EXHIBIT 10.1


 





TONIX
PHARMACEUTICALS HOLDING CORP.


 


$15,000,000



 





COMMON
STOCK 


 





SALES
AGREEMENT


 


April
28, 2016


  


Cowen
and Company, LLC


599
Lexington Avenue


New
York, NY 10022


 


Ladies
and Gentlemen:


 


Tonix
Pharmaceuticals Holding Corp. (the “Company”), confirms its agreement (this “Agreement”)
with Cowen and Company, LLC (“Cowen”), as follows:


 


1.      Issuance
and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject
to the conditions set forth herein, it may issue and sell through Cowen, acting as agent and/or principal, shares (the “Placement
Shares”) of the Company’s common stock, par value $0.001 per share (the “Common Stock”),
having an aggregate offering price of up to $15,000,000. Notwithstanding anything to the contrary contained herein, the parties
hereto agree that compliance with the limitation set forth in this Section 1 on the number of shares of Common Stock issued
and sold under this Agreement shall be the sole responsibility of the Company, and Cowen shall have no obligation in connection
with such compliance. The issuance and sale of the Placement Shares through Cowen will be effected pursuant to the Registration
Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”),
although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement (as defined below)
to issue the Placement Shares.


 


The
Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended, and the rules and regulations
thereunder (collectively, the “Securities Act”), with the Commission a registration statement on Form
S-3 (File No. 333-197824), including a base prospectus, relating to certain securities, including the Common Stock, to be issued
from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance
with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively,
the “Exchange Act”). The Company has prepared a prospectus supplement specifically relating to the Placement
Shares (the “Prospectus Supplement”) to the base prospectus included as part of such registration statement.
The Company has furnished to Cowen, for use by Cowen, copies of the prospectus included as part of such registration statement,
as supplemented by the Prospectus Supplement, relating to the Placement Shares. Except where the context otherwise requires, such
registration statement, as amended when it became effective, including all documents filed as part thereof or incorporated by
reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission
pursuant to Rule 424(b) under the Securities Act or deemed to be a part of such registration statement pursuant to Rule 430B or
462(b) of the Securities Act, is herein called the “Registration Statement.” The base prospectus, including
all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented by the Prospectus
Supplement, in the form in which such prospectus and/or Prospectus Supplement have most recently been filed by the Company with
the Commission pursuant to Rule 424(b) under the Securities Act, together with any “issuer free writing prospectus,”
as defined in Rule 433 of the Securities Act (“Rule 433”), relating to the Placement Shares that (i)
is required to be filed with the Commission by the Company or (ii) is exempt from filing pursuant to Rule 433(d)(5)(i), in each
case in the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the
Company’s records pursuant to Rule 433(g), is herein called the “Prospectus.” Any reference herein
to the Registration Statement, the Prospectus or any amendment or supplement thereto shall be deemed to refer to and include the
documents incorporated by reference therein, and any reference herein to the terms “amend,” “amendment”
or “supplement” with respect to the Registration Statement or the Prospectus shall be deemed to refer to and include
the filing after the execution hereof of any document with the Commission deemed to be incorporated by reference therein. For
purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto
shall be deemed to include any copy filed with the Commission pursuant to the Electronic Data Gathering Analysis and Retrieval
System (“EDGAR”).


 






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2.      Placements.
Each time that the Company wishes to issue and sell the Placement Shares hereunder (each, a “Placement”),
it will notify Cowen by email notice (or other method mutually agreed to in writing by the parties) (a “Placement
Notice”) containing the parameters in accordance with which it desires the Placement Shares to be sold, which shall
at a minimum include the number of Placement Shares to be issued, the time period during which sales are requested to be made,
any limitation on the number of Placement Shares that may be sold in any one Trading Day (as defined in Section 3) and any minimum
price below which sales may not be made, a form of which containing such minimum sales parameters necessary is attached hereto
as Schedule 1. The Placement Notice shall originate from any of the individuals from the Company set forth on Schedule
2 (with a copy to each of the other individuals from the Company listed on such schedule), and shall be addressed to each
of the individuals from Cowen set forth on Schedule 2, as such Schedule 2 may be amended in writing
from time to time. The Placement Notice shall be effective upon receipt by Cowen unless and until (i) in accordance with the notice
requirements set forth in Section 4, Cowen declines to accept the terms contained therein for any reason, in its sole discretion,
(ii) the entire amount of the Placement Shares have been sold, (iii) in accordance with the notice requirements set forth in Section
4, the Company suspends or terminates the Placement Notice, (iv) the Company issues a subsequent Placement Notice with parameters
superseding those on the earlier dated Placement Notice, or (v) the Agreement has been terminated under the provisions of Section
11. The amount of any discount, commission or other compensation to be paid by the Company to Cowen in connection with
the sale of the Placement Shares shall be calculated in accordance with the terms set forth in Schedule 3. It is
expressly acknowledged and agreed that neither the Company nor Cowen will have any obligation whatsoever with respect to a Placement
or any Placement Shares unless and until the Company delivers a Placement Notice to Cowen and Cowen does not decline such Placement
Notice pursuant to the terms set forth above, and then only upon the terms specified therein and herein. In the event of a conflict
between the terms of this Agreement and the terms of a Placement Notice, the terms of the Placement Notice will control.


 


3.      Sale
of Placement Shares by Cowen. Subject to the terms and conditions herein set forth, upon the Company’s delivery of a
Placement Notice, and unless the sale of the Placement Shares described therein has been declined, suspended, or otherwise terminated
in accordance with the terms of this Agreement, Cowen, for the period specified in the Placement Notice, will use its commercially
reasonable efforts consistent with its normal trading and sales practices and applicable state and federal laws, rules and regulations
and the rules of the Nasdaq Stock Market LLC (“Nasdaq”) to sell such Placement Shares up to the amount
specified in, and otherwise in accordance with, the terms of such Placement Notice. Cowen will provide written confirmation to
the Company (including by email correspondence to each of the individuals of the Company set forth on Schedule 2, if receipt of
such correspondence is actually acknowledged by any of the individuals to whom the notice is sent, other than via auto-reply)
no later than the opening of the Trading Day (as defined below) immediately following the Trading Day on which it has made sales
of Placement Shares hereunder setting forth the number of Placement Shares sold on such Trading Day, the volume-weighted average
price of the Placement Shares sold, and the Net Proceeds (as defined below) payable to the Company. Cowen may sell Placement Shares
by any method permitted by law deemed to be an “at the market offering” as defined in Rule 415 of the Securities Act,
including without limitation sales made through Nasdaq, on any other existing trading market for the Common Stock or to or through
a market maker. If expressly authorized by the Company in a Placement Notice, Cowen may also sell Placement Shares in negotiated
transactions. Notwithstanding the provisions of Section 6(jj), Cowen shall not purchase Placement Shares for its own account as
principal unless expressly authorized to do so by the Company in a Placement Notice. The Company acknowledges and agrees that
(i) there can be no assurance that Cowen will be successful in selling Placement Shares, and (ii) Cowen will incur no liability
or obligation to the Company or any other person or entity if it does not sell Placement Shares for any reason other than a failure
by Cowen to use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Placement
Shares as required under this Section 3. For the purposes hereof, “Trading Day” means any day
on which the Company’s Common Stock is purchased and sold on the principal market on which the Common Stock is listed or
quoted.


 






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4.      Suspension
of Sales.


 


(a)      The
Company or Cowen may, upon notice to the other party in writing (including by email correspondence to each of the individuals
of the other party set forth on Schedule 2, if receipt of such correspondence is actually acknowledged by any of
the individuals to whom the notice is sent, other than via auto-reply) or by telephone (confirmed immediately by verifiable facsimile
transmission or email correspondence to each of the individuals of the other party set forth on Schedule 2), suspend
any sale of Placement Shares; provided, however, that such suspension shall not affect or impair either party’s obligations
with respect to any Placement Shares sold hereunder prior to the receipt of such notice. Each of the parties agrees that no such
notice under this Section 4 shall be effective against the other unless it is made to one of the individuals named on Schedule
2 hereto, as such schedule may be amended from time to time.


 


(b)Notwithstanding
any other provision of this Agreement, during any period in which the Company is in possession of material non-public information,
the Company and Cowen agree that (i) no sale of Placement Shares will take place, (ii) the Company shall not request the sale
of any Placement Shares, and (iii) Cowen shall not be obligated to sell or offer to sell any Placement Shares.


 


5.      Settlement.


 


(a)     Settlement
of Placement Shares. Unless otherwise specified in the applicable Placement Notice, settlement for sales of Placement Shares
will occur on the third (3rd) Trading Day (or such earlier day as is industry practice for regular-way trading) following
the date on which such sales are made (each, a “Settlement Date” and the first such settlement date,
the “First Delivery Date”). The amount of proceeds to be delivered to the Company on a Settlement Date
against receipt of the Placement Shares sold (the “Net Proceeds”) will be equal to the aggregate sales
price received by Cowen at which such Placement Shares were sold, after deduction for (i) Cowen’s commission, discount
or other compensation for such sales payable by the Company pursuant to Section 2 hereof, (ii) any other amounts due and
payable by the Company to Cowen hereunder pursuant to Section 7(g) (Expenses) hereof, and (iii) any transaction fees imposed
by any governmental or self-regulatory organization in respect of such sales.


 


(b)     Delivery
of Placement Shares. On or before each Settlement Date, the Company will, or will cause its transfer agent to, electronically
transfer the Placement Shares being sold by crediting Cowen’s or its designee’s account (provided Cowen shall have
given the Company written notice of such designee and the corresponding DWAC instructions at least one Trading Day prior to the
Settlement Date) at The Depository Trust Company through its Deposit and Withdrawal at Custodian System or by such other means
of delivery as may be mutually agreed upon by the parties hereto which in all cases shall be freely tradeable, transferable, registered
shares in good deliverable form. On each Settlement Date, Cowen will deliver the related Net Proceeds in same day funds to an
account designated by the Company on, or prior to, the Settlement Date. The Company agrees that if the Company, or its transfer
agent (if applicable), defaults in its obligation to deliver duly authorized Placement Shares on a Settlement Date, through no
fault of Cowen, the Company agrees that in addition to and in no way limiting the rights and obligations set forth in Section
9(a) (Indemnification and Contribution) hereto, it will (i) hold Cowen harmless against any loss, claim, damage, or reasonable
and documented expense (including reasonable and documented legal fees and expenses), as incurred, arising out of or in connection
with such default by the Company and (ii) pay, without duplication, to Cowen any commission, discount, or other compensation to
which it would otherwise have been entitled absent such default.


 






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6.      Representations
and Warranties of the Company. The Company represents and warrants to, and agrees with, Cowen that as of the date of this
Agreement, each Representation Date (as defined in Section 7(m)), each date on which a Placement Notice is given, and any date
on which Placement Shares are sold hereunder:


 


(a)    Compliance
with Registration Requirements. The Registration Statement and any Rule 462(b) Registration Statement have been declared
effective by the Commission under the Securities Act. The Company has complied to the Commission’s satisfaction with all
requests of the Commission for additional or supplemental information. No stop order suspending the effectiveness of the Registration
Statement or any Rule 462(b) Registration Statement is in effect and no proceedings for such purpose have been instituted
or are pending or, to the best knowledge of the Company, contemplated or threatened by the Commission. The Company meets the requirements
for use of Form S-3 under the Securities Act. The proposed offering of the Placement Shares hereunder may be made pursuant to
General Instruction I.B.1. of Form S-3.


 


(b)    No
Misstatement or Omission. The Prospectus when filed complied and, as amended or supplemented, if applicable, will comply in
all material respects with the Securities Act. Each of the Registration Statement, any Rule 462(b) Registration Statement,
the Prospectus and any post-effective amendments or supplements thereto, at the time it became effective or its date, as applicable,
complied and as of each of the Settlement Dates, if any, complied in all material respects with the Securities Act and did not
and, as of each Settlement Date, if any, did not and will not contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the statements therein not misleading. The Prospectus, as amended
or supplemented, as of its date, did not and, as of each of the Settlement Dates, if any, will not contain any untrue statement
of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The representations and warranties set forth in the two immediately preceding sentences
do not apply to statements in or omissions from the Registration Statement, any Rule 462(b) Registration Statement, or any
post-effective amendment thereto, or the Prospectus, or any amendments or supplements thereto, made in reliance upon and in conformity
with information relating to Cowen furnished to the Company in writing by Cowen expressly for use therein. There are no contracts
or other documents required to be described in the Prospectus or to be filed as exhibits to the Registration Statement which have
not been described or filed as required.


 


(c)    Offering
Materials Furnished to Cowen. The Company has delivered to Cowen one complete copy of the Registration Statement and a copy
of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without
exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as Cowen has reasonably requested.


 


(d)    Not
an Ineligible Issuer. The Company currently is not an “ineligible issuer,” as defined in Rule 405 of the rules
and regulation of the Commission. The Company agrees to notify Cowen promptly upon the Company becoming an “ineligible issuer.”


 


(e)    Distribution
of Offering Material By the Company. The Company has not distributed and will not distribute, prior to the completion of Cowen’s
distribution of the Placement Shares, any offering material in connection with the offering and sale of the Placement Shares other
than the Prospectus or the Registration Statement.


 


(f)     The
Sales Agreement. This Agreement has been duly authorized, executed and delivered by, and is a valid and binding agreement
of, the Company, enforceable in accordance with its terms, except as rights to indemnification hereunder may be limited by applicable
law and except as the enforcement hereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting the rights and remedies of creditors or by general equitable principles.


 






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(g)    Authorization
of the Common Stock. The Placement Shares, when issued and delivered, will be duly authorized for issuance and sale pursuant
to this Agreement and, when issued and delivered by the Company against payment therefor pursuant to this Agreement, will be duly
authorized, validly issued, fully paid and nonassessable.


 


(h)    No
Applicable Registration or Other Similar Rights. There are no persons with registration or other similar rights to have any
equity or debt securities registered for sale under the Registration Statement or included in the offering contemplated by this
Agreement, except for such rights as have been duly waived.


 


(i)    
No Material Adverse Change. Except as otherwise disclosed in the Prospectus, subsequent to the respective dates as
of which information is given in the Prospectus: (i) there has been no material adverse change, or any development that could
reasonably be expected to result in a material adverse change, in the condition, financial or otherwise, or in the earnings, business,
operations or prospects, whether or not arising from transactions in the ordinary course of business, of the Company and its subsidiaries,
considered as one entity (any such change is called a “Material Adverse Change”); (ii) the Company
and its subsidiaries, considered as one entity, have not incurred any material liability or obligation, indirect, direct or contingent,
not in the ordinary course of business nor entered into any material transaction or agreement not in the ordinary course of business:
and (iii) there has been no dividend or distribution of any kind declared, paid or made by the Company or, except for regular
quarterly dividends publicly announced by the Company or dividends paid to the Company or other subsidiaries, by any of its subsidiaries
on any class of capital stock or repurchase or redemption by the Company or any of its subsidiaries of any class of capital stock.


 


(j)     Independent
Accountants. EisnerAmper LLP, who has expressed its opinion with respect to the financial statements (which term as used in
this Agreement includes the related notes thereto) and supporting schedules filed with the Commission or incorporated by reference
as a part of the Registration Statement and included in the Prospectus, is an independent registered public accounting firm as
required by the Securities Act and the Exchange Act.


 


(k)     Preparation
of the Financial Statements. The financial statements filed with the Commission as a part of or incorporated by reference
in the Registration Statement and included or incorporated by reference in the Prospectus, together with the related notes and
schedules, present fairly, in all material respects, the consolidated financial position of the Company and its subsidiaries as
of and at the dates indicated and the results of their operations and cash flows for the periods specified. Such financial statements
and supporting schedules have been prepared in conformity with U.S. generally accepted accounting principles applied on a consistent
basis throughout the periods involved, except as may be expressly stated in the related notes thereto. No other financial statements
or supporting schedules are required to be included in or incorporated in the Registration Statement.


 


(l)     XBRL.
The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the each Registration
Statement fairly presents the information called for in all material respects and has been prepared in accordance with the Commission’s
rules and guidelines applicable thereto.


 






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(m)    Incorporation
and Good Standing of the Company and its Subsidiaries. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Nevada and has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectus and to enter into and perform its obligations under
this Agreement. The Company does not have a significant subsidiary (as defined in Rule 1-02 (w) of Regulation S-X of
the Exchange Act). The Company is duly qualified as a foreign corporation or foreign partnership to transact business and is in
good standing in the jurisdiction of its formation and each other jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of business, except for such jurisdictions (other than the its
jurisdiction of formation) where the failure to so qualify or to be in good standing would not, individually or in the aggregate,
result in a Material Adverse Change. The Company does not own or control, directly or indirectly, any corporation, association
or other entity other than the subsidiaries listed in Exhibit 21.1 to the Company’s Annual Report on Form 10-K
for the most recently ended fiscal year and other than (i) those subsidiaries not required to be listed on Exhibit 21.1
by Item 601 of Regulation S-K under the Exchange Act and (ii) those subsidiaries formed since the last day of the most
recently ended fiscal year.


 


(n)    Capital
Stock Matters. The Common Stock conforms in all material respects to the description thereof contained in the Prospectus.
All of the issued and outstanding shares of Common Stock have been duly authorized and validly issued, are fully paid and nonassessable
and have been issued in compliance with federal and state securities laws. None of the outstanding shares of Common Stock were
issued in violation of any preemptive rights, rights of first refusal or other similar rights to subscribe for or purchase securities
of the Company. There are no authorized or outstanding options, warrants, preemptive rights, rights of first refusal or other
rights to purchase, or equity or debt securities convertible into or exchangeable or exercisable for, any capital stock of the
Company or any of its subsidiaries other than those accurately described in all material respects in the Prospectus. The description
of the Company’s stock option, stock bonus and other stock plans or arrangements, and the options or other rights granted
thereunder, set forth in the Prospectus accurately and fairly presents in all material respects the information required to be
shown with respect to such plans, arrangements, options and rights.


 


(o)    Non-Contravention
of Existing Instruments; No Further Authorizations or Approvals Required. Neither the Company nor any of its subsidiaries
is in violation of its charter or by-laws or is in default (or, with the giving of notice or lapse of time, would be in default)
(“Default”) under any indenture, mortgage, loan or credit agreement, note, contract, franchise, lease
or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of them may be bound, or
to which any of the property or assets of the Company or any of its subsidiaries is subject (each, an “Existing Instrument”),
except for such Defaults as would not, individually or in the aggregate, result in a Material Adverse Change. The Company’s
execution, delivery and performance of this Agreement and consummation of the transactions contemplated hereby and by the Prospectus
(i) have been duly authorized by all necessary corporate action and will not result in any violation of the provisions of
the charter or by-laws of the Company or any subsidiary, (ii) will not conflict with or constitute a breach of, or Default
under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or
any of its subsidiaries pursuant to, or require the consent of any other party to, any Existing Instrument, except for such conflicts,
breaches, Defaults, liens, charges or encumbrances as would not, individually or in the aggregate, result in a Material Adverse
Change and (iii) will not result in any violation of any law, administrative regulation or administrative or court decree
applicable to the Company or any subsidiary. No consent, approval, authorization or other order of, or registration or filing
with, any court or other governmental or regulatory authority or agency, is required for the Company’s execution, delivery
and performance of this Agreement and consummation of the transactions contemplated hereby and by the Prospectus, except such
as have been obtained or made by the Company and are in full force and effect under the Securities Act, applicable state securities
or blue sky laws and from the rules of the Financial Industry Regulatory Authority (“FINRA”) or Nasdaq.


 






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(p)     No
Material Actions or Proceedings. Except as disclosed in the Prospectus, there are no legal or governmental actions, suits
or proceedings pending or, to the best of the Company’s knowledge, threatened (i) against or affecting the Company
or any of its subsidiaries, (ii) which has as the subject thereof any officer or director of, or property owned or leased
by, the Company or any of its subsidiaries or (iii) relating to environmental or discrimination matters, where in any such
case (A) there is a reasonable possibility that such action, suit or proceeding might be determined adversely to the Company
or such subsidiary and (B) any such action, suit or proceeding, if so determined adversely, would reasonably be expected
to result in a Material Adverse Change or adversely affect the consummation of the transactions contemplated by this Agreement.
No material labor dispute with the employees of the Company or any of its subsidiaries exists or, to the Company’s knowledge,
is threatened or imminent.


 


(q)    All
Necessary Permits, etc. The Company and each subsidiary possess such valid and current certificates, authorizations or permits
issued by the appropriate state, federal or foreign regulatory agencies or bodies necessary to conduct their respective businesses,
other than those the failure to possess or own would not result in a Material Adverse Change, and neither the Company nor any
subsidiary has received any notice of proceedings relating to the revocation or modification of, or non-compliance with, any such
certificate, authorization or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding,
could result in a Material Adverse Change.


 


(r)    Tax
Law Compliance. Except as would not reasonably be expected to, singly or in the aggregate, have a Material Adverse Change,
the Company and its consolidated subsidiaries have (i) filed all necessary federal, state and foreign income, property and franchise
tax returns and (ii) paid all taxes required to be paid by any of them and, if due and payable, any related or similar assessment,
fine or penalty levied against any of them except as may be being contested in good faith and by appropriate proceedings. The
Company has made adequate charges, accruals and reserves in the applicable financial statements referred to in Section 1
(i) above in respect of all federal, state and foreign income, property and franchise taxes for all periods as to which the tax
liability of the Company or any of its consolidated subsidiaries has not been finally determined.


 


(s)    Company
Not an “Investment Company”. The Company is not required, and upon the issuance and sale of the Placement Shares
as herein contemplated and the application of the net proceeds therefrom as described in the Registration Statement and the Prospectus
will not be required, to register as an “investment company” under the Investment Company Act of 1940, as amended
(the “Investment Company Act”).


 






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(t)    Insurance.
Each of the Company and its subsidiaries are insured by insurers of recognized financial responsibility with policies in such
amounts and with such deductibles and covering such risks as are reasonably deemed prudent and customary for the business for
which it is engaged, and all such insurance policies are in full force and effect. The Company has no reason to believe that it
or any subsidiary will not be able (i) to renew its existing insurance coverage as and when such policies expire or (ii) to
obtain comparable coverage from similar institutions as may be necessary or appropriate to conduct its business as now conducted
and at a cost that would not result in a Material Adverse Change.


 


(u)    No
Price Stabilization or Manipulation. The Company has not taken and will not take, directly or indirectly, any action designed
to or that might be reasonably expected to cause or result in stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Placement Shares.


 


(v)    Related
Party Transactions. There are no business relationships or related-party transactions involving the Company or any subsidiary
or any other person required to be described in the Prospectus that have not been described as required.


 


(w)    Exchange
Act Compliance. The documents incorporated or deemed to be incorporated by reference in the Prospectus, at the time they were
or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the Exchange
Act, and, when read together with the other information in the Prospectus, at the Settlement Dates, will not contain an untrue
statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the fact required
to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made,
not misleading.


 


(x)    No
Unlawful Contributions or Other Payments. Neither the Company nor any of its subsidiaries nor, to the best of the Company’s
knowledge, any director, officer, employee or agent of the Company or any subsidiary has (i) used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect
unlawful payment to any foreign or domestic government official or employee from corporate funds; (iii) violated or is in violation
of any provision of the Foreign Corrupt Practices Act of 1977, as amended; or (iv) made any bribe, rebate, payoff, influence payment,
kickback or other unlawful payment.


 


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


 


(z)    Compliance
with OFAC. None of the Company, any of its subsidiaries or, to the knowledge of the Company, any director, officer, agent,
employee or affiliate of the Company or any of its subsidiaries is currently subject to any U.S. sanctions administered by the
Office of Foreign Office Control of the U.S. Department of the Treasury (“OFAC”); and the Company will
not, directly or indirectly, use the proceeds of the offering of the Placement Shares hereunder, or lend, contribute or otherwise
make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing
the activities of any person currently subject to any U.S. sanctions administered by OFAC.


 






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(aa) Company’s
Accounting System. The Company maintains a system of “internal control over financial reporting” (as such term
is defined in Rule 13a-15(f) of the General Rules and Regulations under the Exchange Act (the “Exchange Act Rules”))
that complies in all material respects with the requirements of the Exchange Act and has been designed by their respective principal
executive and principal financial officers, or under their supervision, to provide reasonable assurances 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 U.S. GAAP and to maintain accountability for assets; (iii) access
to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability
for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
The Company’s internal control over financial reporting is effective. Except as described in the Prospectus, since the end
of the Company’s most recent audited fiscal year, there has been (A) no material weakness in the Company’s internal
control over financial reporting (whether or not remediated) and (B) no change in the Company’s internal control over financial
reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over
financial reporting.


 


(bb) Disclosure
Controls. The Company maintains disclosure controls and procedures (as such is defined in Rule 13a-15(e) of the Exchange Act
Rules) that comply in all material respects with the requirements of the Exchange Act; such disclosure controls and procedures
have been designed to ensure that information required to be disclosed by the Company in reports that it files or submit under
the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission’s rules
and forms, including controls and procedures designed to ensure that such information is accumulated and communicated to the Company’s
management to allow timely decisions regarding disclosures. The Company has conducted evaluations of the effectiveness of its
disclosure controls as required by Rule 13a-15 of the Exchange Act.


 


(cc) Compliance
with Environmental Laws. Except as otherwise described in the Prospectus, and except as would not, individually or in the
aggregate, result in a Material Adverse Change (i) neither the Company nor any of its subsidiaries is in violation of any
federal, state, local or foreign law or regulation relating to pollution or protection of human health or the environment (including,
without limitation, ambient air, surface water, groundwater, land surface or subsurface strata) or wildlife, including without
limitation, laws and regulations relating to emissions, discharges, releases or threatened releases of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum and petroleum products (collectively, “Materials
of Environmental Concern”), or otherwise relating to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Materials of Environmental Concern (collectively, “Environmental Laws”),
which violation includes, but is not limited to, noncompliance with any permits or other governmental authorizations required
for the operation of the business of the Company or its subsidiaries under applicable Environmental Laws, or noncompliance with
the terms and conditions thereof, nor has the Company or any of its subsidiaries received any written communication, whether from
a governmental authority, citizens group, employee or otherwise, that alleges that the Company or any of its subsidiaries is in
violation of any Environmental Law; (ii) there is no claim, action or cause of action filed with a court or governmental
authority, no investigation with respect to which the Company has received written notice, and no written notice by any person
or entity alleging potential liability for investigatory costs, cleanup costs, governmental responses costs, natural resources
damages, property damages, personal injuries, attorneys’ fees or penalties arising out of, based on or resulting from the
presence, or release into the environment, of any Material of Environmental Concern at any location owned, leased or operated
by the Company or any of its subsidiaries, now or in the past (collectively, “Environmental Claims”),
pending or, to the Company’s knowledge, threatened against the Company or any of its subsidiaries or any person or entity
whose liability for any Environmental Claim the Company or any of its subsidiaries has retained or assumed either contractually
or by operation of law; and (iii) to the best of the Company’s knowledge, there are no past or present actions, activities,
circumstances, conditions, events or incidents, including, without limitation, the release, emission, discharge, presence or disposal
of any Material of Environmental Concern, that reasonably could result in a violation of any Environmental Law or form the basis
of a potential Environmental Claim against the Company or any of its subsidiaries or against any person or entity whose liability
for any Environmental Claim the Company or any of its subsidiaries has retained or assumed either contractually or by operation
of law.


 






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(dd) Intellectual
Property. The Company and its subsidiaries own or possess the right to use all (i) valid and enforceable patents, patent
applications, trademarks, trademark registrations, service marks, service mark registrations, Internet domain name registrations,
copyrights, copyright registrations, licenses, trade secret rights (“Intellectual Property Rights”)
and (ii) inventions, software, works of authorships, trademarks, service marks, trade names, databases, formulae, know how, Internet
domain names and other intellectual property (including trade secrets and other unpatented and/or unpatentable proprietary confidential
information, systems, or procedures) (collectively, “Intellectual Property Assets”) necessary to conduct
their respective businesses as currently conducted, and as proposed to be conducted as described in the Prospectus, except to
the extent that the failure to own or possess rights to use such Intellectual Property Right or Intellectual Property Assets would
not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Change.  The Company and its
subsidiaries have not received any opinion from their legal counsel concluding that any activities of their respective businesses
infringe or misappropriate valid and enforceable Intellectual Property Rights of any other person, and have not received written
notice of any challenge, which is to their knowledge still pending, by any other person to the rights of the Company  and
its subsidiaries with respect to any Intellectual Property Rights or Intellectual Property Assets owned or used by the Company
or its subsidiaries.  To the knowledge of the Company, the Company and its subsidiaries respective businesses as now conducted
do not give rise to any infringement of, any misappropriation of, or other violation of, any valid and enforceable Intellectual
Property Rights of any other person, except, in either case, to the extent that such infringement, misappropriation, or violation
would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Change.  All licenses
for the use of the Intellectual Property Rights described in the Prospectus are valid, binding upon, and enforceable by or against
the Company and, to the Company’s knowledge, each other party thereto in accordance to their terms, except to the extent
such enforceability may be limited by laws affecting creditors’ rights, equitable remedies or public policy.  The Company
has complied in all material respects with, and is not in material breach nor has received any written notice of any asserted
or threatened claim of material breach of any Intellectual Property license to which the Company is a party, and the Company has
no knowledge of any material breach or anticipated breach by any other person to any Intellectual Property license to which the
Company is a party.  Except as described in the Prospectus, no claim has been made in writing against the Company alleging
the infringement by the Company of any patent, trademark, service mark, trade name, copyright, trade secret, license in or other
intellectual property right or franchise right of any person.  The Company has taken all reasonable steps to protect, maintain
and safeguard its Intellectual Property Rights, including the execution of appropriate nondisclosure and confidentiality agreements. 
The consummation of the transactions contemplated by this Agreement will not result in the loss or impairment of or payment of
any additional amounts with respect to, nor require the consent of any other person in respect of, the Company’s right to
own, use, or hold for use any of the Intellectual Property Rights as owned, used or held for use in the conduct of the business
of the Company as currently conducted.







 


(ee) 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 “Product”), such 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 be expected to have a Material Adverse Change. 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 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 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 Change. 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.


 






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(ff)   Listing.
The Company is subject to and in compliance in all material respects with the reporting requirements of Section 13 or Section
15(d) of the Exchange Act. The Common Stock is registered pursuant to Section 12(b) or Section 12(g) of the Exchange Act and is
listed on Nasdaq, and the Company has taken no action designed to, or reasonably likely to have the effect of, terminating the
registration of the Common Stock under the Exchange Act or delisting the Common Stock from Nasdaq, nor has the Company received
any notification that the Commission or Nasdaq is contemplating terminating such registration or listing.


 


(gg) Brokers.
Except for Cowen, there is no broker, finder or other party that is entitled to receive from the Company any brokerage or finder’s
fee or other fee or commission as a result of any transactions contemplated by this Agreement.


 


(hh) No
Outstanding Loans or Other Indebtedness. Except as described in the Prospectus, there are no outstanding loans, advances (except
normal advances for business expenses in the ordinary course of business) or guarantees or indebtedness by the Company to or for
the benefit of any of the officers or directors of the Company or any of the members of any of them.


 


(ii)   
No Reliance. The Company has not relied upon Cowen or legal counsel for Cowen for any legal, tax or accounting advice
in connection with the offering and sale of the Placement Shares.


 


(jj)    Cowen
Purchases. The Company acknowledges and agrees that Cowen has informed the Company that Cowen may, to the extent permitted
under the Securities Act and the Exchange Act, purchase and sell shares of Common Stock for its own account while this Agreement
is in effect.


 


(kk) Compliance
with Laws. The Company has not been advised, and has no reason to believe, that it and each of its subsidiaries are not conducting
business in compliance with all applicable laws, rules and regulations of the jurisdictions in which it is conducting business,
except where failure to be so in compliance would not result in a Material Adverse Change.


 


Any
certificate signed by an officer of the Company and delivered to Cowen or to counsel for Cowen shall be deemed to be a representation
and warranty by the Company to Cowen as to the matters set forth therein.


 


The
Company acknowledges that Cowen and, for purposes of the opinions to be delivered pursuant to Section 7 hereof, counsel
to the Company and counsel to Cowen, will rely upon the accuracy and truthfulness of the foregoing representations and hereby
consents to such reliance.


 


7.      Covenants
of the Company. The Company covenants and agrees with Cowen that:


 






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(a)    Registration
Statement Amendments. After the date of this Agreement and during any period in which a Prospectus relating to any Placement
Shares is required to be delivered by Cowen under the Securities Act (including in circumstances where such requirement may be
satisfied pursuant to Rule 172 under the Securities Act), (i) the Company will notify Cowen promptly of the time when
any subsequent amendment to the Registration Statement, other than documents incorporated by reference, has been filed with the
Commission and/or has become effective or any subsequent supplement to the Prospectus has been filed and of any request by the
Commission for any amendment or supplement to the Registration Statement or Prospectus or for additional information, (ii) the
Company will prepare and file with the Commission, promptly upon Cowen’s reasonable request, any amendments or supplements
to the Registration Statement or Prospectus that, in Cowen’s reasonable opinion, may be necessary or advisable in connection
with the distribution of the Placement Shares by Cowen (provided, however, that (A) the failure of Cowen to make such request
shall not relieve the Company of any obligation or liability hereunder, or affect Cowen’s right to rely on the representations
and warranties made by the Company in this Agreement, (B) the Company has no obligation to provide Cowen any advance copy
of such filing or to provide Cowen an opportunity to object to such filing if the filing does not name Cowen, does not relate
to the transaction contemplated hereby or is being filed in connection with a separate offering pursuant to the same Registration
Statement and (C) the only remedy Cowen shall have with respect to the failure by the Company to make such filing shall be
to cease making sales under this Agreement until such amendment or supplement is filed); (iii) the Company will not file any amendment
or supplement to the Registration Statement or Prospectus, other than documents incorporated by reference, relating to the Placement
Shares or a security convertible into the Placement Shares unless a copy thereof has been submitted to Cowen within a reasonable
period of time before the filing and Cowen has not reasonably objected thereto (provided, however, that the failure of
Cowen to make such objection shall not relieve the Company of any obligation or liability hereunder, or affect Cowen’s right
to rely on the representations and warranties made by the Company in this Agreement) and the Company will furnish to Cowen at
the time of filing thereof a copy of any document that upon filing is deemed to be incorporated by reference into the Registration
Statement or Prospectus, except for those documents available via EDGAR; and (iv) the Company will cause each amendment or supplement
to the Prospectus, other than documents incorporated by reference, to be filed with the Commission as required pursuant to the
applicable paragraph of Rule 424(b) of the Securities Act.


 


(b)    Notice
of Commission Stop Orders. The Company will advise Cowen, promptly after it receives notice or obtains knowledge thereof,
of the issuance or threatened issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement,
of the suspension of the qualification of the Placement Shares for offering or sale in any jurisdiction, or of the initiation
or threatening of any proceeding for any such purpose; and it will promptly use its commercially reasonable efforts to prevent
the issuance of any stop order or to obtain its withdrawal if such a stop order should be issued.


 


(c)    Delivery
of Prospectus; Subsequent Changes. During any period in which a Prospectus relating to the Placement Shares is required to
be delivered by Cowen under the Securities Act with respect to a pending sale of the Placement Shares, (including in circumstances
where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Company will comply in all material
respects with all requirements imposed upon it by the Securities Act, as from time to time in force, and to file on or before
their respective due dates (which shall include any applicable extensions permissible under the Exchange Act) all reports and
any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Sections 13(a),
13(c), 14, 15(d) or any other provision of or under the Exchange Act. If during such period any event occurs as a result of which
the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading, or if during such
period it is necessary to amend or supplement the Registration Statement or Prospectus to comply with the Securities Act, the
Company will promptly notify Cowen to suspend the offering of Placement Shares during such period and the Company will promptly
amend or supplement the Registration Statement or Prospectus (at the expense of the Company) so as to correct such statement or
omission or effect such compliance, provided, however, that the Company may delay any such amendment or supplement if, in the
sole discretion of the Company, it is in the Company’s best interest to do so.


 






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(d)    Listing
of Placement Shares. During any period in which the Prospectus relating to the Placement Shares is required to be delivered
by Cowen under the Securities Act with respect to a pending sale of the Placement Shares (including in circumstances where such
requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Company will use its commercially reasonable
efforts to cause the Placement Shares to be listed on Nasdaq and to qualify the Placement Shares for sale under the securities
laws of such jurisdictions as Cowen reasonably designates and to continue such qualifications in effect so long as required for
the distribution of the Placement Shares; provided, however, that the Company shall not be required in connection therewith
to qualify as a foreign corporation or dealer in securities or file a general consent to service of process in any jurisdiction.


 


(e)    Delivery
of Registration Statement and Prospectus. The Company will furnish to Cowen and its counsel (at the expense of the Company)
copies of the Registration Statement, the Prospectus (including all documents incorporated by reference therein) and all amendments
and supplements to the Registration Statement or Prospectus that are filed with the Commission during any period in which a Prospectus
relating to the Placement Shares is required to be delivered under the Securities Act (including all documents filed with the
Commission during such period that are deemed to be incorporated by reference therein), in each case as soon as reasonably practicable
and in such quantities as Cowen may from time to time reasonably request and, at Cowen’s request, will also furnish copies
of the Prospectus to each exchange or market on which sales of the Placement Shares may be made; provided, however, that
the Company shall not be required to furnish any document (other than the Prospectus) to Cowen to the extent such document is
available on EDGAR.


 


(f)    
Earnings Statement. The Company will make generally available to its security holders as soon as practicable, but in
any event not later than 15 months after the end of the Company’s current fiscal quarter, an earnings statement covering
a 12-month period that satisfies the provisions of Section 11(a) and Rule 158 of the Securities Act. The Company’s compliance
with the reporting requirements of the Exchange Act shall be deemed to satisfy this Section 7(f).


 


(g)    Expenses.
The Company, whether or not the transactions contemplated hereunder are consummated or this Agreement is terminated, in accordance
with the provisions of Section 11 hereunder, will pay the following expenses all incident to the performance of its obligations
hereunder, including, but not limited to, expenses relating to (i) the preparation, printing and filing of the Registration Statement
and each amendment and supplement thereto, of each Prospectus and of each amendment and supplement thereto, (ii) the preparation,
issuance and delivery of the Placement Shares, (iii) the qualification of the Placement Shares under securities laws in accordance
with the provisions of Section 7(d) of this Agreement, including filing fees (provided, however, that any fees or disbursements
of counsel for Cowen in connection therewith shall be paid by Cowen except as set forth in (vii) below), (iv) the printing and
delivery to Cowen of copies of the Prospectus and any amendments or supplements thereto, and of this Agreement, (v) the fees and
expenses incurred in connection with the listing or qualification of the Placement Shares for trading on Nasdaq, (vi) the filing
fees and expenses, if any, of the Commission, (vii) the filing fees and associated documented legal expenses of Cowen’s
outside counsel for filings with the FINRA Corporate Financing Department, such legal expense reimbursement not to exceed $12,500,
and (viii) the reasonable documented fees and disbursements of Cowen’s counsel in an amount not to exceed $50,000, provided,
however, in no event shall the total compensation paid to Cowen exceed 8.0% of the gross proceeds to the Company from the sale
of Placement Shares.


 






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(h)    
Use of Proceeds. The Company will use the Net Proceeds as described in the Prospectus in the section entitled “Use
of Proceeds.”


 


(i)     
Notice of Other Sales. During the pendency of any Placement Notice given hereunder, and for three trading days following
the termination of any Placement Notice given hereunder, the Company shall provide Cowen notice as promptly as reasonably practicable
before it offers to sell, contracts to sell, sells, grants any option to sell or otherwise disposes of any shares of Common Stock
(other than Placement Shares offered pursuant to the provisions of this Agreement) or securities convertible into or exchangeable
for Common Stock, warrants or any rights to purchase or acquire Common Stock; provided, that such notice shall not be required
in connection with the (i) issuance, grant or sale of Common Stock, options to purchase shares of Common Stock or Common Stock
issuable upon the exercise of options, vesting of restricted stock units or other equity awards pursuant to the any stock option,
stock bonus or other stock plan or arrangement, whether currently in effect or hereinafter adopted, as described in the Prospectus,
(ii) the issuance of securities in connection with an acquisition, merger or sale or purchase of assets or (iii) the issuance
or sale of Common Stock pursuant to any dividend reinvestment plan that the Company may adopt from time to time provided the implementation
of such is disclosed to Cowen in advance or (iv) any shares of common stock issuable upon the exchange, conversion or redemption
of securities or the exercise of warrants, options or other rights in effect or outstanding.


 


(j)     Change
of Circumstances. The Company will, at any time during a fiscal quarter in which the Company intends to tender a Placement
Notice or sell Placement Shares, advise Cowen promptly after it shall have received notice or obtained knowledge thereof, of any
information or fact that would alter or affect in any material respect any opinion, certificate, letter or other document provided
to Cowen pursuant to this Agreement.


 


(k)    Due
Diligence Cooperation. The Company will cooperate with any reasonable due diligence review conducted by Cowen or its agents
in connection with the transactions contemplated hereby, including, without limitation, providing information and making available
documents and senior corporate officers, during regular business hours and at the Company’s principal offices, as Cowen
may reasonably request, provided, however, that such review shall not unreasonably interfere with the Company’s operations.


 


(l)    
Required Filings Relating to Placement of Placement Shares. The Company agrees that on such dates as the Securities
Act shall require, the Company will (i) file a prospectus supplement with the Commission under the applicable paragraph of
Rule 424(b) under the Securities Act (each and every filing under Rule 424(b), a “Filing Date”), which
prospectus supplement will set forth, within the relevant period, the amount of Placement Shares sold through Cowen, the Net Proceeds
to the Company and the compensation payable by the Company to Cowen with respect to such Placement Shares (provided that the Company
may satisfy its obligations under this Section 7(l)(i) by effecting a filing in accordance with the Exchange Act with respect
to such information), and (ii) deliver such number of copies of each such prospectus supplement to each exchange or market on
which such sales were effected as may be required by the rules or regulations of such exchange or market.


 






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(m) Representation
Dates; Certificate. On or prior to the First Delivery Date and each time the Company (i) files the Prospectus relating to
the Placement Shares or amends or supplements the Registration Statement or the Prospectus relating to the Placement Shares (other
than a prospectus supplement filed in accordance with Section 7(l) of this Agreement or a prospectus supplement relating solely
to an offering of securities other than the Placement Shares) by means of a post-effective amendment, sticker, or supplement but
not by means of incorporation of document(s) by reference to the Registration Statement or the Prospectus relating to the Placement
Shares; (ii) files an annual report on Form 10-K under the Exchange Act; (iii) files its quarterly reports on Form 10-Q under
the Exchange Act; or (iv) files a report on Form 8-K containing amended financial information that are material in nature (other
than information that is “furnished” pursuant to Items 2.02, 7.01 or 8.01 of Form 8-K) under the Exchange Act (each
date of filing of one or more of the documents referred to in clauses (i) through (iv) shall be a “Representation
Date”); the Company shall furnish Cowen with a certificate, in the form attached hereto as Exhibit 7(m) within
three (3) Trading Days of any Representation Date if requested by Cowen. The requirement to provide a certificate under this Section
7(m) shall be waived for any Representation Date occurring at a time at which no Placement Notice is pending, which waiver shall
continue until the earlier to occur of the date the Company delivers a Placement Notice hereunder (which for such calendar quarter
shall be considered a Representation Date) and the next occurring Representation Date; provided, however, that such
waiver shall not apply for any Representation Date on which the Company files its annual report on Form 10-K. Notwithstanding
the foregoing, if the Company subsequently decides to sell Placement Shares following a Representation Date when the Company relied
on such waiver and did not provide Cowen with a certificate under this Section 7(m), then before the Company delivers the
Placement Notice or Cowen sells any Placement Shares, the Company shall provide Cowen with a certificate, in the form attached
hereto as Exhibit 7(m), dated the date of the Placement Notice.


 


(n)    Legal
Opinion. On or prior to the First Delivery Date and within three (3) Trading Days of each Representation Date with respect
to which the Company is obligated to deliver a certificate in the form attached hereto as Exhibit 7(m) for which no waiver
is applicable, the Company shall cause to be furnished to Cowen a written opinion of Sichenzia Ross Friedman Ference LLP (“Company
Counsel”), or other counsel satisfactory to Cowen, in form and substance reasonably satisfactory to Cowen and its counsel,
dated the date that the opinion is required to be delivered; provided, however, that in lieu of such opinions for
subsequent Representation Dates, counsel may furnish Cowen with a letter (a “Reliance Letter”) to the
effect that Cowen may rely on a prior opinion delivered under this Section 7(n) to the same extent as if it were dated
the date of such letter (except that statements in such prior opinion shall be deemed to relate to the Registration Statement
and the Prospectus as amended or supplemented at such Representation Date).


 






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(o)   Comfort
Letter. On or prior to the First Delivery Date and within three (3) Trading Days of each Representation Date with respect
to which the Company is obligated to deliver a certificate in the form attached hereto as Exhibit 7(m) for which no waiver
is applicable, the Company shall cause its independent accountants to furnish Cowen letters (the “Comfort Letters”),
dated the date the Comfort Letter is delivered, in form and substance satisfactory to Cowen, (i) confirming that they are an independent
registered public accounting firm within the meaning of the Securities Act and the PCAOB, (ii) stating, as of such date, the conclusions
and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’
“comfort letters” to Cowen in connection with registered public offerings (the first such letter, the “Initial
Comfort Letter”) and (iii) updating the Initial Comfort Letter with any information that would have been included
in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement
and the Prospectus, as amended and supplemented to the date of such letter.


 


(p)    Market
Activities. The Company will not, directly or indirectly, (i) take any action designed to cause or result in, or that constitutes
or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Placement Shares or (ii) sell, bid for, or purchase the Placement Shares, or pay anyone any
compensation for soliciting purchases of the Placement Shares other than Cowen; provided, however, that the Company may bid for
and purchase shares of its common stock in accordance with Rule 10b-18 under the Exchange Act.


 


(q)    Insurance.
The Company and its subsidiaries shall maintain, or cause to be maintained, insurance in such amounts and covering such risks
as is reasonable and customary for the business for which it is engaged.


 


(r)    Compliance
with Laws. The Company and each of its subsidiaries shall maintain, or cause to be maintained, all material environmental
permits, licenses and other authorizations required by federal, state and local law in order to conduct their businesses as described
in the Prospectus, and the Company and each of its subsidiaries shall conduct their businesses, or cause their businesses to be
conducted, in substantial compliance with such permits, licenses and authorizations and with applicable environmental laws, except
where the failure to maintain or be in compliance with such permits, licenses and authorizations could not reasonably be expected
to result in a Material Adverse Change.


 


(s)    Investment
Company Act. The Company will conduct its affairs in such a manner so as to reasonably ensure that neither it nor its subsidiaries
will be or become, at any time prior to the termination of this Agreement, an “investment company,” as such term is
defined in the Investment Company Act, assuming no change in the Commission’s current interpretation as to entities that
are not considered an investment company.


 


(t)    
Securities Act and Exchange Act. The Company will use its reasonable efforts to comply in all material respects with
the requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary
to permit the continuance of sales of, or dealings in, the Placement Shares as contemplated by the provisions hereof and the Prospectus.


 






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(u)    No
Offer to Sell. Other than a free writing prospectus (as defined in Rule 405 under the Securities Act) approved in advance
by the Company and Cowen in its capacity as principal or agent hereunder, neither Cowen nor the Company (including its agents
and representatives, other than Cowen in its capacity as such) will make, use, prepare, authorize, approve or refer to any written
communication (as defined in Rule 405 under the Securities Act), required to be filed with the Commission, that constitutes an
offer to sell or solicitation of an offer to buy Common Stock hereunder.


 


(v)    Sarbanes-Oxley
Act. The Company and its subsidiaries will use their reasonable efforts to comply in all material respects with the effective
applicable provisions of the Sarbanes-Oxley Act.


 


8.      Conditions
to Cowen’s Obligations. The obligations of Cowen hereunder with respect to a Placement will be subject to the continuing
accuracy and completeness in all material respects of the representations and warranties made by the Company herein, to the due
performance by the Company of its obligations hereunder, to the completion by Cowen of a due diligence review satisfactory to
Cowen in its reasonable judgment, and to the continuing satisfaction (or waiver by Cowen in its sole discretion) of the following
additional conditions:


 


(a)    Registration
Statement Effective. The Registration Statement shall be effective and shall be available for the sale of all Placement Shares
contemplated to be issued by any Placement Notice.


 


(b)    No
Material Notices. None of the following events shall have occurred and be continuing: (i) receipt by the Company or any of
its subsidiaries of any request for additional information from the Commission or any other federal or state governmental authority
during the period of effectiveness of the Registration Statement, the response to which would require any post-effective amendments
or supplements to the Registration Statement or the Prospectus; (ii) the issuance by the Commission or any other federal
or state governmental authority of any stop order suspending the effectiveness of the Registration Statement or the initiation
of any proceedings for that purpose; (iii) receipt by the Company of any notification with respect to the suspension of the qualification
or exemption from qualification of any of the Placement Shares for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose; or (iv) the occurrence of any event that makes any material statement made in the Registration
Statement or the Prospectus or any material document incorporated or deemed to be incorporated therein by reference untrue in
any material respect or that requires the making of any changes in the Registration Statement, related Prospectus or such documents
so that, in the case of the Registration Statement, it will not contain any materially untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and,
that in the case of the Prospectus, it will not contain any materially untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under
which they were made, not misleading.


 


(c)    No
Misstatement or Material Omission. Cowen shall not have advised the Company that the Registration Statement or Prospectus,
or any amendment or supplement thereto, contains an untrue statement of fact that in Cowen’s reasonable opinion is material,
or omits to state a fact that in Cowen’s reasonable opinion is material and is required to be stated therein or is necessary
to make the statements therein not misleading.


 






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(d)    Material
Changes. Except as contemplated in the Prospectus, or disclosed in the Company’s reports filed with the Commission,
there shall not have been any material adverse change, on a consolidated basis, in the authorized capital stock of the Company
or any Material Adverse Change or any development that would reasonably be expected to result in a Material Adverse Change, the
effect of which, in the reasonable judgment of Cowen (without relieving the Company of any obligation or liability it may otherwise
have), is so material as to make it impracticable or inadvisable to proceed with the offering of the Placement Shares on the terms
and in the manner contemplated in the Prospectus.


 


(e)    Company
Counsel Legal Opinion. Cowen shall have received the opinions of Company Counsel required to be delivered pursuant to Section
7(n) on or before the date on which such delivery of such opinion is required pursuant to Section 7(n).


 


(f)      Cowen
Counsel Legal Opinion. Cowen shall have received from Duane Morris LLP, counsel for Cowen, such opinion or opinions, on or
before the date on which the delivery of the Company Counsel legal opinion is required pursuant to Section 7(n), with respect
to such matters as Cowen may reasonably require, and the Company shall have furnished to such counsel such documents as they request
for enabling them to pass upon such matters.


 


(g)    Comfort
Letter. Cowen shall have received the Comfort Letter required to be delivered pursuant to Section 7(o) on or before
the date on which such delivery of such Comfort Letter is required pursuant to Section 7(o).


 


(h)    Representation
Certificate. Cowen shall have received the certificate required to be delivered pursuant to Section 7(m) on or
before the date on which delivery of such certificate is required pursuant to Section 7(m).


 


(i)    
Secretary’s Certificate. On or prior to the First Delivery Date, Cowen shall have received a certificate, signed
on behalf of the Company by its corporate Secretary, in form and substance reasonably satisfactory to Cowen and its counsel.


 


(j)     No
Suspension. Trading in the Common Stock shall not have been suspended on Nasdaq.


 


(k)   Other
Materials. On each date on which the Company is required to deliver a certificate pursuant to Section 7(m), the Company
shall have furnished to Cowen such appropriate further information, certificates and documents as Cowen may have reasonably requested.
All such opinions, certificates, letters and other documents shall have been in compliance with the provisions hereof. The Company
will furnish Cowen with such conformed copies of such opinions, certificates, letters and other documents as Cowen shall have
reasonably requested.


 


(l)     Securities
Act Filings Made. All filings with the Commission required by Rule 424 under the Securities Act to have been filed prior to
the issuance of any Placement Notice hereunder shall have been made within the applicable time period prescribed for such filing
by Rule 424.


 






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(m)   Approval
for Listing. The Placement Shares shall either have been (i) approved for listing on Nasdaq, subject only to notice of issuance,
or (ii) the Company shall have filed an application for listing of the Placement Shares on Nasdaq at, or prior to, the issuance
of any Placement Notice.


 


(n)    No
Termination Event. There shall not have occurred any event that would permit Cowen to terminate this Agreement pursuant to
Section 11(a).


 


9.      Indemnification
and Contribution.


 


(a)    Company
Indemnification. The Company agrees to indemnify and hold harmless Cowen, the directors, officers, partners, employees and
agents of Cowen and each person, if any, who (i) controls Cowen within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act, or (ii) is controlled by or is under common control with Cowen (a “Cowen Affiliate”)
from and against any and all losses, claims, liabilities, expenses and damages (including, but not limited to, any and all reasonable
investigative, legal and other expenses incurred in connection with, and any and all amounts paid in settlement (in accordance
with Section 9(c)) of, any action, suit or proceeding between any of the indemnified parties and any indemnifying parties
or between any indemnified party and any third party, or otherwise, or any claim asserted), as and when incurred, to which Cowen,
or any such person, may become subject under the Securities Act, the Exchange Act or other federal or state statutory law or regulation,
at common law or otherwise, insofar as such losses, claims, liabilities, expenses or damages arise out of or are based, directly
or indirectly, on (x) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement
or the Prospectus or any amendment or supplement to the Registration Statement or the Prospectus or in any free writing prospectus
or in any application or other document executed by or on behalf of the Company or based on written information furnished by or
on behalf of the Company filed in any jurisdiction in order to qualify the Common Stock under the securities laws thereof or filed
with the Commission, or (y) the omission or alleged omission to state in any such document a material fact required to be stated
in it or necessary to make the statements in it not misleading; provided, however, that this indemnity agreement
shall not apply to the extent that such loss, claim, liability, expense or damage arises from the sale of the Placement Shares
pursuant to this Agreement and is caused directly or indirectly by an untrue statement or omission made in reliance upon and in
conformity with the Agent’s Information. This indemnity agreement will be in addition to any liability that the Company
might otherwise have.


 


(b)    Cowen
Indemnification. Cowen agrees to indemnify and hold harmless the Company and its directors and each officer of the Company
that signed the Registration Statement, and each person, if any, who (i) controls the Company within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act or (ii) is controlled by or is under common control with the Company
(a “Company Affiliate”) against any and all loss, liability, claim, damage and expense described in
the indemnity contained in Section 9(a), as incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any amendments thereto) or the Prospectus (or any amendment
or supplement thereto) in reliance upon and in conformity with the Agent’s Information.


 






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(c)    Procedure.
Any party that proposes to assert the right to be indemnified under this Section 9 will, promptly after receipt of notice
of commencement of any action against such party in respect of which a claim is to be made against an indemnifying party or parties
under this Section 9, notify each such indemnifying party of the commencement of such action, enclosing a copy of all papers
served, but the omission so to notify such indemnifying party will not relieve the indemnifying party from (i) any liability that
it might have to any indemnified party otherwise than under this Section 9 and (ii) any liability that it may have to any
indemnified party under the foregoing provision of this Section 9 unless, and only to the extent that, such omission results
in the forfeiture of substantive rights or defenses by the indemnifying party. If any such action is brought against any indemnified
party and it notifies the indemnifying party of its commencement, the indemnifying party will be entitled to participate in and,
to the extent that it elects by delivering written notice to the indemnified party promptly after receiving notice of the commencement
of the action from the indemnified party, jointly with any other indemnifying party similarly notified, to assume the defense
of the action, with counsel reasonably satisfactory to the indemnified party, and after notice from the indemnifying party to
the indemnified party of its election to assume the defense, the indemnifying party will not be liable to the indemnified party
for any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred
by the indemnified party in connection with the defense. The indemnified party will have the right to employ its own counsel in
any such action, but the fees, expenses and other charges of such counsel will be at the expense of such indemnified party unless
(1) the employment of counsel by the indemnified party has been authorized in writing by the indemnifying party, (2) the indemnified
party has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other indemnified
parties that are different from or in addition to those available to the indemnifying party, (3) a conflict or potential conflict
exists (based on advice of counsel to the indemnified party) between the indemnified party and the indemnifying party (in which
case the indemnifying party will not have the right to direct the defense of such action on behalf of the indemnified party) or
(4) the indemnifying party has not in fact employed counsel to assume the defense of such action within a reasonable time after
receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges
of counsel will be at the expense of the indemnifying party or parties. It is understood that the indemnifying party or parties
shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm admitted to practice in such jurisdiction at any one time for all
such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the indemnifying party
promptly as they are incurred. An indemnifying party will not, in any event, be liable for any settlement of any action or claim
effected without its written consent. No indemnifying party shall, without the prior written consent of each indemnified party,
settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding relating
to the matters contemplated by this Section 9 (whether or not any indemnified party is a party thereto), unless such settlement,
compromise or consent includes an unconditional release of each indemnified party from all liability arising or that may arise
out of such claim, action or proceeding.


 






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(d)    Contribution.
In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in the foregoing
paragraphs of this Section 9 is applicable in accordance with its terms but for any reason is held to be unavailable from
the Company or Cowen, the Company and Cowen will contribute to the total losses, claims, liabilities, expenses and damages (including
any investigative, legal and other expenses reasonably incurred in connection with, and any amount paid in settlement of, any
action, suit or proceeding or any claim asserted, but after deducting any contribution received by the Company from persons other
than Cowen, such as persons who control the Company within the meaning of the Securities Act, officers of the Company who signed
the Registration Statement and directors of the Company, who also may be liable for contribution) to which the Company and Cowen
may be subject in such proportion as shall be appropriate to reflect the relative benefits received by the Company on the one
hand and Cowen on the other. The relative benefits received by the Company on the one hand and Cowen on the other hand shall be
deemed to be in the same proportion as the total Net Proceeds from the sale of the Placement Shares (before deducting expenses)
received by the Company bear to the total compensation received by Cowen from the sale of Placement Shares on behalf of the Company.
If, but only if, the allocation provided by the foregoing sentence is not permitted by applicable law, the allocation of contribution
shall be made in such proportion as is appropriate to reflect not only the relative benefits referred to in the foregoing sentence
but also the relative fault of the Company, on the one hand, and Cowen, on the other, with respect to the statements or omission
that resulted in such loss, claim, liability, expense or damage, or action in respect thereof, as well as any other relevant equitable
considerations with respect to such offering. Such relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to
information supplied by the Company or Cowen, the intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and Cowen agree that it would not be just and equitable
if contributions pursuant to this Section 9(d) were to be determined by pro rata allocation or by any other method of allocation
that does not take into account the equitable considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, liability, expense, or damage, or action in respect thereof, referred to above in this Section
9(d) shall be deemed to include, for the purpose of this Section 9(d), any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such action or claim to the extent consistent with
Section 9(c) hereof. Notwithstanding the foregoing provisions of this Section 9(d), Cowen shall not be required
to contribute any amount in excess of the commissions received by it under this Agreement and no person found guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) will be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes of this Section 9(d), any person who controls a party
to this Agreement within the meaning of the Securities Act, and any officers, directors, partners, employees or agents of Cowen,
will have the same rights to contribution as that party, and each officer of the Company who signed the Registration Statement
will have the same rights to contribution as the Company, subject in each case to the provisions hereof. Any party entitled to
contribution, promptly after receipt of notice of commencement of any action against such party in respect of which a claim for
contribution may be made under this Section 9(d), will notify any such party or parties from whom contribution may be sought,
but the omission to so notify will not relieve that party or parties from whom contribution may be sought from any other obligation
it or they may have under this Section 9(d) except to the extent that the failure to so notify such other party materially
prejudiced the substantive rights or defenses of the party from whom contribution is sought. Except for a settlement entered into
pursuant to the last sentence of Section 9(c) hereof, no party will be liable for contribution with respect to any action
or claim settled without its written consent if such consent is required pursuant to Section 9(c) hereof.


 






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10.     Representations
and Agreements to Survive Delivery. The indemnity and contribution agreements contained in Section 9 of this Agreement
and all representations and warranties of the Company herein or in certificates delivered pursuant hereto shall survive, as of
their respective dates, regardless of (i) any investigation made by or on behalf of Cowen, any controlling persons, or the Company
(or any of their respective officers, directors or controlling persons), (ii) delivery and acceptance of the Placement Shares
and payment therefor or (iii) any termination of this Agreement.


 


11.     Termination.


 


(a)   Cowen
shall have the right by giving notice in writing as hereinafter specified at any time to terminate this Agreement if (i) any Material
Adverse Change, or any development that could reasonably be expected to result in a Material Adverse Change has occurred that,
in the reasonable judgment of Cowen, may materially impair the ability of Cowen to sell the Placement Shares hereunder, (ii) the
Company shall have failed, refused or been unable to perform any agreement on its part when required to be performed hereunder;
provided, however, in the case of any failure of the Company to deliver (or cause another person to deliver) any certification,
opinion, or letter required under Sections 7(m), 7(n), or 7(o), Cowen’s right to terminate shall
not arise unless such failure to deliver (or cause to be delivered) continues for more than thirty (30) days from the date such
delivery was required; or (iii) any other condition of Cowen’s obligations hereunder is not fulfilled and at least
ten (10) days have passed since Cowen has provided the Company with written notice that such condition has not been satisfied,
or (iv), any suspension or limitation of trading in the Placement Shares or in securities generally on Nasdaq shall have occurred.
Any such termination shall be without liability of any party to any other party except that the provisions of Section 7(g)
(Expenses), Section 9 (Indemnification and Contribution), Section 10 (Representations and Agreements to Survive
Delivery), Section 16 (Applicable Law; Consent to Jurisdiction) and Section 17 (Waiver of Jury Trial) hereof shall
remain in full force and effect notwithstanding such termination. If Cowen elects to terminate this Agreement as provided in this
Section 11(a), Cowen shall provide the required notice as specified in Section 12 (Notices).


 


(b)    The
Company shall have the right, by giving ten (10) days notice as hereinafter specified to terminate this Agreement in its sole
discretion at any time after the date of this
Agreement. Any such termination
shall be without liability of any party to any other party except that the provisions of Section 7(g), Section 9,
Section 10, Section 16 and Section 17 hereof shall remain in full force and effect notwithstanding such termination.


 


(c)    Cowen
shall have the right, by giving ten (10) days notice as hereinafter specified to terminate this Agreement in its sole discretion
at any time after the date of this Agreement.
Any such termination shall be without liability of any party to any other party except that the provisions of Section 7(g),
Section 9, Section 10, Section 16 and Section 17 hereof shall remain in full force and effect notwithstanding
such termination.


 






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(d)     Unless
earlier terminated pursuant to this Section 11, this Agreement shall automatically terminate upon the issuance and sale
of all of the Placement Shares through Cowen on the terms and subject to the conditions set forth herein; provided that
the provisions of Section 7(g), Section 9, Section 10, Section 16 and Section 17 hereof shall
remain in full force and effect notwithstanding such termination.


 


(e)     This
Agreement shall remain in full force and effect unless terminated pursuant to Sections 11(a), (b), (c), or (d)
above or otherwise by mutual agreement of the parties; provided, however, that any such termination by mutual agreement
shall in all cases be deemed to provide that Section 7(g), Section 9, Section 10, Section 16 and Section
17 shall remain in full force and effect.


 


(f) Any
termination of this Agreement shall be effective on the date specified in such notice of termination; provided, however,
that such termination shall not be effective until the close of business on the date of receipt of such notice by Cowen or the
Company, as the case may be. If such termination shall occur prior to the Settlement Date for any sale of Placement Shares, such
Placement Shares shall settle in accordance with the provisions of this Agreement.


 


12.     Notices.
All notices or other communications required or permitted to be given by any party to any other party pursuant to the terms of
this Agreement shall be in writing, unless otherwise specified in this Agreement, and if sent to Cowen, shall be delivered to
Cowen at Cowen and Company, LLC, 599 Lexington Avenue, New York, NY 10022, fax no. 646-562-1124, Attention: General Counsel with
a copy to Duane Morris LLP, attention: James T. Seery, e-mail jtseery@duanemorris.com; or if sent to the Company, shall
be delivered to Tonix Pharmaceuticals Holding Corp., 509 Madison Avenue, Suite 306, New York, New York attention: Chief Executive
Officer, e-mail: seth.lederman@tonixpharma.com with a copy to Sichenzia Ross Friedman Ference LLP, attention: Marc J. Ross, Esq.,
e-mail: mross@srff.com. Each party to this Agreement may change such address for notices by sending to the parties to this Agreement
written notice of a new address for such purpose. Each such notice or other communication shall be deemed given (i) when delivered
personally or by verifiable facsimile transmission (with an original to follow) on or before 4:30 p.m., New York City time, on
a Business Day (as defined below), or, if such day is not a Business Day on the next succeeding Business Day, (ii) on the next
Business Day after timely delivery to a nationally-recognized overnight courier and (iii) on the Business Day actually
received if deposited in the U.S. mail (certified or registered mail, return receipt requested, postage prepaid). For purposes
of this Agreement, “Business Day” shall mean any day on which the Nasdaq and commercial banks in the
City of New York are open for business.


 


13.     Successors
and Assigns. This Agreement shall inure to the benefit of and be binding upon the Company and Cowen and their respective successors
and the affiliates, controlling persons, officers and directors referred to in Section 9 hereof. References to any of the
parties contained in this Agreement shall be deemed to include the successors and permitted assigns of such party. Nothing in
this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors
and permitted assigns any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly
provided in this Agreement. Neither party may assign its rights or obligations under this Agreement without the prior written
consent of the other party; provided, however, that Cowen may assign its rights and obligations hereunder to an
affiliate of Cowen without obtaining the Company’s consent.


 






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14.    Adjustments
for Share Splits. The parties acknowledge and agree that all share-related numbers contained in this Agreement shall be adjusted
to take into account any share split, share dividend or similar event effected with respect to the Common Stock.


 


15.     Entire
Agreement; Amendment; Severability. This Agreement (including all schedules and exhibits attached hereto and Placement Notices
issued pursuant hereto) constitutes the entire agreement and supersedes all other prior and contemporaneous agreements and undertakings,
both written and oral, among the parties hereto with regard to the subject matter hereof. Neither this Agreement nor any term
hereof may be amended except pursuant to a written instrument executed by the Company and Cowen. In the event that any one or
more of the provisions contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable
as written by a court of competent jurisdiction, then such provision shall be given full force and effect to the fullest possible
extent that it is valid, legal and enforceable, and the remainder of the terms and provisions herein shall be construed as if
such invalid, illegal or unenforceable term or provision was not contained herein, but only to the extent that giving effect to
such provision and the remainder of the terms and provisions hereof shall be in accordance with the intent of the parties as reflected
in this Agreement.


 


16.     Applicable
Law; Consent to Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the internal laws of
the State of New York without regard to the principles of conflicts of laws. Each party hereby irrevocably submits to the non-exclusive
jurisdiction of the state and federal courts sitting in the City of New York, borough of Manhattan, for the adjudication of any
dispute hereunder or in connection with any transaction contemplated hereby, and hereby irrevocably waives, and agrees not to
assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that
such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper.
Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action
or proceeding by mailing a copy thereof (certified or registered mail, return receipt requested) to such party at the address
in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of
process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner
permitted by law.


 


17.     Waiver
of Jury Trial. The Company and Cowen each hereby irrevocably waives any right it may have to a trial by jury in respect of
any claim based upon or arising out of this Agreement or any transaction contemplated hereby.


 


18.     Absence
of Fiduciary Relationship. The Company acknowledges and agrees that:


 


(a)   
Cowen has been retained solely to act as sales agent in connection with the sale of the Placement Shares and that no fiduciary,
advisory or agency relationship between the Company and Cowen has been created in respect of any of the transactions contemplated
by this Agreement, irrespective of whether Cowen has advised or is advising the Company on other matters;


 






    -25-


     


    

  


(b)    the
Company is capable of evaluating and understanding and understands and accepts the terms, risks and conditions of the transactions
contemplated by this Agreement;


 


(c)    the
Company has been advised that Cowen and its affiliates are engaged in a broad range of transactions which may involve interests
that differ from those of the Company and that Cowen has no obligation to disclose such interests and transactions to the Company
by virtue of any fiduciary, advisory or agency relationship; and


 


(d)   the
Company waives, to the fullest extent permitted by law, any claims it may have against Cowen, for breach of fiduciary duty or
alleged breach of fiduciary duty and agrees that Cowen shall have no liability (whether direct or indirect) to the Company in
respect of such a fiduciary claim or to any person asserting a fiduciary duty claim on behalf of or in right of the Company, including
stockholders, partners, employees or creditors of the Company.


 


19.     Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument. In the event that any signature is delivered by facsimile transmission or by an
e-mail which contains a portable document format (.pdf) file of an executed signature page, such signature page 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 signature page were an original thereof.


 


20.    
Definitions. As used in this Agreement, the following term has the meaning set forth below:


 


(a)    “Agent’s
Information” means, solely the following information in the Prospectus: the third sentence in the eighth paragraph under
the caption “Plan of Distribution” in the Prospectus.


 


 


[Remainder
of Page Intentionally Blank]


 


 


 




    -26-


     


    

 


If
the foregoing correctly sets forth the understanding between the Company and Cowen, please so indicate in the space provided below
for that purpose, whereupon this letter shall constitute a binding agreement between the Company and Cowen.


 





	 	Very truly yours,
	 	 	 
	 	COWEN AND COMPANY,
    LLC
	 	 	 
	 	 	 
	 	By: 	/s/ ROBERT SINE
	 	Name:	Robert Sine
	 	Title:	Managing Director
	 	 	 
	 	 	 
	 	ACCEPTED as
    of the date
	 	first-above
    written:
	 	 	 
	 	TONIX PHARMACEUTICALS
    HOLDING CORP.
	 	 	 
	 	 	 
	 	By: 	/s/
    Bradley Saenger
	 	Name:	Bradley Saenger
	 	Title:	Chief Financial Officer







 






    -27-


     


    




 


SCHEDULE
1


 


form
of PLACEMENT NOTICE


 





	From:	[                              ]
	Cc:	[                              ]
	To:	[                              ]
	Subject:	Cowen At
    the Market Offering—Placement Notice
	Date:	_______________,
    20___







 





Gentlemen:


 


Pursuant
to the terms and subject to the conditions contained in the Sales Agreement between Tonix Pharmaceuticals Holding Corp. (the “Company”),
and Cowen and Company, LLC (“Cowen”) dated April 28, 2016 (the “Agreement”), I hereby request
on behalf of the Company that Cowen sell up to [ ] shares of the Company’s common stock, par value $0.001 per share, at
a minimum market price of $_______ per share. Sales should begin on the date of this Notice and shall continue until [DATE] [all
shares are sold] [and Company to include other terms and conditions related to the sale of such shares].


 


 


 




    


     


    

SCHEDULE
2


 


 


 


Notice
Parties


 





	The
    Company	 	 
	 	 	 
	Seth
    Lederman	Chief
    Executive Officer	seth.lederman@tonixpharma.com
	Bradley
    Saenger	Chief
    Financial Officer	bradley.saenger@tonixpharma.com
	 	 	 
	 	 	 
	Cowen	 	 
	 	 	 
	Robert
    Sine	Managing
    Director	robert.sine@cowen.com
	William
    Follis	Director	william.follis@cowen.com










 






    


     


    

 


SCHEDULE
3


 


 


Compensation


 


Cowen
shall be paid compensation equal to 3.0% of the gross proceeds from the sales of Placement Shares pursuant to the terms of this
Agreement.


 


 


 




    


     


    

 


Exhibit
7(m) 


 


 


 


OFFICER
CERTIFICATE


 


 


The
undersigned, the duly qualified and elected _______________________, of Tonix Pharmaceuticals Holding Corp. (“Company”),
a Nevada corporation, does hereby certify in such capacity and on behalf of the Company, pursuant to Section 7(m) of the
Sales Agreement dated April 28, 2016 (the “Sales Agreement”) between the Company and Cowen and
Company, LLC, that to the best of the knowledge of the undersigned. Capitalized terms used herein but not otherwise defined shall
have the meanings ascribed to them in the Sales Agreement.


 


(i)The
representations and warranties of the Company in Section 6 of the Sales Agreement (A) to the extent such representations
and warranties are subject to qualifications and exceptions contained therein relating to materiality or Material Adverse Change,
are true and correct on and as of the date hereof with the same force and effect as if expressly made on and as of the date hereof,
except for those representations and warranties that speak solely as of a specific date and which were true and correct as of
such date, and (B) to the extent such representations and warranties are not subject to any qualifications or exceptions, are
true and correct in all material respects as of the date hereof as if made on and as of the date hereof with the same force and
effect as if expressly made on and as of the date hereof except for those representations and warranties that speak solely as
of a specific date and which were true and correct as of such date; and


 


(ii)The
Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied pursuant to the
Sales Agreement at or prior to the date hereof.


 





	 	 
	 	By: 	 
	 	 	Name:
	 	 	Title:
	Date: