EXHIBIT 10.1


 


SUBSCRIPTION AGREEMENT


 


AmpliPhi Biosciences Corporation


4870 Sadler Road, Suite 300


Glen Allen, Virginia 23060


Attn: Jeremy Curnock Cook


 


Ladies and Gentlemen:


 


sECTION
1.        Issuance
of Common Stock and Warrants.


 


1.1           Stock
and Warrant Subscription. The undersigned (the “Purchaser”), intending to be legally bound, hereby irrevocably
agrees to purchase from AmpliPhi Biosciences Corporation, a Washington corporation (the “Company”), (a) such
number of shares of the Company’s Common Stock (“Common Stock”) set forth opposite such Purchaser’s
name on Exhibit A (all of the shares of Common being purchased in the Offering being referred to herein as the “Shares”)
for a purchase price per share of $0.165 (the “Purchase Price”), and (b) a warrant representing the right to
purchase that number of shares of Common Stock equal to twenty five percent (25%) of the number of shares of Common Stock being
purchased by the Purchaser on the Closing Date (subject to adjustment to reflect forward or reverse stock splits, stock dividends,
recapitalizations and the like) at a per share exercise price equal to $0.215 in the form attached hereto as Exhibit B (each
such warrant, a “Warrant” and collectively, the “Warrants”) for the aggregate consideration
set forth on Exhibit A hereof (the “Subscription Amount”).


 


1.2           Offering.
This subscription is submitted to you in accordance with and subject to the terms and conditions described in this Subscription
Agreement (this “Agreement” or this “Subscription Agreement”). The Company is offering (the
“Offering”) an aggregate of 78,787,880 shares of Common Stock and Warrants to purchase an aggregate of 19,696,971
shares of Common Stock (together, the “Offered Securities”).


 


1.3           Payment.
The Purchaser may purchase the Offered Securities with cash or other immediately available funds equal to the Subscription Amount.
In order to complete the Purchaser’s subscription hereunder, the Purchaser shall deliver a completed and executed Signature
Page to this Subscription Agreement together with a check for, or wire transfer of, the Subscription Amount.


 


sECTION
2.        Closing.


 


The closing of the purchase
and sale of Offered Securities hereunder (the “Closing”) shall be held as soon as practicable after the date
of this Agreement, and in any event within five business days of the date of this Agreement, at such place as is mutually agreeable
to the Company and each Purchaser identified on Exhibit A hereto (the “Closing Date”). At the Closing:


 


(a)          Each
Purchaser, severally and not jointly, shall wire funds in the amount set forth opposite such Purchaser’s name on Exhibit
A directly to the Company’s account in accordance with the wire instructions below; and


 




    	 



    	 



    

 


(b)          the
Company shall deliver a certificate representing the applicable number of Shares and the Warrant to Purchaser.


 


sECTION
3.        Representations and Warranties of the Company. 


 


Except as set forth in
the Disclosure Schedules which Disclosure Schedules shall be deemed a part hereof and shall qualify any representation or otherwise
made herein to the extent of the disclosure contained in the corresponding Section of the Disclosure Schedules, the Company hereby
represents, warrants and covenants to each Purchaser that:


 


3.1           Organization,
Good Standing and Power. The Company is a corporation duly incorporated, validly existing and in good standing under the laws
of the State of Washington and has the requisite corporate power to own, lease and operate its properties and assets and to conduct
its business as it is now being conducted. The Company does not have any subsidiaries other than Special Phage Holdings Pty Ltd.
and Biocontrol Ltd. The Company is qualified to do business as a foreign corporation and is in good standing in every jurisdiction
in which the nature of the business conducted or property owned by it makes such qualification necessary, except for any jurisdiction(s)
(alone or in the aggregate) in which the failure to be so qualified will not have a Material Adverse Effect. For the purposes of
this Agreement, “Material Adverse Effect” means any effect on the business, operations, properties or financial
condition of the Company that is material and adverse to the Company, taken as a whole, and any condition, circumstance or situation
that would prohibit the Company from entering into and performing any of its obligations hereunder.


 


3.2           Authorization;
Enforcement. The Company has the requisite corporate power and authority to enter into and perform this Agreement and to issue
and sell the Shares in accordance with the terms hereof. The execution, delivery and performance of this Agreement by the Company
and the consummation by it of the transactions contemplated hereby have been duly and validly authorized by all necessary corporate
action, and no further consent or authorization of the Company, its board of directors or stockholders is required. When executed
and delivered by the Company, this Agreement shall constitute a valid and binding obligation of the Company enforceable against
the Company in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, reorganization,
moratorium, liquidation, conservatorship, receivership or similar laws relating to, or affecting generally the enforcement of,
creditor’s rights and remedies or by other equitable principles of general application. The Company’s board of directors,
at a meeting duly called and held, adopted resolutions approving the transactions contemplated hereby.


 




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3.3           Capitalization.


 


(a)          The
authorized capital stock of the Company consists of 445,000,000 shares of Common Stock and 10,000,000 shares of Preferred Stock.
As of March 4, 2015 (1) 199,159,093 shares of Common Stock were issued and outstanding, (2) 8,671,040 shares Series B Preferred
Stock were issued and outstanding, which were convertible into 86,710,400 shares of Common Stock, (3) no shares of Common Stock
are held by the Company in its treasury, (4) 38,890,452 shares of Common Stock were reserved for issuance pursuant to warrants
(the “Existing Warrants”), and (5) 22,034,747 shares were reserved for issuance pursuant to stock options
issued under the Company’s current stock option plans (the “Stock Options”), and (6) 39,250,000 shares
remained available for issuance under the Company’s current stock option plans. Except for the foregoing Common Stock, Preferred
Stock, the Existing Warrants, the Stock Options, and as disclosed in Schedule 3.3(a), as of the date hereof, no shares of capital
stock or other equity or voting securities of Company are issued, reserved for issuance or outstanding and there exist no outstanding
options to purchase shares of the Common Stock, rights (including conversion or preemptive rights and rights of first refusal or
similar rights) or agreements, orally or in writing, to purchase or otherwise acquire from the Company any shares of capital stock
or any securities convertible into or exchangeable for shares of Company capital stock. All outstanding shares of capital stock
and other equity or voting securities of the Company (including the Existing Warrants and Stock Options) are, and all shares which
may be issued pursuant thereto will be, when issued in accordance with the terms and conditions of their authorizing documents,
duly authorized, validly issued, fully paid and non-assessable and not subject to or issued in violation of any preemptive right,
purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right. Other than the
shares of Series B Preferred Stock, Existing Warrants and Stock Options, there are no outstanding bonds, debentures, notes or other
indebtedness or securities of the Company having the right to vote (or convertible into, or exchangeable for, securities having
the right to vote) on any matters on which any Company stockholder may vote. All of the issued and outstanding shares of Company
capital stock were offered, issued, sold and delivered by the Company in compliance with all applicable state and federal laws
concerning the issuance of securities. Further, none of such shares were issued in violation of any preemptive rights. There are
no securities or instruments issued by or to which the Company is a party containing anti-dilution or similar provisions that will
be triggered by the issuance of the Shares, the Warrants or the securities underlying the Warrants.


 


(b)          There
are no outstanding rights, commitments or contracts of any kind obligating the Company to repurchase, redeem or otherwise acquire
any shares of capital stock or other equity or voting securities of the Company. As of the date hereof, other than (i) the Subscription
Agreement dated June 26, 2013, between the Company and the holder of the Company’s Series B Preferred Stock and (ii) the
Subscription Agreement and Registration Rights Agreement dated December 19, 2013 between the Company and the purchasers party thereto,
there are no Contracts of any character (contingent or otherwise) pursuant to which any person is or may be entitled to cause the
Company to file a registration statement under the Securities Act, or which otherwise relate to the registration of any securities
of the Company. Other than as set forth on Schedule 3.3(b), there are no voting trusts, proxies, anti-takeover plans or other contracts
of any character to which the Company is a party or by which it is bound or to which any of the Company’s stockholders is
a party or by which any of them is bound, in each case, with respect to the issuance, holding, acquisition, voting or disposition
of any shares of capital stock of the Company. Other than as set forth on Schedule 3.3(b), the Company does not own, directly or
indirectly, any capital stock, security or other ownership or equity interest in any entity.


 


(c)          The
shares to be issued and sold hereunder have been duly authorized by all necessary corporate action and, when paid for and issued
in accordance with the terms hereof, will be validly issued, fully paid and nonassessable. In addition, such shares will be free
and clear of all liens, claims, charges, security interests or agreements, pledges, assignments, covenants, restrictions or other
encumbrances created by, or imposed by, the Company (collectively, “Encumbrances”) and rights of refusal of
any kind imposed by the Company (other than restrictions on transfer under applicable securities laws) and the holder of such shares
shall be entitled to all rights accorded to a holder of Common Stock.


 




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3.4           No
Conflicts; Governmental Approvals. The execution, delivery and performance of the Agreement by the Company and the consummation
by the Company of the transactions contemplated hereby do not and will not (i) violate any provision of the Company’s Amended
and Restated Articles of Incorporation or Amended and Restated Bylaws, each as amended to date, (ii) conflict with, or constitute
a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, any agreement, mortgage, deed of trust, indenture, note, bond, license,
lease agreement, instrument or obligation to which the Company is a party or by which the Company’s properties or assets
are bound, or (iii) result in a violation of any federal, state, local or foreign statute, rule, regulation, order, judgment or
decree (including federal and state securities laws and regulations) applicable to the Company or by which any property or asset
of the Company is bound or affected, except for such conflicts, defaults, terminations, amendments, acceleration, cancellations
and violations as would not, individually or in the aggregate, have a Material Adverse Effect. The Company is not required under
federal, state, foreign or local law, rule or regulation to obtain any consent, authorization or order of, or make any filing or
registration with, any court or governmental agency in order for it to execute, deliver or perform any of its obligations under
this Agreement or issue and sell the shares in accordance with the terms hereof (other than any filings, consents and approvals
which may be required to be made by the Company under applicable state and federal securities laws, rules or regulations prior
to or subsequent to the Closing).


 


3.5           Financial
Statements. For purposes of this Agreement, “Financial Statements” means the audited balance sheet of the
Company as of December 31, 2013, the audited statement of income and retained earnings and unaudited statement of cash flows of
the Company for the year ended on the Financial Statement Date, and the unaudited balance sheet, statement of income and retained
earnings, and statement of cash flows of the Company for the nine-month period ended September 30, 2014 (the “Financial
Statement Date”). An accurate copy of the Financial Statements has been provided to Purchaser. Except as set forth on
Schedule 3.5, such Financial Statements fairly present in all material respects the financial position of the Company as
of the dates thereof and the results of operations and cash flows for the periods then ended (subject to normal year-end adjustments).
Except as set forth on Schedule 3.5, such Financial Statements were prepared in accordance with generally accepted accounting
principles. Since the Financial Statement Date, the Company has not incurred any liabilities or obligations (whether absolute,
accrued, fixed, contingent, liquidated, unliquidated or otherwise and whether due or to become due) of any nature, except liabilities,
obligations or contingencies (i) which were incurred after the Financial Statement Date in the ordinary course of business consistent
with past practices under any contract, commitment or agreement specifically disclosed in the Schedules or not required to be disclosed
thereon because of the term or amount involved or otherwise, (ii) which were incurred as a result of the transactions described
herein, or (iii) which would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on
the Company. Except as set forth on Schedule 3.5, the Company has timely filed all forms, reports and other documents material
to the business of the Company required to be filed prior to the date hereof with any governmental authority.


 




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3.6           Internal
Controls. The Company has established and maintains a system of internal accounting controls sufficient to provide reasonable
assurances that: (i) transactions are executed in accordance with management’s general or specific authorization; (ii) transactions
are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles
in the United States 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.


 


3.7           No
Material Adverse Change. Except as disclosed in Schedule 3.7, since the Financial Statement Date, the Company has not (i) experienced
or suffered any Material Adverse Effect, (ii) incurred any material liabilities, obligations, claims or losses (whether liquidated
or unliquidated, secured or unsecured, absolute, accrued, contingent or otherwise) other than those incurred in the ordinary course
of the Company’s business or (iii) declared, made or paid any dividend or distribution of any kind on its capital stock.


 


3.8           Litigation.
No action, suit, proceeding or investigation is currently pending or, to the knowledge of the Company, has been threatened in writing
against the Company that: (i) concerns or questions the validity of this Agreement; (ii) concerns or questions the right of the
Company to enter into this Agreement; or (iii) is reasonably likely to have a Material Adverse Effect. The Company is neither a
party to nor subject to the provisions of any material order, writ, injunction, judgment or decree of any court or government agency
or instrumentality. There is no action, suit, proceeding or investigation by the Company currently pending or that the Company
intends to initiate that would have a Material Adverse Effect.


 


3.9           Compliance.
Except for defaults or violations which are not reasonably likely to have a Material Adverse Effect, the Company (i) is not in
default under or in violation of (and no event has occurred that has not been waived that, with notice or lapse of time or both,
would result in a default by the Company under), nor has the Company received notice of a claim that it is in default under or
that it is in violation of, any indenture, loan or credit agreement or any other agreement or instrument to which it is a party
or by which it or any of its properties is bound (whether or not such default or violation has been waived), (ii) is not in violation
of any order of any court, arbitrator or governmental body, or (iii) is not or has not been in violation of any statute, rule or
regulation of any governmental authority, including without limitation all foreign, federal, state and local laws, applicable to
its business.


 


3.10         Intellectual
Property


 


(a)          The
Company has entered into agreements with each of its current and former officers, employees and consultants involved in research
and development work, including development of the Company’s products and technology providing the Company, to the extent
permitted by law, with title and ownership to patents, patent applications, trade secrets and inventions conceived, developed,
reduced to practice by such person, solely or jointly with other of such persons, during the period of employment by the Company,
except where the failure to have entered into such an agreement would not have a Material Adverse Effect. The Company is not aware
that any of its employees or consultants is in material violation thereof.


 




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(b)          To
the Company’s knowledge, the Company owns or possesses adequate rights to use all, if any, trademarks, service marks, trade
names, domain names, copyrights, patents, patent applications, inventions, know how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or procedures), and other intellectual property rights (“Intellectual
Property”) as are necessary for the conduct of its business. In addition, (i) to the knowledge of the Company, there
is no infringement, misappropriation or violation by third parties of any such Intellectual Property; (ii) there is no pending
or, to the knowledge of the Company, threatened action, suit, proceeding or claim by others against the Company challenging the
Company’s rights in or to any such Intellectual Property; (iii) the Intellectual Property owned by the Company and,
to the knowledge of the Company, the Intellectual Property licensed to the Company has not been adjudged invalid or unenforceable
by a court of competent jurisdiction or applicable government agency, in whole or in part, and there is no pending or, to the knowledge
of the Company, threatened action, suit, proceeding or claim by others challenging the validity or scope of any such Intellectual
Property; (iv) there is no pending or, to the knowledge of the Company, threatened action, suit, proceeding or claim by others
against the Company that the Company infringes, misappropriates or otherwise violates any Intellectual Property or other proprietary
rights of others, and the Company has not received any written notice of such claim; and (v) to the Company’s knowledge,
no employee of the Company is the subject of any claim or proceeding involving a violation of any term of any employment contract,
patent disclosure agreement, invention assignment agreement, non-competition agreement, non-solicitation agreement, nondisclosure
agreement or any restrictive covenant to or with a former employer where the basis of such violation relates to such employee’s
employment with the Company or actions undertaken by the employee while employed with the Company.


 


3.11         FDA
Compliance.


 


(a)          The
Company: (i) is in material compliance with all statutes, rules or regulations applicable to the ownership, testing, development,
manufacture, packaging, processing, use, distribution, marketing, labeling, promotion, sale, offer for sale, storage, import, export
or disposal of any product that is under development, manufactured or distributed by the Company (“Applicable Laws”);
(ii) has not received any FDA Form 483, notice of adverse finding, warning letter, untitled letter or other correspondence or notice
from the U.S. Food and Drug Administration (the “FDA”) or any other federal, state, local or foreign governmental
or regulatory authority alleging or asserting material noncompliance with any Applicable Laws or any licenses, certificates, approvals,
clearances, authorizations, permits and supplements or amendments thereto required by any such Applicable Laws (“Authorizations”);
(iii) possesses all material Authorizations necessary for the operation of its business and such Authorizations are valid and in
full force and effect and the Company is not in material violation of any term of any such Authorizations; and (iv) since December
31, 2012: (A) has not received notice of any claim, action, suit, proceeding, hearing, enforcement, investigation, arbitration
or other action from the FDA or any other federal, state, local or foreign governmental or regulatory authority or third party
alleging that any product operation or activity is in material violation of any Applicable Laws or Authorizations and the Company
has no knowledge that the FDA or any other federal, state, local or foreign governmental or regulatory authority or third party
is considering any such claim, litigation, arbitration, action, suit, investigation or proceeding; (B) has not received notice
that the FDA or any other federal, state, local or foreign governmental or regulatory authority has taken, is taking or intends
to take action to limit, suspend, modify or revoke any material Authorizations and has no knowledge that the FDA or any other federal,
state, local or foreign governmental or regulatory authority is considering such action; (C) has filed, obtained, maintained or
submitted all material reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments
as required by any Applicable Laws or Authorizations and that all such reports, documents, forms, notices, applications, records,
claims, submissions and supplements or amendments were materially complete and correct on the date filed (or were corrected or
supplemented by a subsequent submission); and (D) has not, either voluntarily or involuntarily, initiated, conducted, or issued
or caused to be initiated, conducted or issued, any recall, market withdrawal or replacement, safety alert, post-sale warning,
“dear doctor” letter, or other notice or action relating to the alleged lack of safety or efficacy of any product or
any alleged product defect or violation and, to the Company’s knowledge, no third party has initiated, conducted or intends
to initiate any such notice or action.


 




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(b)          Since
January 1, 2010, the Company has not received any notices or correspondence from the FDA or any other federal, state, local or
foreign governmental or regulatory authority requiring the termination, suspension or material modification of any studies, tests
or preclinical or clinical trials conducted by or on behalf of the Company.


 


3.12         General
Healthcare Regulatory Compliance.


 


(a)          As
used in this subsection:


 


(i)          “Governmental
Entity” means any national, federal, state, county, municipal, local or foreign government, or any political subdivision,
court, body, agency or regulatory authority thereof, and any person exercising executive, legislative, judicial, regulatory, taxing
or administrative functions of or pertaining to any of the foregoing.


 


(ii)         “Law”
means any federal, state, local, national or foreign law, statute, code, ordinance, rule, regulation, order, judgment, writ, stipulation,
award, injunction, decree or arbitration award or finding.


 


(b)          The
Company has not committed any act, made any statement or failed to make any statement that would reasonably be expected to provide
a basis for the FDA or any other Governmental Entity to invoke its policy with respect to “Fraud, Untrue Statements of Material
Facts, Bribery, and Illegal Gratuities”, or similar policies, set forth in any applicable Laws. Neither the Company, nor,
to the knowledge of the Company, any of its officers, key employees or agents has been convicted of any crime or engaged in any
conduct that has resulted, or would reasonably be expected to result, in debarment under applicable Law, including, without limitation,
21 U.S.C. Section 335a. No claims, actions, proceedings or investigations that would reasonably be expected to result in such a
material debarment or exclusion are pending, or to the knowledge of the Company, threatened, against the Company or any of its
respective officers, employees or agents.


 




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(c)          Each
of the Company and, to its knowledge, its directors, officers, employees, and agents (while acting in such capacity) is, and at
all times has been, in material compliance with all health care Laws applicable to the Company or by which any of its properties,
businesses, products or other assets is bound or affected, including, without limitation, the federal Anti-kickback Statute (42
U.S.C. § 1320a-7b(b)), the Anti-Inducement Law (42 U.S.C. § 1320a-7a(a)(5)), the civil False Claims Act (31 U.S.C.
§§ 3729 et seq.), the administrative False Claims Law (42 U.S.C. § 1320a-7b(a)), the Health Insurance Portability
and Accountability Act of 1996 (42 U.S.C. § 1320d et seq.), the exclusion laws (42 U.S.C. § 1320a-7), the Food Drug and
Cosmetic Act (21 U.S.C. §§ 301 et seq.) (collectively, “Health Care Laws”). The Company has not received
any notification, correspondence or any other written or oral communication from any Governmental Entity, including, without limitation,
the FDA, the Centers for Medicare and Medicaid Services, and the Department of Health and Human Services Office of Inspector General,
of potential or actual material non-compliance by, or liability of, the Company under any Health Care Laws.


 


(d)          The
Company is not a party to any corporate integrity agreements, monitoring agreements, consent decrees, settlement orders, or similar
agreements with or imposed by any Governmental Entity.


 


3.13         Application
of Takeover Protections. The issuance of the Offered Securities hereunder and Purchaser’s ownership thereof is not prohibited
by the business combination statutes of the state of Washington. The Company has not adopted any stockholder rights plan, “poison
pill” or similar arrangement that would trigger any right, obligation or event as a result of the issuance of the Offered
Securities and Purchaser’s ownership of such securities and there are no similar anti-takeover provisions under the Company's
charter documents.


 


3.14         Private
Placement. Neither the Company nor its Affiliates, nor any person acting on its or their behalf, (i) has engaged in any form
of general solicitation or general advertising (within the meaning of Regulation D under the Securities Act of 1933 and the rules
and regulations promulgated thereunder (together, the “Securities Act”)) in connection with the offer or sale
of the Offered Securities or (ii) has issued any shares of Common Stock or shares of any series of Preferred Stock or other securities
or instruments convertible into, exchangeable for or otherwise entitling the holder thereof to acquire shares of Common Stock which
would be integrated with the sale of the Offered Securities to Purchaser for purposes of the Securities Act or of any applicable
stockholder approval provisions, including, without limitation, under the rules and regulations of any exchange or automated quotation
system on which any of the securities of the Company are listed or designated, nor will the Company or any of its subsidiaries
or affiliates take any action or steps that would require registration of any of the Offered Securities under the Securities Act
or cause the offering of the Offered Securities to be integrated with other offerings. Assuming the accuracy of the representations
and warranties of Purchaser, the offer and sale of the Offered Securities by the Company to Purchaser pursuant to this Agreement
will be exempt from the registration requirements of the Securities Act.


 


3.15         No
Disqualification Events. With respect to Offered Securities to be offered and sold hereunder in reliance on Rule 506 under
the Securities Act (“Regulation D Securities”), neither the Company, nor, to the Company’s knowledge,
any of its predecessors, any affiliated issuer, any director, executive officer, other officer of the Company participating in
the offering, any beneficial owner of 20% or more of the Company’s outstanding voting equity securities, calculated on the
basis of voting power, any person that has been or will be paid (directly or indirectly) remuneration for solicitation of purchasers
in connection with such sale of Offered Securities, nor any promoter (as that term is defined in Rule 405 under the Securities
Act) connected with the Company in any capacity at the time of sale (each, an “Company Covered Person” and,
together, “Company Covered Persons”) is subject to any of the “Bad Actor” disqualifications described
in Rule 506(d)(1)(i) to (viii) under the Securities Act (a “Disqualification Event”), except for a Disqualification
Event covered by Rule 506(d)(2) or (d)(3). The Company has exercised reasonable care to determine whether any Company Covered Person
is subject to a Disqualification Event. The Company has complied, to the extent applicable, with its disclosure obligations under
Rule 506(e), and has furnished to the Purchasers a copy of any disclosures provided thereunder.


 




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3.16         No
Manipulation of Stock. The Company has not taken and will not, in violation of applicable law, take, any action outside
the ordinary course of business designed to or that might reasonably be expected to cause or result in unlawful manipulation of
the price of the Common Stock.


 


sECTION
4.        Representations and Warranties of the Purchaser. 


 


Each Purchaser, severally and not jointly, hereby
represents, warrants and covenants to the Company as follows:


 


4.1           None
of the Offered Securities or securities underlying the Offered Securities are registered under the Securities Act or any state
securities laws. The Purchaser understands that the offering and sale of the Offered Securities is intended to be exempt from registration
under the Securities Act, by virtue of Section 4(a)(2) thereof each as promulgated by the United States Securities and Exchange
Commission (the “SEC”) thereunder, based, in part, upon the representations, warranties and agreements of the
Purchaser contained in this Subscription Agreement.


 


4.2           Prior
to the execution of this Subscription Agreement, the Purchaser and the Purchaser's attorney, accountant, purchaser representative
and/or tax adviser, if any (collectively, the “Advisers”), have received this Subscription Agreement, the terms
of the Common Stock, the Warrant and all documents requested by the Purchaser, have carefully reviewed them and understand the
information contained therein.


 


4.3           Neither
the SEC nor any state securities commission or other regulatory authority has approved the Offered Securities or passed upon or
endorsed the merits of the offering of the Offered Securities.


 


4.4           All
documents, records, and books pertaining to the investment in the Offered Securities have been made available for inspection by
such Purchaser and its Advisers, if any.


 


4.5           The
Purchaser and its Advisers, if any, have had a reasonable opportunity to ask questions of and receive answers from a person or
persons acting on behalf of the Company concerning the offering of the Offered Securities and the business, financial condition
and results of operations of the Company, and all such questions have been answered to the full satisfaction of the Purchaser and
its Advisers, if any.


 


4.6           In
evaluating the suitability of an investment in the Company, the Purchaser has not relied upon any representation or information
(oral or written) other than as stated in this Subscription Agreement, the terms of the Common Stock or the Warrant.


 




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4.7           The
Purchaser is unaware of, is in no way relying on, and did not become aware of the Offering of the Offered Securities through or
as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement
or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet
(including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in
connection with the Offering and sale of the Offered Securities and is not subscribing for the Offered Securities and did not become
aware of the Offering of the Offered Securities through or as a result of any seminar or meeting to which the Purchaser was invited
by, or any solicitation of a subscription by, a person not previously known to the Purchaser in connection with investments in
securities generally.


 


4.8           The
Purchaser has taken no action that would give rise to any claim by any person for brokerage commissions, finders' fees or the like
relating to this Subscription Agreement or the transactions contemplated hereby.


 


4.9           The
Purchaser, together with its Advisers, if any, has such knowledge and experience in financial, tax, and business matters, and,
in particular, investments in securities, so as to enable it to utilize the information made available to it in connection with
the Offering to evaluate the merits and risks of an investment in the Offered Securities and the Company and to make an informed
investment decision with respect thereto.


 


4.10         The
Purchaser is not relying on the Company or any of its respective employees or agents with respect to the legal, tax, economic and
related considerations of an investment in the Offered Securities, and the Purchaser has relied on the advice of, or has consulted
with, only its own Advisers.


 


4.11         The
Purchaser is acquiring the Offered Securities solely for such Purchaser's own account for investment purposes only and not with
a view to or intent of resale or distribution thereof, in whole or in part. The Purchaser has no agreement or arrangement, formal
or informal, with any person to sell or transfer all or any part of the Offered Securities and the Purchaser has no plans to enter
into any such agreement or arrangement.


 


4.12         The
Purchaser must bear the substantial economic risks of the investment in the Offered Securities indefinitely because none of the
securities included in the Offered Securities may be sold, hypothecated or otherwise disposed of unless subsequently registered
under the Securities Act and applicable state securities laws or an exemption from such registration is available. Legends to the
following effect shall be placed on the securities included in the Offered Securities to the effect that they have not been registered
under the Securities Act or applicable state securities laws:


 


THE SECURITIES REPRESENTED HEREBY
AND THE SECURITIES ISSUABLE UPON THE CONVERSION HEREOF HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED (THE “U.S. SECURITIES ACT”). THE HOLDER HEREOF, BY PURCHASING SUCH SECURITIES, AGREES FOR THE BENEFIT
OF THE COMPANY THAT SUCH SECURITIES MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN ACCORDANCE WITH AN EXEMPTION
FROM REGISTRATION UNDER THE U.S. SECURITIES ACT, IF AVAILABLE, OR UNDER AN EFFECTIVE REGISTRATION STATEMENT, AND, IN EACH CASE,
IN COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS. 


 




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4.13         Appropriate
notations will be made in the Company's books to the effect that the Offered Securities have not been registered under the Securities
Act or applicable state securities laws. Stop transfer instructions will be placed with the transfer agent of the securities. There
can be no assurance that there will be any market for resale of the Offered Securities, nor can there be any assurance that such
securities will be freely transferable at any time in the foreseeable future. The Purchaser has adequate means of providing for
such Purchaser's current financial needs and foreseeable contingencies and has no need for liquidity of its investment in the Offered
Securities for an indefinite period of time.


 


4.14         The
Purchaser either:


 


(a)          meets
the requirements of at least one of the suitability standards for an “accredited investor” as that term is defined
in Regulation D and as set forth on the Accredited Investor Certification attached hereto as Exhibit C; or


 


(b)          is
not a “U.S. Person” as defined in Regulation S; and specifically the Purchaser is not (all Purchasers who are not
a U.S. Person must INITIAL this section as indicated to confirm their careful review and understanding of this Section)
Initial _______:


 


(i)          a
natural person resident in the United States of America, including its territories and possessions (“United States”);


 


(ii)         a
partnership or corporation organized or incorporated under the laws of the United States;


 


(iii)        an
estate of which any executor or administrator is a U.S. Person;


 


(iv)        a
trust of which any trustee is a U.S. Person;


 


(v)         an
agency or branch of a foreign entity located in the United States;


 


(vi)        a
non-discretionary account or similar account (other than an estate or trust) held by a dealer or other fiduciary for the benefit
or account of a U.S. Person;


 


(vii)       a
discretionary account or similar account (other than an estate or trust) held by a dealer or other fiduciary organized, incorporated,
or (if an individual) resident in the United States; and


 




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(viii)      a
partnership or corporation: (A) organized or incorporated under the laws of any foreign jurisdiction; and (B) formed by a U.S.
Person principally for the purpose of investing in securities not registered under the Securities Act, unless it is organized or
incorporated, and owned, by accredited investors (as defined in Rule 501(a) under the Act) who are not natural persons, estates
or trusts.


 


(c)          And,
in addition (to the extent (a) above is inapplicable):


 


(i)          the
Purchaser was not offered the Offered Securities in the United States;


 


(ii)         at
the time the buy-order for the Offered Securities was originated, the Purchaser was outside the United States;


 


(iii)        the
Purchaser is purchasing the Offered Securities for its own account and not on behalf of any U.S. Person (as defined in Regulation
S) and a sale of the Offered Securities has not been pre-arranged with a purchaser in the United States;


 


(iv)        the
Purchaser agrees to resell the Offered Securities only in accordance with the provisions of Regulation S, pursuant to registration
under the Act, or pursuant to an available exemption from registration and agrees not to engage in hedging transactions with regard
to such Offered Securities unless in compliance with the Act;


 


(v)         the
Purchaser agrees that any certificates for any Offered Securities issued to such Purchaser shall contain a legend to the effect
that transfer is prohibited except in accordance with the provisions of Regulation S, pursuant to registration under the Act or
pursuant to an available exemption from registration and that hedging transactions involving such Offered Securities may not be
conducted unless in compliance with the Act; and


 


(vi)        the
Purchaser agrees that the Company is hereby required to refuse to register any transfer of any Offered Securities issued to such
Purchaser not made in accordance with the provisions of Regulation S, pursuant to registration under the Act, or pursuant to an
available exemption from registration.


 


4.15         The
Purchaser (i) if a natural person, represents that the Purchaser has reached the age of 21 and has full power and authority to
execute and deliver this Subscription Agreement and all other related agreements or certificates and to carry out the provisions
hereof and thereof; (ii) if a corporation, partnership, or limited liability company or partnership, or association, joint stock
company, trust, unincorporated organization or other entity, represents that such entity was not formed for the specific purpose
of acquiring the Offered Securities, such entity is duly organized, validly existing and in good standing under the laws of the
state of its organization, the consummation of the transactions contemplated hereby is authorized by, and will not result in a
violation of state law or its charter or other organizational documents, such entity has full power and authority to execute and
deliver this Subscription Agreement and all other related agreements or certificates and to carry out the provisions hereof and
thereof and to purchase and hold the securities constituting the Offered Securities, the execution and delivery of this Subscription
Agreement has been duly authorized by all necessary action, this Subscription Agreement has been duly executed and delivered on
behalf of such entity and is a legal, valid and binding obligation of such entity; or (iii) if executing this Subscription Agreement
in a representative or fiduciary capacity, represents that it has full power and authority to execute and deliver this Subscription
Agreement in such capacity and on behalf of the subscribing individual, ward, partnership, trust, estate, corporation, or limited
liability company or partnership, or other entity for whom the Purchaser is executing this Subscription Agreement, and such individual,
partnership, ward, trust, estate, corporation, or limited liability company or partnership, or other entity has full right and
power to perform pursuant to this Subscription Agreement and make an investment in the Company, and represents that this Subscription
Agreement constitutes a legal, valid and binding obligation of such entity. The execution and delivery of this Subscription Agreement
will not violate or be in conflict with any order, judgment, injunction, agreement or controlling document to which the Purchaser
is a party or by which it is bound.


 




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4.16         The
Purchaser and the Advisers, if any, have had the opportunity to obtain any additional information, to the extent the Company has
such information in its possession or could acquire it without unreasonable effort or expense, necessary to verify the accuracy
of the information contained in all documents received or reviewed in connection with the purchase of the Offered Securities and
have had the opportunity to have representatives of the Company provide them with such additional information regarding the terms
and conditions of this particular investment and the financial condition, results of operations, business of the Company deemed
relevant by the Purchaser or the Advisers, if any, and all such requested information, to the extent the Company had such information
in its possession or could acquire it without unreasonable effort or expense, has been provided to the full satisfaction of the
Purchaser and the Advisers, if any.


 


4.17         Any
information which the Purchaser has heretofore furnished or is furnishing herewith to the Company is complete and accurate and
may be relied upon by the Company in determining the availability of an exemption from registration under federal and state securities
laws in connection with the offering of securities as described herein. The Purchaser further represents and warrants that it will
notify and supply corrective information to the Company immediately upon the occurrence of any change therein occurring prior to
the Company's issuance of the Offered Securities.


 


4.18         The
Purchaser has significant prior investment experience, including investment in non-listed and non-registered securities. The Purchaser
is knowledgeable about investment considerations in development-stage companies with limited operating histories. The Purchaser
has a sufficient net worth to sustain a loss of its entire investment in the Company in the event such a loss should occur. The
Purchaser's overall commitment to investments which are not readily marketable is not excessive in view of the Purchaser’s
net worth and financial circumstances and the purchase of the Offered Securities will not cause such commitment to become excessive.
The investment is a suitable one for the Purchaser.


 


4.19         The
Purchaser is satisfied that the Purchaser has received adequate information with respect to all matters which it or the Advisers,
if any, consider material to its decision to make this investment.


 


4.20         No
oral or written representations have been made, or oral or written information furnished, to the Purchaser or the Advisers, if
any, in connection with the Offering which are in any way inconsistent with the information contained in this Subscription Agreement
or the Offered Securities.


 




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4.21         [Intentionally
Omitted].


 


4.22         THE
SECURITIES OFFERED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS AND
ARE BEING OFFERED AND SOLD IN RELIANCE ON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF SAID ACT AND SUCH LAWS. THE SECURITIES
ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER SAID ACT
AND SUCH LAWS PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. THE SECURITIES HAVE NOT BEEN RECOMMENDED, APPROVED OR DISAPPROVED
BY THE COMMISSION, ANY STATE SECURITIES COMMISSION OR ANY OTHER REGULATORY AUTHORITY, NOR HAVE ANY OF THE FOREGOING AUTHORITIES
PASSED UPON OR ENDORSED THE MERITS OF THIS OFFERING OR THE ACCURACY OR ADEQUACY OF THIS SUBSCRIPTION AGREEMENT AND THE TERMS OF
THE WARRANT. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL.


 


4.23         In
making an investment decision Purchasers must rely on their own examination of the Company and the terms of the Offering, including
the merits and risks involved. The Purchaser should be aware that it will be required to bear the financial risks of this investment
for an indefinite period of time


 


4.24         (For
ERISA plans only) The fiduciary of the ERISA plan (the “Plan”) represents that such fiduciary has been informed
of and understands the Company’s investment objectives, policies and strategies, and that the decision to invest “plan
assets” (as such term is defined in ERISA) in the Company is consistent with the provisions of ERISA that require diversification
of plan assets and impose other fiduciary responsibilities. The Purchaser fiduciary or Plan (a) is responsible for the decision
to invest in the Company; (b) is independent of the Company or any of its affiliates; (c) is qualified to make such investment
decision; and (d) in making such decision, the Purchaser fiduciary or Plan has not relied primarily on any advice or recommendation
of the Company or any of its affiliates.


 


4.25         The
Purchaser should check the Office of Foreign Assets Control (“OFAC”) website at http://www.treas.gov/ofac before making
the following representations. The Purchaser represents that the amounts invested by it in the Company in the Offering were
not and are not directly or indirectly derived from activities that contravene federal, state or international laws and regulations,
including anti-money laundering laws and regulations. Federal regulations and Executive Orders administered by OFAC prohibit, among
other things, the engagement in transactions with, and the provision of services to, certain foreign countries, territories, entities
and individuals. The lists of OFAC prohibited countries, territories, persons and entities can be found on the OFAC website at
http://www.treas.gov/ofac. In addition, the programs administered by OFAC (the “OFAC Programs”) prohibit dealing
with individuals1 or entities in certain countries regardless
of whether such individuals or entities appear on the OFAC lists.


 





 






1 These
individuals include specially designated nationals, specially designated narcotics traffickers and other parties subject to OFAC
sanctions and embargo programs.


 




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4.26         To
the best of the Purchaser’s knowledge, none of: (1) the Purchaser; (2) any person controlling or controlled by the Purchaser;
(3) if the Purchaser is a privately-held entity, any person having a beneficial interest in the Purchaser; or (4) any person for
whom the Purchaser is acting as agent or nominee in connection with this investment is a country, territory, individual or entity
named on an OFAC list, or a person or entity prohibited under the OFAC Programs. Please be advised that the Company may not accept
any amounts from a prospective investor if such prospective investor cannot make the representation set forth in the preceding
paragraph. The Purchaser agrees to promptly notify the Company should the Purchaser become aware of any change in the information
set forth in these representations. The Purchaser understands and acknowledges that, by law, the Company may be obligated to “freeze
the account” of the Purchaser, either by prohibiting additional subscriptions from the Purchaser, declining any redemption
requests and/or segregating the assets in the account in compliance with governmental regulations, and the Company may also be
required to report such action and to disclose the Purchaser’s identity to OFAC. The Purchaser further acknowledges that
the Company may, by written notice to the Purchaser, suspend the redemption rights, if any, of the Purchaser if the Company reasonably
deems it necessary to do so to comply with anti-money laundering regulations applicable to the Company or any of the Company’s
service providers. These individuals include specially designated nationals, specially designated narcotics traffickers and other
parties subject to OFAC sanctions and embargo programs.


 


4.27         To
the best of the Purchaser’s knowledge, none of: (1) the Purchaser; (2) any person controlling or controlled by the Purchaser;
(3) if the Purchaser is a privately-held entity, any person having a beneficial interest in the Purchaser; or (4) any person for
whom the Purchaser is acting as agent or nominee in connection with this investment is a senior foreign political figure,2
or any immediate family3 member or
close associate4 of a senior foreign political
figure, as such terms are defined in the footnotes below.


 


4.28         If
the Purchaser is affiliated with a non-U.S. banking institution (a “Foreign Bank”), or if the Purchaser receives
deposits from, makes payments on behalf of, or handles other financial transactions related to a Foreign Bank, the Purchaser represents
and warrants to the Company that: (1) the Foreign Bank has a fixed address, other than solely an electronic address, in a country
in which the Foreign Bank is authorized to conduct banking activities; (2) the Foreign Bank maintains operating records related
to its banking activities; (3) the Foreign Bank is subject to inspection by the banking authority that licensed the Foreign Bank
to conduct banking activities; and (4) the Foreign Bank does not provide banking services to any other Foreign Bank that does not
have a physical presence in any country and that is not a regulated affiliate.


 





 



 


2 A
“senior foreign political figure” is defined as a senior official in the executive, legislative, administrative, military
or judicial branches of a foreign government (whether elected or not), a senior official of a major foreign political party, or
a senior executive of a foreign government-owned corporation. In addition, a “senior foreign political figure” includes
any corporation, business or other entity that has been formed by, or for the benefit of, a senior foreign political figure.


 


3 “Immediate
family” of a senior foreign political figure typically includes the figure’s parents, siblings, spouse, children and
in-laws.


 


4 A
“close associate” of a senior foreign political figure is a person who is widely and publicly known to maintain an
unusually close relationship with the senior foreign political figure, and includes a person who is in a position to conduct substantial
domestic and international financial transactions on behalf of the senior foreign political figure.


 




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sECTION
5.        Conditions to the Purchasers’ Obligations.


 


The obligations of each
Purchaser under subsection 1.1 of this Agreement with respect to the Closing are subject to the fulfillment on or before each Closing
(unless otherwise indicated) of each of the following conditions:


 


5.1           Representations
and Warranties. The representations and warranties of the Company contained in Section 3 shall be true and correct in all material
respects on and as of the Closing with the same effect as though such representations and warranties had been made on and as of
the date of the Closing.


 


5.2           Performance.
The Company shall have performed and complied in all material respects with all agreements, obligations and conditions contained
in this Agreement that are required to be performed or complied with by it on or before the Closing.


 


5.3           Compliance
Certificate. The President of the Company shall deliver to the Purchasers at the Closing a certificate stating that the conditions
specified in Sections 5.1 and 5.2 have been fulfilled.


 


5.4           Secretary’s
Certificate. The Company shall deliver to the Purchasers at the Closing a certificate of the Secretary of the Company with
respect to the Company’s Amended and Restated Articles of Incorporation, the Company’s Amended and Restated Bylaws
and the resolutions of the Company’s board of directors relating to the transactions contemplated hereby.


 


5.5           Permits,
Qualifications and Consents. All permits, authorizations, approvals, consents or permits, if any, of any governmental authority
or regulatory body of the United States or of any state that are required in connection with the lawful issuance and sale of the
Offered Securities pursuant to this Agreement shall be duly obtained and effective as of the Closing.


 


5.6           Opinion
of Company Counsel. Each Investor shall have received from Morrison & Foerster LLP, counsel for the Company, an opinion,
dated as of the Closing, in substantially the form attached hereto as Exhibit D.


 


5.7           Registration
Rights Agreement. The Company shall have delivered to each Purchaser a copy of the Registration Rights Agreement signed by
the Company.


 


sECTION
6.          Conditions to the Company’s Obligations.


 


The obligations of the
Company to the Purchasers with respect to the Closing are subject to the fulfillment on or before the Closing of each of the following
conditions by the Purchasers:


 


6.1           Representations
and Warranties. The representations and warranties of the Purchasers contained in Section 4 shall be true and correct on and
as of the Closing with the same effect as though such representations and warranties had been made on and as of the Closing.


 




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6.2           Payment
of Purchase Price. The Purchasers shall have delivered the purchase price specified in Section 1.1 for the Offered Securities
set forth opposite each Purchaser’s name on Exhibit A hereto.


 


6.3           Permits,
Qualifications and Consents. All permits, authorizations, approvals, consents or permits, if any, of any governmental authority
or regulatory body of the United States or of any state that are required in connection with the lawful issuance and sale of the
Offered Securities pursuant to this Agreement shall be duly obtained and effective as of the Closing.


 


6.4           Registration
Rights Agreement. Each Purchaser shall have delivered to the Company a copy of the Registration Rights Agreement signed by
such Purchaser.


 


sECTION
7.        Indemnification.


 


7.1           Indemnification
by the Company. The Company agrees to indemnify and hold harmless the Purchaser and its respective officers, directors, employees,
agents, attorneys, control persons and affiliates from and against all losses, liabilities, claims, damages, costs, fees and expenses
whatsoever (including, but not limited to, any and all legal and other expenses incurred in investigating, preparing or defending
against any litigation commenced or threatened) based upon or arising out of any actual or alleged false acknowledgment, representation
or warranty, or misrepresentation or omission to state a material fact, or breach by the Company of any covenant or agreement made
by the Company herein or in any other document delivered in connection with this Subscription Agreement.


 


sECTION
8.        Survival of Representations and Warranties.


 


The representations and
warranties of the Company made in this Subscription Agreement shall survive the execution and delivery hereof and delivery of the
Shares and the underlying securities upon conversion of the Warrants for a period of one year after Closing.


 


sECTION
9.        Legend Removal.


 


9.1           Certificates
evidencing the Shares and the securities underlying the Warrants shall not contain any legend (including the legends referenced
in Section 4 above), (i) while a Registration Statement covering the resale of such security is effective under the Securities
Act, (ii) following any sale of such Shares or securities underlying the Warrants pursuant to Rule 144, (iii) if such Shares or
securities underlying the Warrants are eligible for sale under Rule 144, without the requirement for the Company to be in compliance
with the current public information required under Rule 144 as to such Shares or securities underlying the Warrants and without
volume or manner-of-sale restrictions, or (iv) if such legend is not required under applicable requirements of the Securities Act
(including judicial interpretations and pronouncements issued by the staff of the Commission). The Company shall cause its counsel
to issue a legal opinion to the transfer agent promptly if required by the transfer agent to effect the removal of the legend hereunder.
The Company agrees that following such time as such legend is no longer required under this Section 9.1, it will, no later than
three Trading Days following the delivery by a Purchaser to the Company or the transfer agent of a certificate representing Shares
or the securities underlying the Warrants, as the case may be, issued with a restrictive legend (such third Trading Day, the “Legend
Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such Shares or securities
underlying the Warrants that is free from all restrictive and other legends. The Company may not make any notation on its records
or give instructions to the transfer agent that enlarge the restrictions on transfer set forth in Section 4. Certificates for Shares
or securities underlying the Warrants subject to legend removal hereunder shall be transmitted by the transfer agent to the Purchaser
by crediting the account of the Purchaser’s prime broker with the Depository Trust Company System as directed by such Purchaser.


 




    	17



    	 



    

 


9.2           In
addition to such Purchaser’s other available remedies, the Company shall pay to a Purchaser, in cash, as partial liquidated
damages and not as a penalty, for each $2,000 of Shares or securities underlying the Warrants (based on the volume-weighted average
price of the Common Stock on the date such Shares or securities underlying the Warrants are submitted to the transfer agent) delivered
for removal of the restrictive legend and subject to this Section 9, $10 per Trading Day for each Trading Day after the Legend
Removal Date until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue
actual damages for the Company’s failure to deliver certificates representing any Shares or securities underlying the Warrants
as required by this Subscription Agreement, and such Purchaser shall have the right to pursue all remedies available to it at law
or in equity including, without limitation, a decree of specific performance and/or injunctive relief.


 


9.3           As
used in this section:


 


(a)          “Trading
Day” means (i) a day on which the Common Stock is listed or quoted and traded on its Principal Market (unless the
Principal Market is the OTC Bulletin Board or the “pink sheets”), or (ii) if the Common Stock is not listed on
a Trading Market (other than the OTC Bulletin Board or the OTC QB, OTC QX or “pink sheets” tier of the OTC Markets
Group, Inc.), a day on which the Common Stock is traded in the over-the-counter market, as reported by the OTC Bulletin Board,
or (iii) if the Common Stock is not quoted on any Trading Market (other than the OTC QB, OTC QX or “pink sheets”
tier of the OTC Markets Group, Inc.), a day on which the Common Stock is quoted in the over-the-counter market as reported by the
OTC QB, OTC QX or “pink sheets” tier of the OTC Markets Group, Inc. (or any similar organization or agency succeeding
to its functions of reporting prices); provided, that in the event that the Common Stock is not listed or quoted as set
forth in (i), (ii) and (iii) hereof, then Trading Day shall mean a Business Day.


 


(b)          “Principal
Market” means the Trading Market on which the Common Stock is primarily listed on and quoted for trading, which, as of
the Closing Date, shall be the OTC Bulletin Board.


 


(c)          “Trading
Market” means whichever of the New York Stock Exchange, the NYSE-MKT, the NASDAQ Global Select Market, the NASDAQ Global
Market, the NASDAQ Capital Market, the OTC Bulletin Board, the OTC QB, OTC QX or “pink sheets” tier of OTC Markets
Group, Inc. (or any similar organization or agency succeeding to its function of reporting prices) on which the Common Stock is
listed or quoted for trading on the date in question.


 




    	18



    	 



    

 


sECTION
10.        Authorized Share Covenant.


 


10.1         The
Company shall not issue any options to purchase Common Stock until the earlier of (i) the completion by the Company of a reverse
stock split that results in the Company having additional authorized but unissued shares of Common Stock and (ii) an increase in
the number authorized but unissued shares of Common Stock, in either case, which results in the number of authorized but unissued
shares of Common Stock equaling or exceeding the number of shares available for issuance under the Company’s 2013 Stock Incentive
Plan at the time of such increase. This covenant shall terminate and have no further force or effect on the earlier of such dates.


 


sECTION
11.        Notices.


 


11.1         Any
notice or other communication required or permitted to be given hereunder shall be in writing and shall be mailed by certified
mail, return receipt requested, or delivered against receipt to the party to whom it is to be given (a) if to the Company, at the
address set forth above, or (b) if to the Purchaser, at the address set forth on the signature page hereof (or, in either case,
to such other address as the party shall have furnished in writing in accordance with the provisions of this Section 9). Any notice
or other communication given by certified mail shall be deemed given at the time of certification thereof, except for a notice
changing a party's address which shall be deemed given at the time of receipt thereof.


 


sECTION
12.        Miscellaneous.


 


12.1         Irrevocability;
Binding Effect. The Purchaser hereby acknowledges and agrees that the subscription hereunder is irrevocable by the Purchaser,
except as required by applicable law, and that this Subscription Agreement shall survive the death or disability of the Purchaser
and shall be binding upon and inure to the benefit of the parties and their heirs, executors, administrators, successors, legal
representatives, and permitted assigns. If the Purchaser is more than one person, the obligations of the Purchaser hereunder shall
be joint and several and the agreements, representations, warranties, and acknowledgments herein shall be deemed to be made by
and be binding upon each such person and such person's heirs, executors, administrators, successors, legal representatives, and
permitted assigns.


 


12.2         Modification.
This Subscription Agreement shall not be amended, modified or waived except by an instrument in writing signed by the Company and
holders representing at least a majority of the shares of Common Stock purchased hereunder; provided that any amendment,
modification or waiver (i) that increases the Purchase Price or (ii) that imposes any additional obligations on the Purchaser,
shall require the consent of each Purchaser. Purchaser acknowledges that this Subscription Agreement may be amended without Purchaser’s
consent in accordance with the foregoing sentence.


 


12.3         Assignability.
This Subscription Agreement and the rights, interests and obligations hereunder are not transferable or assignable by the Purchaser
and the transfer or assignment of the Offered Securities shall be made only in accordance with all applicable laws.


 




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12.4         Applicable
Law. This Subscription Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable
to contracts to be wholly-performed within said State, without regard to its conflicts of laws principles.


 


12.5         Venue.
Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of the transactions contemplated
by this Subscription Agreement (whether brought against a party hereto or its respective affiliates, directors, officers, shareholders,
employees or agents) shall be commenced exclusively in the federal or state courts located in the City of New York, Borough of
Manhattan. Each party hereby irrevocably submits to the exclusive jurisdiction of the federal or state courts located in the City
of New York, Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein, 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 improper
or is an inconvenient venue for such proceeding. The parties hereby waive all rights to a trial by jury.


 


12.6         Blue
Sky Qualification. The purchase of Offered Securities under this Subscription Agreement is expressly conditioned upon the exemption
from qualification of the offer and sale of the Offered Securities from applicable federal and state securities laws. The Company
shall not be required to qualify this transaction under the securities laws of any jurisdiction and, should qualification be necessary,
the Company shall be released from any and all obligations to maintain its offer, and may rescind any sale contracted, in the jurisdiction.


 


12.7         Use
of Pronouns. All pronouns and any variations thereof used herein shall be deemed to refer to the masculine, feminine, neuter,
singular or plural as the identity of the person or persons referred to may require.


 


12.8         Confidentiality.
If the Purchaser has entered into a separate agreement with the Company regarding confidentiality, such agreement shall survive
and control with respect to the subject matter thereof. If the Purchaser has not entered into a separate agreement with the Company
regarding confidentiality, such Purchaser acknowledges and agrees as follows: (i) that any information or data the Purchaser has
acquired from or about the Company, not otherwise properly in the public domain, was received in confidence; and (ii) not to divulge,
communicate or disclose, except as may be required by law or for the performance of this Agreement, or use to the detriment of
the Company or for the benefit of any other person or persons, or misuse in any way, any confidential information of the Company,
including any scientific, technical, trade or business secrets of the Company and any scientific, technical, trade or business
materials that are treated by the Company as confidential or proprietary, including, but not limited to, ideas, discoveries, inventions,
developments and improvements belonging to the Company and confidential information obtained by or given to the Company about or
belonging to third parties.


 


12.9         Termination.
If the Closing does not occur on or prior to March 31, 2015, this Subscription Agreement shall automatically terminate, provided
that such termination shall be without prejudice to any breach of this Subscription Agreement by either party prior to such termination.


 




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12.10         Headings.
Paragraph titles are for descriptive purposes only and shall not control or alter the meaning of this Subscription Agreement as
set forth in the text.


 


12.11         Severability.
Each provision of this Subscription Agreement shall be considered separable and, if for any reason any provision or provisions
hereof are determined to be invalid or contrary to applicable law, such invalidity or illegality shall not impair the operation
of or affect the remaining portions of this Subscription Agreement.


 


12.12         Counterparts.
This Subscription Agreement may be executed in one or more counterparts each of which shall be deemed an original, but all of which
shall together constitute one and the same instrument.


 


12.13         Expenses.
Each of the parties hereto shall pay its own fees and expenses (including the fees of any attorneys, accountants, appraisers or
others engaged by such party) in connection with this Subscription Agreement and the transactions contemplated hereby whether or
not the transactions are consummated.


 


12.14         Entire
Agreement. Except as set forth in Section 12.8 above, this Subscription Agreement, together with the exhibits and attachments
hereto and thereto constitute, the entire agreement between the Purchaser and the Company with respect to the subject matter hereof
and supersede all prior oral or written agreements and understandings, if any, relating to the subject matter hereof. The terms
and provisions of this Subscription Agreement may be waived, or consent for the departure therefrom granted, only by a written
document executed by the party entitled to the benefits of such terms or provisions.


 


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    	21



    	 



    

 


To subscribe for Offered Securities in the
private offering of the Company:


 


		1.	Date and Fill in the aggregate Subscription Amount
of the Shares being purchased and Complete and Sign the Signature Page of the Subscription Agreement.



 


		2.	Initial the Accredited Investor Certification page
attached as Exhibit C to this letter.



 


		3.	Return all forms to Carolyn Sarosi by fax at 804.205.5001
or email to ##@ampliphibio.com and then send all signed original documents, including a check for the Subscription Amount
payable to the order of “AmpliPhi Biosciences Corporation”, and mail to:



 


AmpliPhi Biosciences Corporation


4870 Sadler Road, Suite 300


Glen Allen, Virginia 23060


Attn: Jeremy Curnock Cook


 


			Please include your name and federal tax ID number (if applicable) on the check.



 


		4.	For wiring funds directly to the Company’s account,
use the following instructions:



 


Account Name: AmpliPhi Biosciences Corporation


 


	Account Number:	###-####-#
	ABA Number:	#########
	Swift Code:	MRMDUS33
	Bank Name & Address	HSBC Bank USA, N.A.
	 	P.O. Box 9
	 	Buffalo, New York 14240
	 	Ref: Investor Name, Tax ID Number and Address


 




    	 



    	 



    

 


AMPLIPHI BIOSCIENCES
CORPORATION


SIGNATURE PAGE TO THE


SUBSCRIPTION AGREEMENT


 








 



 




Purchaser hereby elects to subscribe under
the Subscription Agreement for shares of Common Stock and a Warrant to purchase shares of Common Stock in the aggregate Subscription
Amount of $______________ (NOTE: to be completed by Purchaser) and executes the Subscription Agreement.


 


Date (NOTE: To be completed by Purchaser): ________________________________


  


 






 


If the Purchaser is an INDIVIDUAL, and if purchased
as JOINT TENANTS, as TENANTS IN COMMON, or as COMMUNITY PROPERTY:


 


	 	 	 	 	 
	 	Print Name(s)	 	Social Security Number(s)	 
	 	 	 	 	 
	 	 	 	 	 
	 	Signature(s) of Purchaser(s)	 	Signature	 
	 	 	 	 	 
	 	 	 	 	 
	 	Date	 	Address	 


 


If the Purchaser is a PARTNERSHIP, CORPORATION,
LIMITED LIABILITY COMPANY or TRUST:


 


	 	 	 	 	 
	 	Name of Partnership,	 	Federal Taxpayer	 
	 	Corporation, Limited	 	Identification Number (if applicable)
	 	Liability Company or Trust	 	 	 
	 	 	 	 	 
	 	By:	 	 	 	 
	 	 	Name:	 	State of Organization	 
	 	 	Title:	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	Date	 	Address	 


  


 



 


	 	Accepted and agreed to:	 	 	 
	 	 	 	 	 
	 	AmplipHI BIOSCIENCES CORPORATION	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	By:	 	 	Date:	 	 
	 	Name:	 	 	 
	 	Title:	 	 	 


 




    	 



    	 



    

 


EXHIBIT A


 


SCHEDULE OF PURCHASERS


 




    	 



    	 



    

 


EXHIBIT B


 FORM OF WARRANT 


 




    	 



    	 



    

 


EXHIBIT C


 


ACCREDITED INVESTOR CERTIFICATION


 




    	 



    	 



    

 


EXHIBIT D


 


FORM OF LEGAL OPINION




    	 



    	 



    

 


DISCLOSURE SCHEDULES