


(n)              
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.


(o)              
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 for (i) those that are not reasonably
likely to result in a Material Adverse Effect, (ii) 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 (iii) 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.


(p)              
Intellectual Property. 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
as described in the SEC Reports as necessary or required for use in
connection with their respective businesses 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 written notice of a claim or
otherwise has any knowledge that the Intellectual Property Rights
violate or infringe upon the rights of any Person, except as could
not have or reasonably be expected to 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.


(q)              
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 at least
equal to the aggregate Subscription Amount. 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.


(r)                
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.


(s)               
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 disclosure controls and procedures of the
Company and the Subsidiaries as of the end of the period covered by
the 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.


(t)                
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 or any
Subsidiary to any broker, financial advisor or consultant, finder,
placement agent, investment banker, bank or other Person with
respect to the transactions contemplated by the Transaction
Documents. The Purchasers 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 the
Transaction Documents.


(u)              
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.


(v)              
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.


(w)            
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.


(x)              
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 Purchasers as a result of the Purchasers and the
Company fulfilling their obligations or exercising their rights
under the Transaction Documents, including without limitation as a
result of the Company’s issuance of the Securities and the
Purchasers’ ownership of the Securities.


(y)              
Disclosure. Except with
respect to the material terms and conditions of the transactions
contemplated by the Transaction Documents, the Company confirms
that neither it nor any other Person acting on its behalf has
provided any of the Purchasers 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 Purchasers 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
Purchasers regarding the Company and its Subsidiaries, their
respective businesses and the transactions contemplated hereby,
including the Disclosure Schedules to this Agreement, 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. The Company acknowledges and
agrees that no Purchaser makes or has made any representations or
warranties with respect to the transactions contemplated hereby
other than those specifically set forth in Section 3.2
hereof.


(z)               
No Integrated Offering.
Assuming the accuracy of the Purchasers’ representations and
warranties set forth in Section 3.2, 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. 


(aa)           
Solvency. Based on the
consolidated financial condition of the Company as of the 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 the
Closing Date. The SEC Reports set forth as of the date thereof 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
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.


(bb)          
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 each (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.


(cc)           
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
FCPA.


(dd)         
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.


(ee)           
Acknowledgment Regarding
Purchasers’ Purchase of Securities. The Company
acknowledges and agrees that each of the Purchasers is acting
solely in the capacity of an arm’s length purchaser with
respect to the Transaction Documents and the transactions
contemplated thereby. The Company further acknowledges that no
Purchaser is acting as a financial advisor or fiduciary of the
Company (or in any similar capacity) with respect to the
Transaction Documents and the transactions contemplated thereby and
any advice given by any Purchaser or any of their respective
representatives or agents in connection with the Transaction
Documents and the transactions contemplated thereby is merely
incidental to the Purchasers’ purchase of the Securities. The
Company further represents to each Purchaser that the
Company’s decision to enter into this Agreement and the other
Transaction Documents has been based solely on the independent
evaluation of the transactions contemplated hereby by the Company
and its representatives.


(ff)            
Acknowledgment Regarding
Purchaser’s Trading Activity. Anything in this Agreement
or elsewhere herein to the contrary notwithstanding (except for
Sections 3.2(f) and 4.15 hereof), it is understood and acknowledged
by the Company that: (i) none of the Purchasers has been asked by
the Company to agree, nor has any Purchaser agreed, to desist from
purchasing or selling, long and/or short, securities of the
Company, or “derivative” securities based on securities
issued by the Company or to hold the Securities for any specified
term, (ii) past or future open market or other transactions by any
Purchaser, specifically including, without limitation, Short Sales
or “derivative” transactions, before or after the
closing of this or future private placement transactions, may
negatively impact the market price of the Company’s
publicly-traded securities, (iii) any Purchaser, and
counter-parties in “derivative” transactions to which
any such Purchaser is a party, directly or indirectly, may
presently have a “short” position in the Common Stock
and (iv) each Purchaser shall not be deemed to have any affiliation
with or control over any arm’s length counter-party in any
“derivative” transaction. The Company further understands and acknowledges
that (y) one or more Purchasers may engage in hedging activities at
various times during the period that the Securities are
outstanding, including, without limitation, during the periods that
the value of the Underlying Shares deliverable with respect to
Securities are being determined, and (z) such hedging activities
(if any) could reduce the value of the existing stockholders'
equity interests in the Company at and after the time that the
hedging activities are being conducted.  The Company
acknowledges that such aforementioned hedging activities do not
constitute a breach of any of the Transaction Documents.


(gg)          
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.


(hh)          
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.


(ii)              
Stock Option Plans. Each stock
option granted by the Company under the Company’s stock
option plan was granted (i) in accordance with the terms of the
Company’s stock option plan and (ii) with an exercise price
at least equal to the fair market value of the Common Stock on the
date such stock option would be considered granted under GAAP and
applicable law. No stock option granted under the Company’s
stock option plan has been backdated. The Company has not knowingly
granted, and there is no and has been no Company policy or practice
to knowingly grant, stock options prior to, or otherwise knowingly
coordinate the grant of stock options with, the release or other
public announcement of material information regarding the Company
or its Subsidiaries or their financial results or prospects.



(jj)              
Office of Foreign Assets
Control. Neither the Company nor any Subsidiary nor, to the
Company's knowledge, any director, officer, agent, employee or
affiliate of the Company 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 Purchaser’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 or Proceeding by or before any
court or governmental agency, authority or body or any arbitrator
involving the Company or any Subsidiary with respect to the Money
Laundering Laws is pending or, to the knowledge of the Company or
any Subsidiary, threatened.


3.2             
Representations and Warranties of
the Purchasers. Each Purchaser, for itself and for no other
Purchaser, hereby represents and warrants as of the date hereof and
as of the Closing Date to the Company as follows (unless as of a
specific date therein, in which case they shall be accurate as of
such date):


(a)               
Organization; Authority. Such
Purchaser is either an individual or an entity duly incorporated or
formed, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or formation with full right,
corporate, partnership, limited liability company or similar power
and authority to enter into and to consummate the transactions
contemplated by the Transaction Documents and otherwise to carry
out its obligations hereunder and thereunder. The execution and
delivery of the Transaction Documents and performance by such
Purchaser of the transactions contemplated by the Transaction
Documents have been duly authorized by all necessary corporate,
partnership, limited liability company or similar action, as
applicable, on the part of such Purchaser. Each Transaction
Document to which it is a party has been duly executed by such
Purchaser, and when delivered by such Purchaser in accordance with
the terms hereof, will constitute the valid and legally binding
obligation of such Purchaser, enforceable against it 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.


(b)              
Understandings or
Arrangements. Such Purchaser is acquiring the Securities as
principal for its own account and has no direct or indirect
arrangement or understandings with any other persons to distribute
or regarding the distribution of such Securities (this
representation and warranty not limiting such Purchaser’s
right to sell the Securities pursuant to the Registration Statement
or otherwise in compliance with applicable federal and state
securities laws). Such Purchaser is acquiring the Securities
hereunder in the ordinary course of its business.


(c)               
Purchaser Status. At the time
such Purchaser was offered the Securities, it was, and as of the
date hereof it is, and on each date on which it exercises any
Warrants or converts any shares of Preferred Stock it will be an
“accredited investor” as defined in Rule 501(a)(1),
(a)(2), (a)(3), (a)(7) or (a)(8) under the Securities
Act; or (ii) a
“qualified institutional buyer” as defined in Rule
144A(a) under the Securities Act. Such Purchaser is not required to
be registered as a broker-dealer under Section 15 of the Exchange
Act.


(d)              
Experience of Such Purchaser.
Such Purchaser, either alone or together with its representatives,
has such knowledge, sophistication and experience in business and
financial matters so as to be capable of evaluating the merits and
risks of the prospective investment in the Securities, and has so
evaluated the merits and risks of such investment. Such Purchaser
is able to bear the economic risk of an investment in the
Securities and, at the present time, is able to afford a complete
loss of such investment.


(e)               
Access to Information. Such
Purchaser acknowledges that it has had the opportunity to review
the Transaction Documents (including all exhibits and schedules
thereto) and the SEC Reports and has been afforded, (i) the
opportunity to ask such questions as it has deemed necessary of,
and to receive answers from, representatives of the Company
concerning the terms and conditions of the offering of the Shares
and the merits and risks of investing in the Shares; (ii) access to
information about the Company and its financial condition, results
of operations, business, properties, management and prospects
sufficient to enable it to evaluate its investment; and (iii) the
opportunity to obtain such additional information that the Company
possesses or can acquire without unreasonable effort or expense
that is necessary to make an informed investment decision with
respect to the investment.  Such Purchaser acknowledges and
agrees that neither the Placement Agent nor any Affiliate of the
Placement Agent has provided such Purchaser with any information or
advice with respect to the Securities nor is such information or
advice necessary or desired.  Neither the Placement Agent nor
any Affiliate has made or makes any representation as to the
Company or the quality of the Securities and the Placement Agent
and any Affiliate may have acquired non-public information with
respect to the Company which such Purchaser agrees need not be
provided to it.  In connection with the issuance of the
Securities to such Purchaser, neither the Placement Agent nor any
of its Affiliates has acted as a financial advisor or fiduciary to
such Purchaser.


(f)               
Certain Transactions and
Confidentiality. Other than consummating the transactions
contemplated hereunder, such Purchaser has not directly or
indirectly, nor has any Person acting on behalf of or pursuant to
any understanding with such Purchaser, executed any purchases or
sales, including Short Sales, of the securities of the Company
during the period commencing as of the time that such Purchaser
first received a term sheet (written or oral) from the Company or
any other Person representing the Company setting forth the
material pricing terms of the transactions contemplated hereunder
and ending immediately prior to the execution hereof.
Notwithstanding the foregoing, in the case of a Purchaser that is a
multi-managed investment vehicle whereby separate portfolio
managers manage separate portions of such Purchaser’s assets
and the portfolio managers have no direct knowledge of the
investment decisions made by the portfolio managers managing other
portions of such Purchaser’s assets, the representation set
forth above shall only apply with respect to the portion of assets
managed by the portfolio manager that made the investment decision
to purchase the Securities covered by this Agreement. Other than to
other Persons party to this Agreement or to such Purchaser’s
representatives, including, without limitation, its officers,
directors, partners, legal and other advisors, employees, agents
and Affiliates, such Purchaser has maintained the confidentiality
of all disclosures made to it in connection with this transaction
(including the existence and terms of this transaction).
Notwithstanding the foregoing, for the avoidance of doubt, nothing
contained herein shall constitute a representation or warranty, or
preclude any actions, with respect to locating or borrowing shares
in order to effect Short Sales or similar transactions in the
future.


The Company acknowledges and agrees that the representations
contained in this Section 3.2 shall not modify, amend or affect
such Purchaser’s right to rely on the Company’s
representations and warranties contained in this Agreement or any
representations and warranties contained in any other Transaction
Document or any other document or instrument executed and/or
delivered in connection with this Agreement or the consummation of
the transactions contemplated hereby. Notwithstanding the
foregoing, for the avoidance of doubt, nothing contained herein
shall constitute a representation or warranty, or preclude any
actions, with respect to locating or borrowing shares in order to
effect Short Sales or similar transactions in the future.


 


ARTICLE IV. 


OTHER AGREEMENTS OF THE PARTIES


4.1             
Underlying Shares. The shares
of Common Stock underlying the shares of Preferred Stock shall be
issued free of legends. If all or any portion of a Warrant is
exercised at a time when there is an effective registration
statement to cover the issuance or resale of the Warrant Shares or
if the Warrant is exercised via cashless exercise, the Warrant
Shares issued pursuant to any such exercise shall be issued free of
all legends. If at any time following the date hereof the
Registration Statement (or any subsequent registration statement
registering the sale or resale of the Warrant Shares) is not
effective or is not otherwise available for the sale or resale of
the Warrant Shares, the Company shall, within one (1) business day,
notify the holders of the Warrants in writing that such
registration statement is not then effective and thereafter shall
promptly notify such holders when the registration statement is
effective again and available for the sale or resale of the Warrant
Shares (it being understood and agreed that the foregoing shall not
limit the ability of the Company to issue, or any Purchaser to
sell, any of the Warrant Shares in compliance with applicable
federal and state securities laws). The Company shall use best
efforts to keep a registration statement (including the
Registration Statement) registering the issuance or resale of the
Warrant Shares effective during the term of the
Warrants.


4.2             
Acknowledgment of Dilution.
The Company acknowledges that the issuance of the Securities may
result in dilution of the outstanding shares of Common Stock, which
dilution may be substantial under certain market conditions. The
Company further acknowledges that its obligations under the
Transaction Documents, including, without limitation, its
obligation to issue the Underlying Shares pursuant to the
Transaction Documents, are unconditional and absolute and not
subject to any right of set off, counterclaim, delay or reduction,
regardless of the effect of any such dilution or any claim the
Company may have against any Purchaser and regardless of the
dilutive effect that such issuance may have on the ownership of the
other stockholders of the Company.


4.3             
Furnishing of Information; Public
Information. Until the earliest of the time that (i) no
Purchaser owns Securities or (ii) the Warrants have expired, the
Company covenants to maintain the registration of the Common Stock
under Section 12(b) or 12(g) of the Exchange Act and to timely file
(or obtain extensions in respect thereof and file within the
applicable grace period) all reports required to be filed by the
Company after the date hereof pursuant to the Exchange Act even if
the Company is not then subject to the reporting requirements of
the Exchange Act.


4.4             
Integration. The Company shall
not sell, offer for sale or solicit offers to buy or otherwise
negotiate in respect of any security (as defined in Section 2 of
the Securities Act) that would be integrated with the offer or sale
of the Securities for purposes of the rules and regulations of any
Trading Market such that it would require shareholder approval
prior to the closing of such other transaction unless shareholder
approval is obtained before the closing of such subsequent
transaction.


4.5             
Conversion and Exercise
Procedures. Each of the form of Notice of Exercise included in
the Warrants and the form of Notice of Conversion included in the
Certificate of Designation set forth the totality of the procedures
required of the Purchasers in order to exercise the Warrants or
convert the Preferred Stock. Without limiting the preceding
sentences, no ink-original Notice of Exercise or Notice of
Conversion shall be required, nor shall any medallion guarantee (or
other type of guarantee or notarization) of any Notice of Exercise
or Notice of Conversion form be required in order to exercise the
Warrants or convert the Preferred Stock. No additional legal
opinion, other information or instructions shall be required of the
Purchasers to exercise their Warrants or convert their Preferred
Stock. The Company shall honor exercises of the Warrants and
conversions of the Preferred Stock and shall deliver Underlying
Shares in accordance with the terms, conditions and time periods
set forth in the Transaction Documents.


4.6             
Securities Laws Disclosure;
Publicity. The Company shall (a) by 9:00 a.m. (New York City
time) on the Trading Day immediately following the date hereof,
issue a press release disclosing the material terms of the
transactions contemplated hereby and (b) file a Current Report on
Form 8-K, including the Transaction Documents as exhibits thereto,
with the Commission within the time required by the Exchange Act.
From and after the issuance of such press release, the Company
represents to the Purchasers that it shall have publicly disclosed
all material, non-public information delivered to any of the
Purchasers by the Company or any of its Subsidiaries, or any of
their respective officers, directors, employees or agents in
connection with the transactions contemplated by the Transaction
Documents. In addition, effective upon the issuance of such press
release, the Company acknowledges and agrees that any and all
confidentiality or similar obligations under any agreement, whether
written or oral, between the Company, any of its Subsidiaries or
any of their respective officers, directors, agents, employees or
Affiliates on the one hand, and any of the Purchasers or any of
their Affiliates on the other hand, shall terminate. The Company
and each Purchaser shall consult with each other in issuing any
other press releases with respect to the transactions contemplated
hereby, and neither the Company nor any Purchaser shall issue any
such press release nor otherwise make any such public statement
without the prior consent of the Company, with respect to any press
release of any Purchaser, or without the prior consent of each
Purchaser, with respect to any press release of the Company, which
consent shall not unreasonably be withheld or delayed, except if
such disclosure is required by law, in which case the disclosing
party shall promptly provide the other party with prior notice of
such public statement or communication. Notwithstanding the
foregoing, the Company shall not publicly disclose the name of any
Purchaser, or include the name of any Purchaser in any filing with
the Commission or any regulatory agency or Trading Market, without
the prior written consent of such Purchaser, except: (a) as
required by federal securities law in connection with the filing of
final Transaction Documents with the Commission and (b) to the
extent such disclosure is required by law or Trading Market
regulations, in which case the Company shall provide the Purchasers
with prior notice of such disclosure permitted under this clause
(b).


4.7             
Shareholder Rights Plan. No
claim will be made or enforced by the Company or, with the consent
of the Company, any other Person, that any Purchaser is an
“Acquiring Person” under any control share acquisition,
business combination, poison pill (including any distribution under
a rights agreement) or similar anti-takeover plan or arrangement in
effect or hereafter adopted by the Company, or that any Purchaser
could be deemed to trigger the provisions of any such plan or
arrangement, by virtue of receiving Securities under the
Transaction Documents or under any other agreement between the
Company and the Purchasers.


4.8             
Non-Public Information. Except
with respect to the material terms and conditions of the
transactions contemplated by the Transaction Documents, which shall
be disclosed pursuant to Section 4.4, the Company covenants and
agrees that neither it, nor any other Person acting on its behalf
will provide any Purchaser or its agents or counsel with any
information that constitutes, or the Company reasonably believes
constitutes, material non-public information, unless prior thereto
such Purchaser shall have consented to the receipt of such
information and agreed with the Company to keep such information
confidential. The Company understands and confirms that each
Purchaser shall be relying on the foregoing covenant in effecting
transactions in securities of the Company. To the extent that the
Company delivers any material, non-public information to a
Purchaser without such Purchaser’s consent, the Company
hereby covenants and agrees that such purchaser shall not have any
duty of confidentiality to Company, any of its Subsidiaries, or any
of their respective officers, directors, agents, employees or
Affiliates, or a duty to the Company, and of it Subsidiaries or any
of their respective officers, directors, agents, employees or
Affiliates not to trade on the basis of, such material, non-public
information, provided that the Purchaser shall remain subject to
applicable law. To the extent that any notice provided pursuant to
any Transaction Document constitutes, or contains, material,
non-public information regarding the Company or any Subsidiaries,
the Company shall simultaneously file such notice with the
Commission pursuant to a Current Report on Form 8-K. The Company
understands and confirms that each Purchaser shall be relying on
the foregoing covenant in effecting transactions in securities of
the Company.


4.9             
Use of Proceeds. The Company
shall use the net proceeds from the sale of the Securities
hereunder for working capital purposes and shall not use such
proceeds: (a) for the satisfaction of any portion of the
Company’s debt (other than payment of accounts payable in the
ordinary course of the Company’s business and prior
practices), (b) for the redemption of any Common Stock or Common
Stock Equivalents, (c) for the settlement of any outstanding
litigation or (d) in violation of FCPA or OFAC
regulations.


4.10         
Indemnification of Purchasers.
Subject to the provisions of this Section 4.10, the Company will
indemnify and hold each Purchaser and its directors, officers,
shareholders, members, partners, employees and agents (and any
other Persons with a functionally equivalent role of a Person
holding such titles notwithstanding a lack of such title or any
other title), each Person who controls such Purchaser (within the
meaning of Section 15 of the Securities Act and Section 20 of the
Exchange Act), and the directors, officers, shareholders, agents,
members, partners or employees (and any other Persons with a
functionally equivalent role of a Person holding such titles
notwithstanding a lack of such title or any other title) of such
controlling persons (each, a “Purchaser Party”)
harmless from any and all losses, liabilities, obligations, claims,
contingencies, damages, costs and expenses, including all
judgments, amounts paid in settlements, court costs and reasonable
attorneys’ fees and costs of investigation that any such
Purchaser Party may suffer or incur as a result of or relating to
(a) any breach of any of the representations, warranties, covenants
or agreements made by the Company in this Agreement or in the other
Transaction Documents or (b) any action instituted against the
Purchaser Parties in any capacity, or any of them or their
respective Affiliates, by any stockholder of the Company who is not
an Affiliate of such Purchaser Party, with respect to any of the
transactions contemplated by the Transaction Documents (unless such
action is based upon a breach of such Purchaser Party’s
representations, warranties or covenants under the Transaction
Documents or any agreements or understandings such Purchaser Party
may have with any such stockholder or any violations by such
Purchaser Party of state or federal securities laws or any conduct
by such Purchaser Party which constitutes fraud, gross negligence,
willful misconduct or malfeasance). If any action shall be brought
against any Purchaser Party in respect of which indemnity may be
sought pursuant to this Agreement, such Purchaser Party shall
promptly notify the Company in writing, and the Company shall have
the right to assume the defense thereof with counsel of its own
choosing reasonably acceptable to the Purchaser Party. Any
Purchaser Party 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
Purchaser Party except to the extent that (i) the employment
thereof has been specifically authorized by the Company in writing,
(ii) the Company has failed after a reasonable period of time to
assume such defense and to employ counsel or (iii) in such action
there is, in the reasonable opinion of counsel, a material conflict
on any material issue between the position of the Company and the
position of such Purchaser Party, in which case the Company shall
be responsible for the reasonable fees and expenses of no more than
one such separate counsel. The Company will not be liable to any
Purchaser Party under this Agreement (y) for any settlement by a
Purchaser Party effected without the Company’s prior written
consent, which shall not be unreasonably withheld or delayed; or
(z) to the extent, but only to the extent that a loss, claim,
damage or liability is attributable to any Purchaser Party’s
breach of any of the representations, warranties, covenants or
agreements made by such Purchaser Party in this Agreement or in the
other Transaction Documents. The indemnification required by this
Section 4.10 shall be made by periodic payments of the amount
thereof during the course of the investigation or defense, as and
when bills are received or are incurred. The indemnity agreements
contained herein shall be in addition to any cause of action or
similar right of any Purchaser Party against the Company or others
and any liabilities the Company may be subject to pursuant to
law.


4.11         
Reservation and Listing of
Securities.


(a)               
The Company shall maintain a reserve
from its duly authorized shares of Common Stock for issuance
pursuant to the Transaction Documents in such amount as may then be
required to fulfill its obligations in full under the Transaction
Documents.


(b)              
If, on any date, the number of
authorized but unissued (and otherwise unreserved) shares of Common
Stock is less than the Required Minimum on such date, then the
Board of Directors shall use commercially reasonable efforts to
amend the Company’s certificate or articles of incorporation
to increase the number of authorized but unissued shares of Common
Stock to at least the Required Minimum at such time, as soon as
possible and in any event not later than the 75th day after such
date.


(c)               
The Company shall, if applicable: (i)
in the time and manner required by the principal Trading Market,
prepare and file with such Trading Market an additional shares
listing application covering a number of shares of Common Stock at
least equal to the Required Minimum on the date of such
application, (ii) take all steps necessary to cause such shares of
Common Stock to be approved for listing or quotation on such
Trading Market as soon as possible thereafter, (iii) provide to the
Purchasers evidence of such listing or quotation and (iv) maintain
the listing or quotation of such Common Stock on any date at least
equal to the Required Minimum on such date on such Trading Market
or another Trading Market. The Company agrees to maintain the
eligibility of the Common Stock for electronic transfer through the
Depository Trust Company or another established clearing
corporation, including, without limitation, by timely payment of
fees to the Depository Trust Company or such other established
clearing corporation in connection with such electronic
transfer.


4.12         
[RESERVED]


4.13         
Subsequent Equity
Sales.


(a)               
From the date hereof until ninety
(90) days after the Closing Date, neither the Company nor any
Subsidiary shall issue, enter into any agreement to issue or
announce the issuance or proposed issuance of any shares of Common
Stock or Common Stock Equivalents.


(b)              
From the date hereof until such time
as no Purchaser holds any of the Warrants, the Company shall be
prohibited from effecting or entering into an agreement to effect
any issuance by the Company or any of its Subsidiaries of Common
Stock or Common Stock Equivalents (or a combination of units
thereof) involving a Variable Rate Transaction. “Variable
Rate Transaction” means a transaction in which the
Company (i) issues or sells any debt or equity securities that are
convertible into, exchangeable or exercisable for, or include the
right to receive, additional shares of Common Stock either (A) at a
conversion price, exercise price or exchange rate or other price
that is based upon, and/or varies with, the trading prices of or
quotations for the shares of Common Stock at any time after the
initial issuance of such debt or equity securities or (B) with a
conversion, exercise or exchange price that is subject to being
reset at some future date after the initial issuance of such debt
or equity security or upon the occurrence of specified or
contingent events directly or indirectly related to the business of
the Company or the market for the Common Stock or (ii) enters into,
or effects a transaction under, any agreement, including, but not
limited to, an equity line of credit, whereby the Company may issue
securities at a future determined price. Any Purchaser shall be
entitled to obtain injunctive relief against the Company to
preclude any such issuance, which remedy shall be in addition to
any right to collect damages.


(c)               
Notwithstanding the foregoing, this
Section 4.13 shall not apply in respect of an Exempt Issuance,
except that no Variable Rate Transaction shall be an Exempt
Issuance. 


4.14         
Equal Treatment of Purchasers.
No consideration (including any modification of any Transaction
Document) shall be offered or paid to any Person to amend or
consent to a waiver or modification of any provision of the
Transaction Documents unless the same consideration is also offered
to all of the parties to such Transaction Documents. For
clarification purposes, this provision constitutes a separate right
granted to each Purchaser by the Company and negotiated separately
by each Purchaser, and is intended for the Company to treat the
Purchasers as a class and shall not in any way be construed as the
Purchasers acting in concert or as a group with respect to the
purchase, disposition or voting of Securities or
otherwise.


4.15         
Certain Transactions and
Confidentiality. Each Purchaser, severally and not jointly with
the other Purchasers, covenants that neither it, nor any Affiliate
acting on its behalf or pursuant to any understanding with it will
execute any purchases or sales, including Short Sales, of any of
the Company’s securities during the period commencing with
the execution of this Agreement and ending at such time that the
transactions contemplated by this Agreement are first publicly
announced pursuant to the initial press release as described in
Section 4.6.  Each Purchaser, severally and not jointly with
the other Purchasers, covenants that until such time as the
transactions contemplated by this Agreement are publicly disclosed
by the Company pursuant to the initial press release as described
in Section 4.6, such Purchaser will maintain the confidentiality of
the existence and terms of this transaction and the information
included in the Transaction Documents and the Disclosure Schedules.
Notwithstanding the foregoing, and notwithstanding anything
contained in this Agreement to the contrary, the Company expressly
acknowledges and agrees that (i) no Purchaser makes any
representation, warranty or covenant hereby that it will not engage
in effecting transactions in any securities of the Company after
the time that the transactions contemplated by this Agreement are
first publicly announced pursuant to the initial press release as
described in Section 4.6, (ii) no Purchaser shall be restricted or
prohibited from effecting any transactions in any securities of the
Company in accordance with applicable securities laws from and
after the time that the transactions contemplated by this Agreement
are first publicly announced pursuant to the initial press release
as described in Section 4.6 and (iii) no Purchaser shall have any
duty of confidentiality or duty not to trade in the securities of
the Company to the Company or its Subsidiaries after the issuance
of the initial press release as described in Section 4.6. 
Notwithstanding the foregoing, in the case of a Purchaser that is a
multi-managed investment vehicle whereby separate portfolio
managers manage separate portions of such Purchaser’s assets
and the portfolio managers have no direct knowledge of the
investment decisions made by the portfolio managers managing other
portions of such Purchaser’s assets, the covenant set forth
above shall only apply with respect to the portion of assets
managed by the portfolio manager that made the investment decision
to purchase the Securities covered by this Agreement.


4.16         
Capital Changes. Until the one
year anniversary of the Closing Date, the Company shall not
undertake a reverse or forward stock split or reclassification of
the Common Stock without the prior written consent of the
Purchasers holding a majority in interest of the shares of
Preferred Stock.


4.17         
Limitation on Conversion of the
Preferred Stock. Each Purchaser, severally and not jointly with
the other Purchasers, covenants that it, together with its
Affiliates, will not convert more than 25% of the shares of
Preferred Stock originally issued to such Purchaser at the Closing
during any fiscal quarter, which such first fiscal quarter shall
have begun on [April 1, 2017]. By way of example, if a Purchaser
purchases 100 shares of Preferred Stock, such Purchaser may not
convert more than 25 shares of Preferred Stock in any fiscal
quarter.


ARTICLE V. 


MISCELLANEOUS


5.1             
Termination.  This
Agreement may be terminated by any Purchaser, as to such
Purchaser’s obligations hereunder only and without any effect
whatsoever on the obligations between the Company and the other
Purchasers, by written notice to the other parties, if the Closing
has not been consummated on or before _____, 2017; provided,
however, that such termination will not affect the right of
any party to sue for any breach by any other party (or
parties).


5.2             
Fees and Expenses. Except as
expressly set forth in the Transaction Documents to the contrary,
each party shall pay the fees and expenses of its advisers,
counsel, accountants and other experts, if any, and all other
expenses incurred by such party incident to the negotiation,
preparation, execution, delivery and performance of this Agreement.
The Company shall pay all Transfer Agent fees (including, without
limitation, any fees required for same-day processing of any
instruction letter delivered by the Company and any conversion or
exercise notice delivered by a Purchaser), stamp taxes and other
taxes and duties levied in connection with the delivery of any
Securities to the Purchasers.


5.3             
Entire Agreement. The
Transaction Documents, together with the exhibits and schedules
thereto, the Prospectus and the Prospectus Supplement, contain the
entire understanding of the parties with respect to the subject
matter hereof and thereof and supersede all prior agreements and
understandings, oral or written, with respect to such matters,
which the parties acknowledge have been merged into such documents,
exhibits and schedules.


5.4             
Notices. Any and all notices
or other communications or deliveries required or permitted to be
provided hereunder shall be in writing and shall be deemed given
and effective on the earliest of: (a) the date of transmission, if
such notice or communication is delivered via facsimile at the
facsimile number or email attachment as set forth on the signature
pages attached hereto at or prior to 5:30 p.m. (New York City time)
on a Trading Day, (b) the next Trading Day after the date of
transmission, if such notice or communication is delivered via
facsimile at the facsimile number or email attachment as set forth
on the signature pages attached hereto on a day that is not a
Trading Day or later than 5:30 p.m. (New York City time) on any
Trading Day, (c) the second (2nd) Trading Day following
the date of mailing, if sent by U.S. nationally recognized
overnight courier service or (d) upon actual receipt by the party
to whom such notice is required to be given. The address for such
notices and communications shall be as set forth on the signature
pages attached hereto. To the extent that any notice provided
pursuant to any Transaction Document constitutes, or contains,
material, non-public information regarding the Company or any
Subsidiaries, the Company shall simultaneously file such notice
with the Commission pursuant to a Current Report on Form
8-K.


5.5             
Amendments; Waivers. No
provision of this Agreement may be waived, modified, supplemented
or amended except in a written instrument signed, in the case of an
amendment, by the Company and Purchasers which purchased at least
50.1% in interest of the Preferred Stock based on the initial
Subscription Amounts hereunder or, in the case of a waiver, by the
party against whom enforcement of any such waived provision is
sought, provided that if any amendment, modification or waiver
disproportionately and adversely impacts a Purchaser (or group of
Purchasers), the consent of such disproportionately impacted
Purchaser (or group of Purchasers) shall also be required. No
waiver of any default with respect to any provision, condition or
requirement of this Agreement shall be deemed to be a continuing
waiver in the future or a waiver of any subsequent default or a
waiver of any other provision, condition or requirement hereof, nor
shall any delay or omission of any party to exercise any right
hereunder in any manner impair the exercise of any such right. Any
proposed amendment or waiver that disproportionately, materially
and adversely affects the rights and obligations of any Purchaser
relative to the comparable rights and obligations of the other
Purchasers shall require the prior written consent of such
adversely affected Purchaser, Any amendment effected in accordance
with accordance with this Section 5.5 shall be binding upon each
Purchaser and holder of Securities and the Company.


5.6             
Headings. The headings herein
are for convenience only, do not constitute a part of this
Agreement and shall not be deemed to limit or affect any of the
provisions hereof.


5.7             
Successors and Assigns. This
Agreement shall be binding upon and inure to the benefit of the
parties and their successors and permitted assigns. The Company may
not assign this Agreement or any rights or obligations hereunder
without the prior written consent of each Purchaser (other than by
merger). Any Purchaser may assign any or all of its rights under
this Agreement to any Person to whom such Purchaser assigns or
transfers any Securities, provided that such transferee agrees in
writing to be bound, with respect to the transferred Securities, by
the provisions of the Transaction Documents that apply to the
“Purchasers.”


5.8             
No Third-Party Beneficiaries.
The Placement Agent shall be the third party beneficiary of the
representations and warranties of the Company in Section 3.1 and
the representations and warranties of the Purchasers in Section
3.2. This Agreement is intended for the benefit of the parties
hereto and their respective successors and permitted assigns and is
not for the benefit of, nor may any provision hereof be enforced
by, any other Person, except as otherwise set forth in Section 4.10
and this Section 5.8.


5.9             
Governing Law. All questions
concerning the construction, validity, enforcement and
interpretation of the Transaction Documents shall be governed by
and construed and enforced in accordance with the internal laws of
the State of New York, without regard to the principles of
conflicts of law thereof. Each party agrees that all legal
Proceedings concerning the interpretations, enforcement and defense
of the transactions contemplated by this Agreement and any other
Transaction Documents (whether brought against a party hereto or
its respective affiliates, directors, officers, shareholders,
partners, members, employees or agents) shall be commenced
exclusively in the state and federal courts sitting in the City of
New York. Each party hereby irrevocably submits to the exclusive
jurisdiction of the state and federal courts sitting in the City of
New York, Borough of Manhattan for the adjudication of any dispute
hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein (including with respect to
the enforcement of any of the Transaction Documents), and hereby
irrevocably waives, and agrees not to assert in any Action or
Proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such Action or Proceeding is
improper or is an inconvenient venue for such Proceeding. Each
party hereby irrevocably waives personal service of process and
consents to process being served in any such Action or Proceeding
by mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery) to such party at the
address in effect for notices to it under this Agreement and agrees
that such service shall constitute good and sufficient service of
process and notice thereof. Nothing contained herein shall be
deemed to limit in any way any right to serve process in any other
manner permitted by law. If any party shall commence an Action or
Proceeding to enforce any provisions of the Transaction Documents,
then, in addition to the obligations of the Company under Section
4.10, the prevailing party in such Action or Proceeding shall be
reimbursed by the non-prevailing party for its reasonable
attorneys’ fees and other costs and expenses incurred with
the investigation, preparation and prosecution of such Action or
Proceeding.


5.10         
Survival. The representations
and warranties contained herein shall survive the Closing and the
delivery of the Securities.


5.11         
Execution. This Agreement may
be executed in two or more counterparts, all of which when taken
together shall be considered one and the same agreement and shall
become effective when counterparts have been signed by each party
and delivered to each other party, it being understood that the
parties need not sign the same counterpart. In the event that any
signature is delivered by facsimile transmission or by e-mail
delivery of a “.pdf” format data file, such signature
shall create a valid and binding obligation of the party executing
(or on whose behalf such signature is executed) with the same force
and effect as if such facsimile or “.pdf” signature
page were an original thereof.


5.12         
Severability. If any term,
provision, covenant or restriction of this Agreement is held by a
court of competent jurisdiction to be invalid, illegal, void or
unenforceable, the remainder of the terms, provisions, covenants
and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated,
and the parties hereto shall use their commercially reasonable
efforts to find and employ an alternative means to achieve the same
or substantially the same result as that contemplated by such term,
provision, covenant or restriction. It is hereby stipulated and
declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and
restrictions without including any of such that may be hereafter
declared invalid, illegal, void or unenforceable.


5.13         
Rescission and Withdrawal
Right. Notwithstanding anything to the contrary contained in
(and without limiting any similar provisions of) any of the other
Transaction Documents, whenever any Purchaser exercises a right,
election, demand or option under a Transaction Document and the
Company does not timely perform its related obligations within the
periods therein provided, then such Purchaser may rescind or
withdraw, in its sole discretion from time to time upon written
notice to the Company, any relevant notice, demand or election in
whole or in part without prejudice to its future actions and
rights; provided, however, that in the case of a
rescission of a conversion of the Preferred Stock or exercise of a
Warrant, the applicable Purchaser shall be required to return any
shares of Common Stock subject to any such rescinded conversion or
exercise notice concurrently with the return to such Purchaser of
the aggregate exercise price paid to the Company for such shares
and the restoration of such Purchaser’s right to acquire such
shares pursuant to such Purchaser’s Warrant (including,
issuance of a replacement warrant certificate evidencing such
restored right).


5.14         
Replacement of Securities. If
any certificate or instrument evidencing any Securities is
mutilated, lost, stolen or destroyed, the Company shall issue or
cause to be issued in exchange and substitution for and upon
cancellation thereof (in the case of mutilation), or in lieu of and
substitution therefor, a new certificate or instrument, but only
upon receipt of evidence reasonably satisfactory to the Company of
such loss, theft or destruction. The applicant for a new
certificate or instrument under such circumstances shall also pay
any reasonable third-party costs (including customary indemnity)
associated with the issuance of such replacement
Securities.


5.15         
Remedies. In addition to being
entitled to exercise all rights provided herein or granted by law,
including recovery of damages, each of the Purchasers and the
Company will be entitled to specific performance under the
Transaction Documents. The parties agree that monetary damages may
not be adequate compensation for any loss incurred by reason of any
breach of obligations contained in the Transaction Documents and
hereby agree to waive and not to assert in any Action for specific
performance of any such obligation the defense that a remedy at law
would be adequate.


5.16         
Payment Set Aside. To the
extent that the Company makes a payment or payments to any
Purchaser pursuant to any Transaction Document or a Purchaser
enforces or exercises its rights thereunder, and such payment or
payments or the proceeds of such enforcement or exercise or any
part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside, recovered from, disgorged by
or are required to be refunded, repaid or otherwise restored to the
Company, a trustee, receiver or any other Person under any law
(including, without limitation, any bankruptcy law, state or
federal law, common law or equitable cause of action), then to the
extent of any such restoration the obligation or part thereof
originally intended to be satisfied shall be revived and continued
in full force and effect as if such payment had not been made or
such enforcement or setoff had not occurred.


5.17         
Usury. To the extent it may
lawfully do so, the Company hereby agrees not to insist upon or
plead or in any manner whatsoever claim, and will resist any and
all efforts to be compelled to take the benefit or advantage of,
usury laws wherever enacted, now or at any time hereafter in force,
in connection with any Action or Proceeding that may be brought by
any Purchaser in order to enforce any right or remedy under any
Transaction Document. Notwithstanding any provision to the contrary
contained in any Transaction Document, it is expressly agreed and
provided that the total liability of the Company under the
Transaction Documents for payments in the nature of interest shall
not exceed the maximum lawful rate authorized under applicable law
(the “Maximum Rate”), and, without limiting the
foregoing, in no event shall any rate of interest or default
interest, or both of them, when aggregated with any other sums in
the nature of interest that the Company may be obligated to pay
under the Transaction Documents exceed such Maximum Rate. It is
agreed that if the maximum contract rate of interest allowed by law
and applicable to the Transaction Documents is increased or
decreased by statute or any official governmental action subsequent
to the date hereof, the new maximum contract rate of interest
allowed by law will be the Maximum Rate applicable to the
Transaction Documents from the Closing Date thereof forward, unless
such application is precluded by applicable law. If under any
circumstances whatsoever, interest in excess of the Maximum Rate is
paid by the Company to any Purchaser with respect to indebtedness
evidenced by the Transaction Documents, such excess shall be
applied by such Purchaser to the unpaid principal balance of any
such indebtedness or be refunded to the Company, the manner of
handling such excess to be at such Purchaser’s
election.


5.18         
Independent Nature of
Purchasers’ Obligations and Rights. The obligations of
each Purchaser under any Transaction Document are several and not
joint with the obligations of any other Purchaser, and no Purchaser
shall be responsible in any way for the performance or
non-performance of the obligations of any other Purchaser under any
Transaction Document. Nothing contained herein or in any other
Transaction Document, and no action taken by any Purchaser pursuant
hereto or thereto, shall be deemed to constitute the Purchasers as
a partnership, an association, a joint venture or any other kind of
entity, or create a presumption that the Purchasers are in any way
acting in concert or as a group with respect to such obligations or
the transactions contemplated by the Transaction Documents. Each
Purchaser shall be entitled to independently protect and enforce
its rights, including, without limitation, the rights arising out
of this Agreement or out of the other Transaction Documents, and it
shall not be necessary for any other Purchaser to be joined as an
additional party in any Proceeding for such purpose. Each Purchaser
has been represented by its own separate legal counsel in its
review and negotiation of the Transaction Documents. For reasons of
administrative convenience only, each Purchaser and its respective
counsel have chosen to communicate with the Company through EGS.
EGS does not represent any of the Purchasers and only represents
the Placement Agent. The Company has elected to provide all
Purchasers with the same terms and Transaction Documents for the
convenience of the Company and not because it was required or
requested to do so by any of the Purchasers. It is expressly
understood and agreed that each provision contained in this
Agreement and in each other Transaction Document is between the
Company and a Purchaser, solely, and not between the Company and
the Purchasers collectively and not between and among the
Purchasers.


5.19         
Liquidated Damages. The
Company’s obligations to pay any partial liquidated damages
or other amounts owing under the Transaction Documents is a
continuing obligation of the Company and shall not terminate until
all unpaid partial liquidated damages and other amounts have been
paid notwithstanding the fact that the instrument or security
pursuant to which such partial liquidated damages or other amounts
are due and payable shall have been canceled.


5.20         
Saturdays, Sundays, Holidays,
etc.	If the last or appointed day for the taking of any action
or the expiration of any right required or granted herein shall not
be a Business Day, then such action may be taken or such right may
be exercised on the next succeeding Business Day.


5.21         
Construction. The parties
agree that each of them and/or their respective counsel have
reviewed and had an opportunity to revise the Transaction Documents
and, therefore, the normal rule of construction to the effect that
any ambiguities are to be resolved against the drafting party shall
not be employed in the interpretation of the Transaction Documents
or any amendments thereto. In addition, each and every reference to
share prices and shares of Common Stock in any Transaction Document
shall be subject to adjustment for reverse and forward stock
splits, stock dividends, stock combinations and other similar
transactions of the Common Stock that occur after the date of this
Agreement.


5.22         
WAIVER OF JURY TRIAL. IN
ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY
PARTY AGAINST ANY OTHER PARTY, THE PARTIES EACH KNOWINGLY AND
INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW,
HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY AND EXPRESSLY
WAIVES FOREVER TRIAL BY JURY.


 


(Signature Pages Follow)


 





 

 


 



 



 


IN WITNESS WHEREOF, the parties hereto have caused this Securities
Purchase Agreement to be duly executed by their respective
authorized signatories as of the date first indicated above.

	

guided therapeutics,
inc.


 


 

	

Address for Notice:


5835 Peachtree Corners East, Suite D, Norcross, GA 30092


 


	

By:__________________________________________


Name: Gene S. Cartwright


Title: President and Chief Executive Officer

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

	
Fax:

	

 


Jones Day


1420 Peachtree St. N.E.


STE 800


Atlanta, GA 30309


Facsimile: (404) 581-8330


Attention: Heith D. Rodman


 

	 





 


[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK


SIGNATURE PAGE FOR PURCHASER FOLLOWS]


 





 

 


 



 



 


[PURCHASER SIGNATURE PAGES
TO GTHP SECURITIES PURCHASE AGREEMENT]


 


IN WITNESS WHEREOF, the undersigned have caused this Securities
Purchase Agreement to be duly executed by their respective
authorized signatories as of the date first indicated above.


Name of Purchaser:
________________________________________________________


Signature of Authorized Signatory of Purchaser:
__________________________________


Name of Authorized Signatory:
____________________________________________________


Title of Authorized Signatory:
_____________________________________________________


Email Address of Authorized Signatory:
_____________________________________________


Facsimile Number of Authorized Signatory:
__________________________________________


Address for Notice to Purchaser:


 


 


 


Address for Delivery of Securities to Purchaser (if not same as
address for notice):


 


 


 


 


Subscription Amount: _____________


 


Shares of Preferred Stock: ____________


 


Warrant Shares: _________________


 


EIN Number:
_______________________


 


☐ Notwithstanding
anything contained in this Agreement to the contrary, by checking
this box (i) the obligations of the above-signed to purchase the
securities set forth in this Agreement to be purchased from the
Company by the above-signed, and the obligations of the Company to
sell such securities to the above-signed, shall be unconditional
and all conditions to Closing shall be disregarded, (ii) the
Closing shall occur on the third (3rd) Trading Day
following the date of this Agreement and (iii) any condition to
Closing contemplated by this Agreement (but prior to being
disregarded by clause (i) above) that required delivery by the
Company or the above-signed of any agreement, instrument,
certificate or the like or purchase price (as applicable) shall no
longer be a condition and shall instead be an unconditional
obligation of the Company or the above-signed (as applicable) to
deliver such agreement, instrument, certificate or the like or
purchase price (as applicable) to such other party on the Closing
Date.