TONIX PHARMACEUTICALS HOLDING CORP. 8-K


 


Exhibit 10.02


 





SECURITIES
PURCHASE AGREEMENT


 


This Securities Purchase
Agreement (this “Agreement”) is dated as of January 11, 2021, and is
between Tonix Pharmaceuticals Holding Corp., a corporation incorporated under the laws of the state of Nevada (the “Company”),
and each purchaser identified on the signature pages hereto (each, including its successors and assigns, a “Purchaser”
and collectively the “Purchasers”).


 


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


 


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


 


ARTICLE I.



DEFINITIONS


 


1.1        
Definitions. In addition to the terms defined elsewhere in this Agreement, for all purposes of this Agreement, the following
terms have the meanings set forth in this Section 1.1:


 


“A.G.P.”
means A.G.P./Alliance Global Partners, lead placement agent.


 


“Acquiring
Person” shall have the meaning ascribed to such term in Section 4.5.


 


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


 


“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common
control with a Person as such terms are used in and construed under Rule 405 under the Securities Act.


 


“Applicable
Laws” shall have the meaning ascribed to such term in Section 3.1(ss).


 


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


 


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


 


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


 


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


 


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


 


“Closing
Date” means the Trading Day on which all of the Transaction Documents have been executed and delivered by the applicable
parties thereto, and all conditions precedent to (i) the Purchasers’ obligations to pay the Subscription Amount and (ii)
the Company’s obligations to deliver the Shares, in each case, have been satisfied or waived, but in no event later than
the second (2nd) Trading Day following the
date hereof.


 


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


 


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


 


 




    	 	 	 



    	 



    

 


“Common Stock Equivalents”
means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire at any time Common Stock,
including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible
into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.


 


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


 


“Company Counsel”
means, Lowenstein Sandler LLP.


 


“Disclosure Time”
means, (i) if this Agreement is signed on a day that is not a Trading Day or after 9:00 a.m. (New York City time) and before midnight
(New York City time) on any Trading Day, 9:01 a.m. (New York City time) on the Trading Day immediately following the date hereof,
unless otherwise instructed as to an earlier time by A.G.P., and (ii) if this Agreement is signed between midnight (New York City
time) and 9:00 a.m. (New York City time) on any Trading Day, no later than 9:01 a.m. (New York City time) on the date hereof, unless
otherwise instructed as to an earlier time by A.G.P.


 


“DWAC”
shall have the meaning ascribed to such term in Section 2.2(a)(vi).


 


“EDGAR”
means the Commission’s Electronic Data Gathering, Analysis
and Retrieval System.


 


“Environmental
Law” shall have the meaning ascribed to such term in Section 3.1(p).


 


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


 


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


 


“Exempt Issuance”
means the issuance of (a) shares of Common Stock or options to employees, officers, directors, consultants or advisors of the Company
pursuant to any stock or option plan duly adopted for such purpose, by a majority of the non-employee members of the Board of Directors
or a majority of the members of a committee of non-employee directors established for such purpose, (b) securities upon the exercise
or exchange of or conversion of any securities issued hereunder and/or other securities
exercisable or exchangeable for or convertible into shares of Common Stock issued and outstanding on the date of this Agreement,
provided that such securities have not been amended since the date of this Agreement to increase the number of such securities
or to decrease the exercise price, exchange price or conversion price of such securities (other than in connection with stock splits
or combinations) or to extend the term of such securities, (c) securities issued pursuant to acquisitions or strategic transactions
approved by a majority of the disinterested directors of the Company, provided that such securities are issued as “restricted
securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration
statement in connection therewith during the prohibition period in Section 4.12(a) herein and provided that any such issuance shall
only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or
an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits
in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily
for the purpose of raising capital or to an entity whose primary business is investing in securities, and (d) shares of Common
Stock issued to lenders and vendors of the Company; provided that such issuances shall not exceed 100,000 shares in the aggregate
(adjusted for stock splits, recapitalizations and similar transactions), provided that such securities are issued as “restricted
securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration
statement in connection therewith during the prohibition period in Section 4.12(a) herein.


 


“FCPA”
means the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder.


 


“Federal
Reserve” shall have the meaning ascribed to such term in Section 3.1(oo).


 




    	 	 	 



    	 



    

 


“Hazardous
Substances” shall have the meaning ascribed to such term in Section 3.1(p).


 


“Health
Care Laws” shall have the meaning ascribed to such term in Section 3.1(uu).


 


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


 


“Issuer
Free Writing Prospectus” shall have the meaning ascribed to such term in Section 3.1(f)(ii).


 


“IT
Systems” shall have the meaning ascribed to such term in Section 3.1(qq).


 


“Lien”
means a lien, charge, mortgage, pledge, security interest, claim, right of first refusal, pre-emptive right, or other encumbrance
of any kind whatsoever.


 


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


 


“Money Laundering
Laws” shall have the meaning assigned to such term in Section 3.1(pp).


 


“Nevada Counsel”
means Brownstein Hyatt Farber Schreck, LLP, as local Nevada counsel for the Company.


 


“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.


 


“Personal
Data” shall have the meaning ascribed to such term in Section 3.1(qq).


 


“Placement Agency
Agreement” means that certain Placement Agency Agreement by and between the Company and A.G.P., dated as of the date
hereof.


 


“Placement Agent”
means A.G.P


 


“Proceeding”
means an action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation or partial
proceeding, such as a deposition) pending or, to the Company’s knowledge, threatened in writing against the Company, any
Subsidiary or any of their respective properties before or by any court, arbitrator, governmental or administrative agency or regulatory
authority (federal, state, county, local or foreign).


 


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


 


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


 


“Purchaser
Party” shall have the meaning ascribed to such term in Section 4.8.


 


“Registration
Statements” shall have the meaning ascribed to such term in Section 3.1(f)(ii).


 


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


  


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


 


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


 


“Shares”
means the shares of Common Stock issued or issuable to each Purchaser pursuant to this Agreement.


 




    	 	 	 



    	 



    

 


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


 


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


 


“Subsidiary”
and “Subsidiaries” shall have the meanings ascribed to such terms in Section 3.1(a).


 


“Trading Day”
means a day on which the New York Stock Exchange is open for trading.


 


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


 


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


 


“Transfer Agent”
means VStock Transfer, LLC, the current transfer agent of the Company, at its principal office in New York, New York, and any successor
transfer agent of the Company.


 


ARTICLE II.



PURCHASE AND SALE


 


2.1 Closing. On
the Closing Date, upon the terms and subject to the conditions set forth herein, the Company agrees to sell, and the Purchasers,
severally and not jointly, agree to purchase, up to an aggregate of $40,000,000 of Shares. The Company shall deliver to each Purchaser
its respective Shares, and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at
the Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the Closing shall occur at the
offices of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., or such other location as the parties shall mutually agree. Unless
otherwise directed by the Placement Agent, settlement of the Shares shall occur via “Delivery
Versus Payment” (“DVP”) (i.e., on the Closing Date, the Company shall issue
the Shares registered in the Purchasers’ names and addresses and released by the Transfer Agent directly to the account(s)
at the Placement Agent; upon receipt of such Shares, the Placement Agent shall promptly electronically deliver such Shares to the
applicable Purchaser, and payment therefor shall be made by the Placement Agent (or its clearing firm) by wire transfer to the
Company). Notwithstanding anything to the contrary herein and the Purchaser’s Subscription Amount set forth on the signature
pages attached hereto, the number of Shares purchased by a Purchaser (and its Affiliates) hereunder shall not, when aggregated
with all other shares of Common Stock owned by such Purchaser (and its Affiliates) at such time, result in such Purchaser beneficially
owning (as determined in accordance with Section 13(d) of the Exchange Act) in excess of 9.99% of the then issued and outstanding
shares of Common Stock outstanding at the Closing (the “Beneficial Ownership Maximum”), and such Purchaser’s
Subscription Amount, to the extent it would otherwise exceed the Beneficial Ownership Maximum immediately prior to the Closing,
shall be conditioned upon the issuance of Shares at the Closing to the other Purchasers signatory hereto. To the extent that a
Purchaser’s beneficial ownership of the Common Stock would otherwise be deemed to exceed the Beneficial Ownership Maximum,
such Purchasers’ Subscription Amount shall automatically be reduced as necessary in order to comply with this paragraph.


 


2.2        
Deliveries.


 


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


 


(i)        
this Agreement duly executed by the Company;


 




    	 	 	 



    	 



    

 


(ii)       
a legal opinion of Company Counsel, in a form reasonably acceptable to A.G.P.;


 


(iii)      
a legal opinion of Nevada Counsel, in a form reasonably acceptable to A.G.P.;


 


(iv)      
a certificate executed by the Chief Financial Officer of the Company, in form and substance reasonably satisfactory to A.G.P.;


 


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


 


(vi)      
a copy of the irrevocable instructions to the Transfer Agent instructing the Transfer Agent to deliver on an expedited basis via
The Depository Trust Company Deposit or Withdrawal at Custodian system
(“DWAC”) Shares equal to such Purchaser’s Subscription Amount divided
by the Per Share Purchase Price, registered in the name of such Purchaser;


 


(vii)     
Officer’s Certificate, in form and substance satisfactory to the Purchasers;


 


(viii)    
Secretary’s Certificate, in form and substance satisfactory to the Purchasers;
and


 


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


 


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


 


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


 


(ii)       
such Purchaser’s Subscription Amount.


 


2.3        
Closing Conditions.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 




    	 	 	 



    	 



    

 


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


 


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


 


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


 


(vi)       the
Shares shall be approved for listing on The Nasdaq Global Market, subject to official notice of issuance.


  


2.4
Sales During Pre-Settlement Period. Notwithstanding anything herein to the contrary, if at any time on or after the time
of execution of this Agreement by the Company and an applicable Purchaser, through, and including the time immediately prior to
the Closing (the “Pre-Settlement Period”), such Purchaser sells (excluding “short sales” as defined
in Rule 200 of Regulation SHO) to any Person all, or any portion, of any Shares to be issued hereunder to such Purchaser at the
Closing (collectively, the “Pre-Settlement Shares”), such Purchaser shall, automatically hereunder (without
any additional required actions by such Purchaser or the Company), be deemed to be unconditionally bound to purchase, and the Company
shall be deemed unconditionally bound to sell, such Pre-Settlement Shares to such Purchaser at the Closing; provided, that the
Company shall not be required to deliver any Pre-Settlement Shares to such Purchaser prior to the Company’s receipt of the
purchase price of such Pre-Settlement Shares hereunder; and provided further that the Company hereby acknowledges and agrees that
the foregoing shall not constitute a representation or covenant by such Purchaser as to whether or not during the Pre-Settlement
Period such Purchaser shall sell any Shares to any Person and that any such decision to sell any Shares by such Purchaser shall
be made, in the sole discretion of such Purchaser, at the time such Purchaser elects to effect any such sale, if any.  


 


ARTICLE III.



REPRESENTATIONS AND WARRANTIES


 


3.1        
Representations and Warranties of the Company. The Company hereby makes the following representations and warranties to
each Purchaser:


 


(a)       
Subsidiaries. All of the direct and indirect subsidiaries of the Company are set forth in the SEC Reports (each, a “Subsidiary”,
and collectively, the “Subsidiaries”). The Company owns, directly or indirectly, all of the capital stock or
other equity interests of each Subsidiary free and clear of any Liens, and all of the issued and outstanding shares of capital
stock of each Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive and similar rights to subscribe
for or purchase securities. There are no outstanding options, warrants, scrip rights to subscribe to, calls or commitments of any
character whatsoever relating to, or securities, rights or obligations convertible into or exercisable or exchangeable for, or
giving any Person any right to subscribe for or acquire, any capital stock of any Subsidiary, or contracts, commitments, understandings
or arrangements by which any Subsidiary is or may become bound to issue capital stock.


 







    	 	 	 



    	 



    

 


(b)       
Organization and Qualification. The Company and each of the Subsidiaries has been duly organized and validly exists as
a corporation, limited partnership or company in good standing (or the foreign equivalent thereof, if any) under the laws of its
jurisdiction of organization. The Company and each of the Subsidiaries is duly qualified to do business and is in good standing
as a foreign or extra-provincial corporation, partnership, company or limited liability company in each jurisdiction in which
the character or location of its properties (owned, leased or licensed) or the nature or conduct of its business makes such qualification
necessary, except for those failures to be so qualified or in good standing which (individually and in the aggregate) would not
have a Material Adverse Effect. No Proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing or
seeking to revoke, limit or curtail such power and authority or qualification. Neither the Company nor any Subsidiary is in violation
nor default of any of the provisions of its respective certificate or articles of incorporation, bylaws or other organizational
or charter documents. The term “Material Adverse Effect” means an effect, change, event or occurrence that,
alone or in conjunction with any other or others: (i) has or would reasonably be expected to have a material adverse effect on:
(A) the business, general affairs, management, condition (financial or otherwise), results of operations, shareholders’
equity, properties or prospects of the Company and the Subsidiaries, taken as a whole, or (B) the legality, validity or enforceability
of any Transaction Document, (ii) the Company’s ability to perform in any material respect on a timely basis its obligations
under any Transaction Document or (iii) would result in the Prospectus or any amendment thereto containing a misrepresentation
within the meaning of applicable securities laws; provided that a change in the market price or trading volume of
the Common Stock alone shall not be deemed, in and of itself, to constitute a Material Adverse Effect.


 


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


  


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


 


(e)         
Filings, Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization
or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental
authority or other Person in connection with the execution, delivery and performance by the Company of this Agreement, other than:
(i) the filings required pursuant to Section 4.4 of this Agreement, (ii) the filing with the Commission of the Prospectus Supplement,
and (iv) application to The Nasdaq Global Market for the listing of the Shares for trading thereon in the time and manner required
thereby (collectively, the “Required Approvals”).


 




    	 	 	 



    	 



    

 


(f)         
Issuance of the Shares; Qualification; Registration.


 


(i)        
The Shares are duly authorized and, when issued and paid for in accordance with the applicable Transaction Documents, will be duly
and validly issued, fully paid and non-assessable, free and clear of all Liens imposed by the Company. The Company has reserved
from its duly authorized capital stock the maximum number of shares of Common Stock issuable pursuant to this Agreement.


 


(ii)       
The Company was at the time of the filing of each Registration Statement eligible to use Form S-3. The Company meets the general
eligibility requirements for the use of Form S-3 under the Securities Act and has prepared and filed with the Commission a registration
statement under the Securities Act on Form S-3 (i) (File No. 333-237610) on April 8, 2020, providing for the offer and sale, from
time to time, of up to $150,000,000 of the Company’s securities (the “2020 Registration Statement”) and
(ii) the registration statement under the Securities Act on Form S-3 (File No. 333-224586) on May 1, 2018, providing for the offer
and sale, from time to time, of up to $75,000,000, of the Company’s securities (the “2018 Registration Statement,
and together with the 2020 Registration Statement, the “Registration
Statements”). The proposed sale of the Shares shall be made pursuant to General
Instruction I.B.1. of Form S-3. The 2020 Registration Statement became effective pursuant to Rule 467(a) under the Securities Act
on April 17, 2020. The 2018 Registration Statement became effective pursuant to Rule 467(a) under the Securities Act on May 16,
2018. The prospectus included in the 2018 Registration Statement at the time it became effective, including documents incorporated
therein by reference, is referred to herein as the “2018 Base Prospectus” and the prospectus included in the
2020 Registration Statement at the time it became effective, including documents incorporated therein by reference, is referred
to herein as the “2020 Base Prospectus”, and the 2018 Base Prospectus and the 2020 Base Prospectus are together
referred to herein as the “Base Prospectuses”. No stop order suspending the effectiveness of either of the 2018
Registration Statement or the 2020 Registration Statement has been issued under the Securities Act and no proceedings
for that purpose have been instituted or are pending or, to the knowledge of the Company, threatened by the Commission and any
request on the part of the Commission for additional information has been complied with.


 


The term “Prospectus”
means the prospectus supplement (the “Prospectus Supplement”) relating to the offering and sale of the Shares
to be filed with the Commission pursuant to the General Instructions of Form S-3, together with the Base Prospectuses, including
all documents incorporated therein by reference.


 


Any “issuer
free writing prospectus” (as defined in Rule 433 under the Securities Act) relating to the Shares is hereafter referred to
as an “Issuer Free Writing Prospectus”. Any reference
herein to the Base Prospectuses and the Prospectus shall be deemed to refer to and include the documents incorporated by reference
therein as of the date of filing thereof; and any reference herein to any “amendment” or “supplement” with
respect to any of the Base Prospectuses and the Prospectus shall be deemed to refer to and include (i) the filing of any document
with the Commission incorporated or deemed to be incorporated therein by reference after the date of filing of such Base Prospectus
or Prospectus and (ii) any such document so filed.


 


All references
in this Agreement to the 2018 Registration Statement, 2020 Registration Statement, the Base Prospectuses, or the Prospectus, or
any Issuer Free Writing Prospectus, or any amendments or supplements to any of the foregoing, shall be deemed to include any copy
thereof filed with the Commission on EDGAR.


 


(g)       
Securities Act Compliance. Each Registration Statement complies, and the Prospectus and any further amendments or supplements
to each Registration Statement or the Prospectus will comply, with the applicable provisions of the Securities Act. Each part of
each Registration Statement, when such part became effective, did not and 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 statements therein not misleading The Prospectus,
as of its filing date, and any amendment thereof or supplement thereto, did not and will not contain 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 under which they
were made, not misleading.


 




    	 	 	 



    	 



    

 


(h)       
No Stop Orders. No order preventing or suspending the use of either Base Prospectus or any Issuer Free Writing Prospectus
has been issued by the Commission.


 


(i)        
Capitalization. The equity capitalization of the Company is as set forth in the SEC Reports (as defined below). All of the
issued and outstanding shares of Common Stock are fully paid and non-assessable and have been duly and validly authorized and issued,
in compliance with all federal and state securities laws and not in violation of or subject to any preemptive or similar right
that entitles any person to acquire from the Company any Common Stock or other security of the Company or any security convertible
into, or exercisable or exchangeable for, Common Stock or any other such security, except for such rights as may have been fully
satisfied or waived prior to the date hereof. The Company has no outstanding options, warrants, scrip rights to subscribe to, calls
or commitments of any character whatsoever relating to, or securities, rights or obligations convertible into or exercisable or
exchangeable for, or giving any Person any right to subscribe for or acquire, any Common Stock, or contracts, commitments, understandings
or arrangements by which the Company is or may become bound to issue additional Common Stock or Common Stock Equivalents. No Person
has any right of first refusal, pre-emptive right, right of participation, or any similar right to participate in the transactions
contemplated by the Transaction Documents. The issuance and sale of the Shares will not obligate the Company to issue Common Stock
or other securities to any Person (other than the Purchasers) and will not result in a right of any holder of Company securities
to adjust the exercise, conversion, exchange or reset price under any of such securities. There are no outstanding securities or
instruments of the Company with any provision that adjusts the exercise, conversion, exchange or reset price of such security or
instrument upon an issuance of securities by the Company. There are no outstanding securities or instruments of the Company that
contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which
the Company is or may become bound to redeem a security of the Company. Except for the Required Approvals, no further approval
or authorization of any shareholder
of the Company, the Board of Directors or others is required for the issuance and sale of the Shares. There are no shareholders
agreements, voting agreements or other similar
agreements with respect to the Company’s capital stock to which the Company is a
party or, to the knowledge of the Company, between or among any of the Company’s shareholders.


 


(j)        
Reports. The Company has filed all reports, schedules, forms, statements and other documents required to be filed by the
Company under the Securities Act and Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the two years preceding
the date hereof (or such shorter period as the Company was required by law or regulation to file such material) (the foregoing
materials, including the exhibits thereto and documents incorporated by reference therein, together with the Prospectus and the
Prospectus Supplements, being collectively referred to herein as the “SEC Reports”)
on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration
of any such extension. As of their respective dates, the SEC Reports complied in all material respects with the requirements of
the Securities Act and the Exchange Act, as applicable, and none of the SEC Reports, when filed, contained any untrue statement
of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading.


 


(k)       
Financial Statements. The consolidated financial statements, including the notes thereto, included or incorporated by reference
in each Registration Statement and the Prospectus comply in all material respects with applicable accounting requirements and the
rules and regulations of the Commission with respect thereto as in effect at the time of filing. Such financial statements have
been prepared in accordance with generally accepted accounting principles applied on a consistent basis during the periods involved,
except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements
may not contain all footnotes required by generally accepted accounting principles, and fairly present in all material respects
the financial position of the Company and its consolidated Subsidiaries as of and for the dates thereof and the results of operations
and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, immaterial, year-end audit
adjustments.


 


(l)        
Material Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest consolidated financial statements
included in or incorporated by reference into each Registration Statement and the Prospectus, except as set forth in each Registration
Statement and the Prospectus, (i) there has been no event, occurrence or development that has had or that could reasonably be expected
to result in a Material Adverse Effect, (ii) neither the Company nor any Subsidiary has incurred any liabilities (contingent or
otherwise) other than (A) trade payables and accrued expenses incurred in the ordinary course of business consistent with past
practice and (B) liabilities not required to be reflected in
the Company’s financial statements pursuant to generally accepted accounting principles or disclosed in filings made with
the Commission, (iii) the Company has not altered its method of accounting, (iv) the Company has not declared or made any dividend
or distribution of cash or other property to its stockholders or purchased, redeemed or made any agreements
to purchase or redeem any shares of its capital stock and (v) the Company has not issued any equity securities to any officer,
director or Affiliate, except pursuant to existing Company stock option plans. The Company does not have pending before the Commission
any request for confidential treatment of information. Except for the issuance of the Shares contemplated by this Agreement , no
event, liability, fact, circumstance, occurrence or development has occurred or exists or is reasonably expected to occur or exist
with respect to the Company or its Subsidiaries or their respective businesses, prospects, properties, operations, assets or financial
condition that would be required to be disclosed by the Company under applicable securities laws at the time this representation
is made or deemed made that has not been publicly disclosed at least one (1) Trading Day prior to the date that this representation
is made.


 




    	 	 	 



    	 



    




 


(m)      
Litigation. There is no material action, suit, inquiry, notice of violation, proceeding
or investigation pending or, to the knowledge of the Company, threatened against or affecting the Company, any Subsidiary or any
of their respective properties before or by any court, arbitrator, governmental or administrative agency or regulatory authority
(federal, state, county, local or foreign) (collectively, an “Action”)
which adversely affects or challenges the legality, validity or enforceability of any of the Transaction Documents or the Shares.
The Company has disclosed, in the documents filed by the Company pursuant to Sections 12, 13, 14 or 15 of the Exchange Act and
incorporated or deemed to be incorporated by reference into the Prospectus, all such information that it is required to disclose
in respect of any Action pursuant to the requirements of the Securities Act and the Exchange Act, as applicable. Neither the Company
nor any Subsidiary, nor any director or officer thereof, is or has been the subject of any Action involving a claim of violation
of or liability under federal or state securities laws or a claim of breach of fiduciary duty. There has not been, and to the knowledge
of the Company, there is not pending or contemplated, any material investigation by the Commission involving the Company or any
current or former director or officer of the Company which is required to be disclosed in the SEC Reports. The Commission has not
issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company or any Subsidiary
under the Exchange Act or the Securities Act.


  


(n)       
Labor Relations. No labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the employees
of the Company, which could reasonably be expected to result in a Material Adverse Effect. None of the Company’s or its Subsidiaries’
employees is a member of a union that relates to such employee’s relationship with the Company or such Subsidiary, and neither
the Company nor any of its Subsidiaries is a party to a collective bargaining agreement,
and the Company and its Subsidiaries believe that their relationships with their employees are good. To the knowledge of the Company,
no executive officer of the Company or any Subsidiary, is, or is now expected to be, in violation of any material term of any employment
contract, confidentiality, disclosure or proprietary information agreement or non-competition
agreement, or any other contract or agreement
or any restrictive covenant in favor of any third party, and the continued employment of each such executive officer does not subject
the Company or any of its Subsidiaries to any liability with respect to any of the foregoing matters. The Company and its Subsidiaries
are in compliance with all U.S. federal, state, local and foreign laws and regulations relating to employment and employment practices,
terms and conditions of employment and wages and hours, except where the failure to be in compliance could not, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect


 


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


 




    	 	 	 



    	 



    

 


(p)       
Environmental Law.   There has been no storage, generation, transportation, handling, use, treatment, disposal,
discharge, emission, contamination, release or other activity involving any kind of hazardous, toxic or other wastes, pollutants,
contaminants, petroleum products or other hazardous or toxic substances, chemicals or materials (“Hazardous
Substances”) by, due to, on behalf of, or caused by the Company or any Subsidiary (or, to the Company’s knowledge,
any other entity for whose acts or omissions the Company is or may be liable) upon any property now or previously owned, operated,
used or leased by the Company or any Subsidiary, or upon any other property, which would be a violation of or give rise to any
liability under any applicable law, rule, regulation, order, judgment, decree or
permit, common law provision or other legally binding standard relating to pollution or protection of human health and the environment
(“Environmental Law”), except for violations and liabilities
which, individually or in the aggregate, would not have a Material Adverse Effect. There has been no disposal, discharge, emission
contamination or other release of any kind at, onto or from any such property or into the environment surrounding any such property
of any Hazardous Substances with respect to which the Company or any Subsidiary has knowledge, except as would not, individually
or in the aggregate, have a Material Adverse Effect. There is no pending or, to the best of the Company’s knowledge, threatened
administrative, regulatory or judicial action, claim or notice of noncompliance or violation, investigation or proceedings
relating to any Environmental Law against the Company or any Subsidiary, except as would not, individually or in the aggregate,
have a Material Adverse Effect. No property of the Company or any Subsidiary is subject to any Lien under any Environmental Law.
Except as disclosed in the Prospectus, neither the Company nor any Subsidiary is subject to any order, decree, agreement
or other individualized legal requirement related to any Environmental Law, which, in any case (individually or in the aggregate),
would have a Material Adverse Effect. The Company and each Subsidiary has all permits, authorizations
and approvals required under any applicable Environmental Laws and are each in compliance with their requirements. In the ordinary
course of its business, the Company periodically reviews the effect of Environmental Laws on the business, operations and properties
of the Company and the Subsidiaries, in the course of which it identifies and evaluates associated costs and liabilities (including,
without limitation, any capital or operating expenditures required for clean-up, closure or remediation of properties or compliance
with Environmental Laws, or any permit, license or approval, any related constraints on operating activities and any potential
liabilities to third parties). On the basis of such review, the Company has reasonably concluded that such associated costs and
liabilities would not, individually or in the aggregate, have a Material Adverse Effect.


 


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


 


(r)       
Regulatory Permits. The Company possesses all licenses, certificates, registrations, authorizations
and permits required by the U.S. Food and Drug Administration (“FDA”) and other governmental or regulatory authorities
performing functions similar to those performed by the FDA and have made all declarations and filings with, the appropriate local,
state, federal or foreign governmental or regulatory agencies or bodies (including, without limitation, those administered by the
FDA or by any foreign, federal, state or local governmental or regulatory authority performing functions similar to those performed
by the FDA) that are necessary for the ownership or lease of their respective properties or the conduct of their respective businesses
as described in each Registration Statement and the Prospectus (collectively, the “Material Permits”) except where
any failures to possess or make the same would not, singularly or in the aggregate, have a Material Adverse Effect. The Company
is in compliance with all such Material Permits, including with all conditions and limitations on the commercial rights granted
by such Material Permits; all such Material Permits are valid and in full force and effect, except where the validity or failure
to be in full force and effect would not, singularly or in the aggregate, have a Material Adverse Effect. The Company has not received
notification of any revocation, modification, suspension, termination or invalidation (or proceedings
related thereto) of any such Material Permit and the Company has no reason to believe that any such Material Permit will not be
renewed.


  




    	 	 	 



    	 



    

 


(s)       
Intellectual Property. To the Company’s knowledge, the Company or its Subsidiaries owns or possesses or has valid
rights to use all patents, patent applications, trademarks, service marks, trade names, trademark registrations, service mark registrations,
copyrights, licenses, inventions, trade secrets and similar rights (“Intellectual
Property Rights”) necessary for the conduct of the business of the Company and its Subsidiaries as currently carried on and
as described in each Registration Statement and the Prospectus. To the knowledge of the Company, no action or use by the Company
necessary for the conduct of its business as currently carried on and as described in the Registration Statements and the Prospectus
will involve or give rise to any infringement of, or license or similar fees for, any Intellectual Property Rights of others. Neither
the Company nor any of its Subsidiaries has received any notice alleging any such infringement, fee or conflict with asserted Intellectual
Property Rights of others. Except as would not reasonably be expected to result, individually or in the aggregate, in a Material
Adverse Effect (A) to the knowledge of the Company, there is no infringement, misappropriation or violation by third parties of
any of the Intellectual Property Rights owned by the Company; (B) there is no pending or, to the knowledge of the Company, threatened
action, suit, proceeding or claim by others challenging the rights of the Company in
or to any such Intellectual Property Rights, and the Company is unaware of any facts which would form a reasonable basis for any
such claim, that would, individually or in the aggregate, together with any other claims in this Section 3.1(s), reasonably be
expected to result in a Material Adverse Effect; (C) the Intellectual Property Rights owned by the Company and, to the knowledge
of the Company, the Intellectual Property Rights licensed to the Company have not been adjudged by a court of competent jurisdiction
invalid or unenforceable, in whole or in part, and there is no pending or, to the Company’s knowledge, threatened action,
suit, proceeding or claim by others challenging the validity or scope of any such Intellectual
Property Rights, and the Company is unaware of any facts which would form a reasonable basis for any such claim that would, individually
or in the aggregate, together with any other claims in this Section 3.1(s), reasonably be expected to result in a Material Adverse
Effect; (D) there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding
or claim by others that the Company infringes, misappropriates or otherwise violates any Intellectual Property Rights or other
proprietary rights of others, the Company has not received any written notice of such claim and the Company is unaware of any other
facts which would form a reasonable basis for any such claim that would, individually or in the aggregate, together with any other
claims in this Section 3.1(s), reasonably be expected to result in a Material Adverse Effect; and (E) to the Company’s knowledge,
no employee of the Company is in or has ever been in violation in any material respect 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 and could reasonably be expected to result, individually or in the aggregate, in a Material Adverse
Effect. To the Company’s knowledge, all material technical information developed by and belonging to the Company which has
not been disclosed in a filed patent application has been kept confidential. The Company is not a party to or bound by any options,
licenses or agreements with respect to the Intellectual Property Rights of any other
person or entity that are required to be set forth in the Registration Statements and the Prospectus and are not described therein.
The Registration Statements and the Prospectus contain in all material respects the same description of the matters set forth in
the preceding sentence. None of the technology employed by the Company has been obtained or is being used by the Company in violation
of any contractual obligation binding on the Company or, to the Company’s knowledge, any of its officers, directors or employees,
or otherwise in violation of the rights of any persons. 


 


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


 


(u)       
Transactions With Affiliates and Employees. None of the officers or directors of the Company or any Subsidiary and, to the
knowledge of the Company, none of the employees of the Company or any Subsidiary is presently a party to any transaction with the
Company or any Subsidiary (other than for services as employees, officers and directors), including any contract, agreement
or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or
from, providing for the borrowing of money from or lending of money to or otherwise requiring payments to or from any officer,
director or such employee or, to the knowledge of the Company,
any entity in which any officer, director, or any such employee has a substantial interest or is an officer, director, trustee,
stockholder, member or partner, in each case in excess of the lesser of $120,000 or 1% of the Company’s aggregate assets
as of December 31, 2019, other than for (i) payment of salary or consulting fees for services rendered, (ii) reimbursement for
expenses incurred on behalf of the Company and (iii) other employee benefits, including stock option agreements
under any stock option plan of the Company.


 




    	 	 	 



    	 



    




 


(v)       
Sarbanes-Oxley; Internal Accounting Controls. The Company and the Subsidiaries and their respective officers and directors
are in compliance with the applicable provisions of the Sarbanes-Oxley Act of 2002, as amended. The Company and the Subsidiaries
maintain a system of internal accounting controls sufficient to provide reasonable assurance that: (i) transactions are executed
in accordance with management’s general or specific authorizations,
(ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with U.S. GAAP and to maintain
asset accountability, (iii) access to assets is permitted only in accordance with management’s general or specific authorization,
and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences. The Company and the Subsidiaries have established disclosure controls and procedures
(as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company and the Subsidiaries and designed such disclosure controls
and procedures to ensure that information required to be disclosed by the Company in the reports it files or submits under the
Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules
and forms. The Company’s certifying officers have evaluated the effectiveness of the disclosure controls and procedures of
the Company and the Subsidiaries as of applicable dates specified under the Exchange Act (such date, the “Evaluation
Date”). The Company presented in its most recently filed annual report on Form 10-K the conclusions of the certifying
officers about the effectiveness of the disclosure controls and procedures based on their evaluations as of the Evaluation Date.
Except as set forth in the Prospectus, since the Evaluation Date, there have been no changes in the internal control over financial
reporting (as such term is defined in the Exchange Act) of the Company and the Subsidiaries that have materially affected, or is
reasonably likely to materially affect, the internal control over financial reporting of the Company and the Subsidiaries.


  


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


 


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


 


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


 


(z)       
Listing and Maintenance Requirements. The Company is subject to the reporting requirements of Section 13 of the Exchange
Act and files periodic reports with the SEC; the Shares are registered with the SEC under Section 12(b) of the Exchange Act and
the Company is not in breach of any filing or other requirements under the Exchange Act. The Company has not received any notice
from that the Commission is contemplating terminating such registration Except as disclosed in the SEC Reports, the Company has
not, in the 12 months preceding the date hereof, received notice from any Trading Market on which the Common Stock are or have
been listed or quoted to the effect that the Company is not in compliance with the listing or maintenance requirements of such
Trading Market. The Company is, and has no reason to believe that it will not in the foreseeable future continue to be, in compliance
with all such listing and maintenance requirements. The Common Stock is currently eligible for electronic transfer through the
Depository Trust Company or another established clearing corporation and the Company is current in payment of the fees to the Depository
Trust Company (or such other established clearing corporation) in connection with such electronic transfer.


 




    	 	 	 



    	 



    

  


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


 


(bb)     
Disclosure. Except with respect to the material terms and conditions of the transactions contemplated by the Transaction
Documents, the Company confirms that neither it nor any other Person acting on its behalf has provided any of the Purchasers or
their agents or counsel with any information that it believes constitutes or might constitute material, non-public information
which is not otherwise disclosed in the Prospectus Supplement. The Company understands and confirms that the Purchasers will rely
on the foregoing representation in effecting transactions in securities of the Company. All of the disclosure furnished by or on
behalf of the Company to the Purchasers regarding the Company and its Subsidiaries, their respective businesses and the transactions
contemplated hereby is true and correct in all material respects and does not contain any untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements made therein, in the light of the circumstances under
which they were made, not misleading. The press releases disseminated by the Company during the twelve months preceding the date
of this Agreement taken as a whole do not contain any untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were
made and when made, not misleading. The Company acknowledges and agrees that no Purchaser makes or has made any representations
or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Section 3.2 hereof.


 


(cc)     
No Integrated Offering. Assuming the accuracy of the Purchasers’ representations and warranties set forth in Section
3.2, neither the Company, nor any of its Affiliates, nor any Person acting on its or their behalf has, directly or indirectly,
made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would
cause this offering of the securities to be integrated with prior offerings by the Company for purposes of (i) the Securities Act,
or (ii) any applicable shareholder approval provisions of any Trading Market on which any of the securities of the Company are
listed or designated.


 


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


 




    	 	 	 



    	 



    

 


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


 


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


  


(gg)     
Accountants. The Company’s independent registered public accounting firm is as set forth in the Prospectus. To the
knowledge and belief of the Company, such accounting firm (i) is a registered public accounting firm as required by the Exchange
Act and (ii) shall express its opinion with respect to the financial statements to be included in the Company’s Annual Report
on Form 10-K for the fiscal year ended December 31, 2020.


 


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


 


(ii)       
Acknowledgment Regarding Purchaser’s Trading Activity. Anything in this Agreement or elsewhere herein to the contrary
notwithstanding (except for Sections 3.2(e) and 4.14 hereof), it is understood and acknowledged by the Company that: (i) none of
the Purchasers has been asked by the Company to agree, nor has any Purchaser agreed, to desist from purchasing or selling, long
and/or short, securities of the Company, or “derivative” securities based on securities issued by the Company or to
hold the Shares for any specified term; (ii) past or future open market or other transactions by any Purchaser, specifically including,
without limitation, Short Sales or “derivative” transactions, before or after the closing
of this or future private placement transactions, may negatively impact the market price of the Company’s publicly-traded
securities; (iii) any Purchaser, and counter-parties in “derivative” transactions to which any such Purchaser is a
party, directly or indirectly, presently may have a “short” position in the Common Stock, and (iv) each Purchaser shall
not be deemed to have any affiliation with or control over any arm’s length counter-party in any “derivative”
transaction. The Company further understands and acknowledges that (y) one or more Purchasers may engage in hedging activities
(in material compliance with applicable laws) at various times during the period
that the Shares are outstanding, and (z) such hedging activities (if any) could reduce the value of the existing shareholders’
equity interests in the Company at and after the time that the hedging activities are being conducted. The Company acknowledges
that such aforementioned hedging activities do not constitute a breach of any of the Transaction Documents.


 


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


 




    	 	 	 



    	 



    




  


(kk)     
Office of Foreign Assets Control. Neither the Company nor any Subsidiary nor, to the Company’s knowledge, any director,
officer, agent, employee or affiliate of the Company or any Subsidiary is currently subject
to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S.
Treasury Department (“OFAC”) and the Company will not, directly or indirectly, use the proceeds of the offering 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.


 


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


 


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


 


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


 


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


 


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


 


(qq)     
Information Technology. The Company’s and the Subsidiaries’ information technology assets and equipment, computers,
systems, networks, hardware, software, websites, applications, and databases (collectively, “IT
Systems”) operate and perform in all material respects as required in connection with the operation of the business of
the Company and the Subsidiaries as currently conducted. The Company, and the Subsidiaries maintain commercially reasonable controls,
policies, procedures, and safeguards to maintain and protect their material confidential information and the integrity, continuous
operation, redundancy and security of all IT Systems and all personal, personally identifiable, sensitive, confidential or regulated
data (“Personal Data”) processed and stored thereon, and to the
knowledge of the Company, there have been no breaches, incidents, violations, outages, compromises or unauthorized uses of or accesses
to same, except for those that have been remedied without material cost or liability or the duty to notify any other person, nor
any incidents under internal review or investigations relating to the same. The Company and the Subsidiaries
are presently in compliance in all material respects with all applicable laws or
statutes and all applicable judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority,
internal policies and contractual obligations relating to the privacy and security of IT Systems and Personal Data and to the protection
of such IT Systems and Personal Data from unauthorized use, access, misappropriation or modification, except for any such noncompliance
that would not have a Material Adverse Effect.


 




    	 	 	 



    	 



    




 


(rr)       
Other Covered Persons. Other than A.G.P., the Company is not aware of any person that has been or will be paid (directly
or indirectly) remuneration for solicitation of purchasers in connection with the sale
of any Shares.


 


(ss)      
Regulatory. Except as described in each Registration Statement and the Prospectus, as applicable, the Company and its Subsidiaries
(i) are and at all times have been in material compliance with all statutes, rules and regulations applicable to the ownership,
testing, development, manufacture, packaging, processing, use, distribution, marketing, advertising, labeling, promotion, sale,
offer for sale, storage, import, export or disposal of any product manufactured or distributed by the Company including, without
limitation the Federal Food, Drug and Cosmetic Act (21 U.S.C. §301 et seq.), the federal Anti-Kickback
Statute (42 U.S.C. §1320a-7b(b)), the Health Insurance Portability and Accountability Act of 1996, as amended by the Health
Information Technology for Economic and Clinical Health Act of 2009, and the Patient Protection and Affordable Care Act of 2010,
as amended by the Health Care and Education Affordability Reconciliation
Act of 2010, the regulations promulgated pursuant to such laws, and any successor government programs and comparable state laws,
regulations relating to Good Clinical Practices and Good Laboratory Practices
and all other local, state, federal, national, supranational and foreign laws, manual provisions, policies and administrative guidance
relating to the regulation of the Company (collectively, the “Applicable
Laws”); (ii) have not received any notice from any court or arbitrator or governmental or regulatory authority
or third party alleging or asserting noncompliance with any Applicable Laws or any licenses, exemptions, certificates, approvals,
clearances, authorizations, permits, registrations and supplements or amendments thereto required by any such Applicable Laws (“Authorizations”);
(iii) possess all material Authorizations and such Authorizations are valid and in full force and effect and are not in violation
of any term of any such Authorizations; (iv) have not received written notice of any claim, action, suit, proceeding,
hearing, enforcement, investigation arbitration or other action from any court or arbitrator or governmental or regulatory authority
or third party alleging that any product operation or activity is in violation of any Applicable Laws or Authorizations nor is
any such claim, action, suit, proceeding, hearing, enforcement, investigation, arbitration
or other action threatened; (v) have not received any written notice that any court or arbitrator or governmental or regulatory
authority has taken, is taking or intends to take, action to limit, suspend, materially modify or revoke any Authorizations nor
is any such limitation, suspension, modification or revocation threatened; (vi) have 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 complete and accurate on the date filed (or were corrected or supplemented by a subsequent submission);
and (vii) are not a party to any corporate integrity agreements, monitoring agreements,
consent decrees, settlement orders, or similar agreements with or imposed by any governmental
or regulatory authority.


  


(tt)      
Material Agreements. The agreements and documents described in the Registration
Statements or Prospectus conform in all material respects to the descriptions thereof contained or incorporated by reference therein
conformed in all material respects to the requirements of the Securities Act or the Exchange
Act, as applicable at the time filed, and were filed on a timely basis with the Commission and none of such documents contained
an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; any further documents so filed and there are no agreements
or other documents required by the Securities Act and the rules and regulations thereunder to be described in the Prospectus or
to be filed with the Commission as exhibits to the Registration Statements or to be incorporated by reference in the Registration
Statements or Prospectus, that have not been so described or filed or incorporated by reference.


 


(uu)     
Compliance with Healthcare Laws. The tests, studies, and trials conducted by or on
behalf of or sponsored by the Company or any of its subsidiaries were and, if still pending, are being conducted in all material
respects in accordance with all applicable Health Care Laws (as defined below) and standard medical and scientific research protocols,
procedures, and controls; none of the Company or any of its subsidiaries has received any written notice, correspondence, or other written communication
from any regulatory agency or any institutional review board or comparable body requiring or threatening the termination, suspension,
or material modification of any tests, studies, or trials, or commercial distribution, and to the knowledge of the Company and
its subsidiaries, there are no reasonable grounds for the same. Each of the Company and its Subsidiaries has obtained (or caused
to be obtained) the informed consent of each human subject who participated in a test, study, or trial. None of the tests, studies,
or trials involved any investigator who has been disqualified as a clinical investigator.


 




    	 	 	 



    	 



    




 


The
Company and its directors, officers, employees, and agents are, and at all times prior hereto have been, in material compliance
with, all health care laws and regulations applicable to the Company or any of its product candidates or activities, including
development and testing of pharmaceutical products, kickbacks, recordkeeping, documentation requirements, the hiring of employees
(to the extent governed by Health Care Laws), quality, safety, privacy, security, licensure, accreditation or any other aspect
of developing and testing health care or pharmaceutical products (collectively, “Health
Care Laws”). The Company has not received any notification, correspondence
or any other written or oral communication, including notification of any pending or threatened claim, suit, proceeding,
hearing, enforcement, investigation, arbitration or other action from any governmental authority, including, without limitation,
the United States Food and Drug Administration, the Drug Enforcement Agency,
the Centers for Medicare & Medicaid Services, and the U.S. Department
of Health and Human Services Office of Inspector General, of potential or actual non-compliance by, or liability of, the Company
under any Health Care Laws. To the Company’s knowledge, there are no facts or circumstances that would reasonably be expected
to give rise to liability of the Company under any Health Care Laws, except that would not individually or in the aggregate have
a Material Adverse Effect.


 


(vv)
Integration. The Company has not sold or issued any securities that would be integrated
with the offering of the securities contemplated by this Agreement pursuant to the Securities Act or the interpretations thereof
by the Commission.


  


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


 


(a)       
Organization; Authority. Such Purchaser is either an individual or an entity duly incorporated or formed, validly existing
and in good standing under the laws of the jurisdiction of its incorporation or formation with full right, corporate, partnership,
limited liability company or similar power and authority to enter into and to consummate the transactions contemplated by the Transaction
Documents and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of the Transaction Documents
and performance by such Purchaser of the transactions contemplated by the Transaction Documents have been duly authorized by all
necessary corporate, partnership, limited liability company or similar action, as applicable, on the part of such Purchaser. Each
Transaction Document to which it is a party has been duly executed by such Purchaser, and when delivered by such Purchaser in accordance
with the terms hereof or thereof, will constitute the valid and legally binding obligation of such Purchaser, enforceable against
it in accordance with its terms, except: (i) as limited by general equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally; (ii)
as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies; and (iii)
insofar as indemnification and contribution provisions may be limited by applicable
law.


  


(b)        
Understandings or Arrangements. Such Purchaser is acquiring the Shares as principal for its own account and has no direct
or indirect arrangement or understandings with any other persons to distribute or regarding the distribution of such Shares (this
representation and warranty not limiting such Purchaser’s right to sell the Shares pursuant to the Registration Statements
or otherwise in compliance with applicable federal and state securities laws). Such Purchaser is acquiring the Shares hereunder
in the ordinary course of its business. Such Purchaser is acquiring such Shares as principal for his, her or its own account and
not with a view to or for distributing or reselling such Shares or any part thereof in violation of the Securities Act or any applicable
state securities law, has no present intention of distributing any of such securities
in violation of the Securities Act or any applicable state securities law and has no direct or indirect arrangement or understandings
with any other persons to distribute or regarding the distribution of such Shares in violation of the Securities Act or any applicable
state securities law (this representation and warranty not limiting such
Purchaser’s right to sell such Shares pursuant to a registration statement or otherwise in compliance with applicable federal
and state securities laws).


 




    	 	 	 



    	 



    




 


(c)        
Purchaser Status. At the time such Purchaser was offered the Shares, it was, and as of the date hereof it is, either: (i)
an “accredited investor” as defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) under the Securities Act or
(ii) a “qualified institutional buyer” as defined in Rule 144A(a) under the Securities Act.


 


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


 


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


 


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


 


(g)       
General Solicitation. Such Purchaser is not purchasing the Shares as a result of any advertisement, article, notice or other
communication regarding the Shares published in any newspaper, magazine or similar media or broadcast over television or radio
or presented at any seminar or, to the knowledge of such Purchaser, any other general solicitation or general advertisement.


 


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


 


 




    	 	 	 



    	 



    




 


ARTICLE IV.



OTHER AGREEMENTS OF THE PARTIES


 


4.1       Legends.
The Shares shall be issued free of legends.


 


4.2      
[Reserved.]


 


4.3      
Integration. The Company shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any
security (as defined in Section 2 of the Securities Act) that would be integrated with the offer or sale of the Shares for purposes
of the rules and regulations of any Trading Market such that it would require shareholder approval prior to the closing
of such other transaction unless shareholder approval is obtained before the closing of
such subsequent transaction.


 


4.4      
Securities Laws Disclosure; Publicity. The Company shall (a) by the Disclosure Time issue a press release disclosing the
material terms of the transactions contemplated hereby, (b) file a Current Report on Form 8-K, including the Transaction Documents
as exhibits thereto, with the Commission within the time required by the Exchange Act. From and after the issuance of such press
release, the Company represents to the Purchasers that it shall have publicly disclosed all material, non-public information delivered
to any of the Purchasers by the Company or any of the Subsidiaries, or any of their respective officers, directors, employees or
agents in connection with the transactions contemplated by the Transaction Documents. In addition, effective upon the issuance
of such press release, the Company acknowledges and agrees that any and all confidentiality or similar obligations under any agreement,
whether written or oral, between the Company, any of the Subsidiaries or any of their respective officers, directors, agents, employees
or Affiliates on the one hand, and any of the Purchasers or any of their Affiliates on the other hand, shall terminate. The Company
and each Purchaser shall consult with each other in issuing any other press releases with respect to the transactions contemplated
hereby, and neither the Company nor any Purchaser shall issue any such press release nor otherwise make any such public statement
without the prior consent of the Company, with respect to any press release of any Purchaser, or without the prior consent of each
Purchaser, with respect to any press release of the Company, which consent shall not unreasonably be withheld or delayed, except
if such disclosure is required by law, in which case the disclosing party shall promptly provide the other party with prior notice
of such public statement or communication. Notwithstanding the foregoing, the Company shall not publicly disclose the name of any
Purchaser, or include the name of any Purchaser in any filing with the Commission or any regulatory agency or Trading Market, without
the prior written consent of such Purchaser, except (a) as required by federal securities law in connection with the filing of
final Transaction Documents with the Commission and (b) to the extent such disclosure is required by law or Trading Market regulations,
in which case the Company shall provide the Purchasers with prior notice of such disclosure permitted under this clause (b).


 


4.5      
Shareholder Rights Plan. No claim will be made or enforced by the Company or, with the consent of the Company, any other
Person, that any Purchaser is an “Acquiring
Person” under any control share acquisition, business combination, poison pill (including any distribution under a rights
agreement) or similar anti-takeover plan or arrangement in effect or hereafter adopted
by the Company, or that any Purchaser could be deemed to trigger the provisions of any such plan or arrangement, by virtue of receiving
Shares under the Transaction Documents or under any other agreement between the Company
and the Purchasers.


 


4.6      
Non-Public Information. Except with respect to the material terms and conditions of the transactions contemplated by the
Transaction Documents, which shall be disclosed pursuant to Section 4.4, the Company covenants and agrees that neither it, nor
any other Person acting on its behalf will provide any Purchaser or any Purchaser’s agents or counsel with any information
that constitutes, or the Company reasonably believes constitutes, material non-public information, unless prior thereto such Purchaser
shall have consented to the receipt of such information and agreed with the Company to keep such information confidential. The
Company understands and confirms that each Purchaser shall be relying on the foregoing covenant in effecting transactions in securities
of the Company. To the extent that the Company delivers any material,
non-public information to a Purchaser without such Purchaser’s consent, the Company hereby covenants and agrees that such
Purchaser shall not have any duty of confidentiality to the Company, any of the Subsidiaries, or any of their respective officers,
directors, agents, employees or Affiliates, or a duty to the Company, any of the Subsidiaries or any of their respective officers,
directors, agents, employees or Affiliates not to trade on the basis of, such material, non-public information, provided that the
Purchaser shall remain subject to applicable law. To the extent that any notice provided
pursuant to any Transaction Document constitutes, or contains, material, non-public information regarding the Company or any Subsidiaries,
the Company shall simultaneously file such material non-public information on with the Commission pursuant to a Current Report
on Form 8-K. The Company understands and confirms that each Purchaser shall be relying on the foregoing covenant in effecting transactions
in securities of the Company.


 




    	 	 	 



    	 



    




 


4.7      
Use of Proceeds. The Company shall use the net proceeds from the sale of the Shares hereunder for working capital purposes
and shall not use such proceeds: (a) for the satisfaction of any portion of the Company’s debt (other than payment of trade
payables in the ordinary course of the Company’s business and prior practices), (b) for the redemption of any Common Stock
or Common Stock Equivalents, (c) for the settlement of any outstanding litigation, or (d) in violation of FCPA or OFAC regulations.


 


4.8      
Indemnification of Purchasers. Subject to the provisions of this Section 4.8, the Company will indemnify and hold each Purchaser
and its directors, officers, shareholders, members, partners, employees and agents (and any other Persons with a functionally equivalent
role of a Person holding such titles notwithstanding a lack of such title or any other title), each Person who controls such Purchaser
(within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, shareholders,
agents, members, partners or employees (and any other Persons with a functionally equivalent role of a Person holding such titles
notwithstanding a lack of such title or any other title) of such controlling persons (each,
a “Purchaser Party”) harmless from any and all losses, liabilities,
obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs
and reasonable attorneys’ fees and costs of investigation that any such Purchaser Party may suffer or incur caused by or
based upon (a) any breach of any of the representations or warranties made by the Company in this Agreement or in the other Transaction
Documents or (b) any action instituted against the Purchaser Parties in any capacity, or any of them or their respective Affiliates,
by any shareholder of the Company who is not an Affiliate of such Purchaser Party, with respect to any of the transactions contemplated
by the Transaction Documents (unless such action is solely based upon a material breach of such Purchaser Party’s representations,
warranties or covenants under the Transaction Documents or any agreements or understandings
such Purchaser Party may have with any such shareholder or any violations by such Purchaser Party of state or federal securities
laws or any conduct by such Purchaser Party which is finally judicially determined to constitute fraud, gross negligence or willful
misconduct). The Company will indemnify each Purchaser Party, to the fullest extent permitted by applicable
law, from and against any and all losses, claims, damages, liabilities, costs (including, without limitation, reasonable attorneys’
fees) and expenses, as incurred, caused by or based upon (i) any untrue or alleged untrue statement of a material fact contained
in the Registration Statements or any amendment thereto, any Issuer Free Writing Prospectus, the Prospectus or any amendment or
supplement thereto, or caused by or based upon any omission or alleged omission of a material fact required to be stated therein
or necessary to make the statements therein (in the case of any prospectus or supplement thereto, in the light of the circumstances
under which they were made) not misleading, except to the extent, but only to the extent, that such untrue statements or omissions
are based solely upon information regarding such Purchaser Party furnished in writing to the Company by such Purchaser Party expressly
for use therein, or (ii) any violation or alleged violation by the Company of the Securities Act, the Exchange Act or any state
securities law, or any rule or regulation thereunder in connection therewith. If any action shall be brought against any Purchaser
Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company
in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing reasonably acceptable
to the Purchaser Party. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate
in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the
extent that (x) the employment thereof has been specifically authorized by the Company in writing, (y) the Company has failed after
a reasonable period of time to assume such defense and to employ counsel or (z) in such action there is, in the reasonable opinion
of counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party,
in which case the Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel.
The Company will not be liable to any Purchaser Party under this Agreement (1) for any settlement by a Purchaser Party effected
without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (2) to the extent, but only
to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party’s breach of any of the representations,
warranties, covenants or agreements made by such Purchaser Party in this Agreement or
in the other Transaction Documents. The indemnification required by this Section 4.8 shall be made by periodic payments of the
amount thereof during the course of the investigation or defense, as and when bills are received or are incurred. The indemnity
agreements contained herein shall be in addition to any cause of action or similar right
of any Purchaser Party against the Company or others and any liabilities the Company may be subject to pursuant to law.


 




    	 	 	 



    	 



    




  


4.9      
Reservation of Common Stock. As of the date hereof, the Company has reserved and the Company shall continue to reserve and
keep available at all times, free of preemptive rights, a sufficient number of shares of Common Stock for the purpose of enabling
the Company to issue the Shares pursuant to this Agreement.


 


4.10    
Listing of Common Stock. The Company hereby agrees to use commercially reasonable best efforts to maintain the listing or
quotation of the Common Stock on Nasdaq, and concurrently with the Closing, the Company shall apply
to list or quote all of the stock on Nasdaq and promptly secure the listing of all of the
stock on Nasdaq. The Company further agrees, if the Company applies to have the Common Stock traded on any other Trading Market,
it will then include in such application all of the stock, and will take such other action
as is necessary to cause all of the Shares to be listed or quoted on such other Trading Market as promptly as possible. The Company
will then take all action reasonably necessary to continue the listing and trading of its Common Stock on a Trading Market and
will comply in all respects with the Company’s reporting, filing and other obligations under the bylaws or rules of the Trading
Market. For so long as the Company maintains a listing or quotation of the Common Stock on a Trading Market, the Company agrees
to maintain the eligibility of the Common Stock for electronic transfer through the Depository Trust Company or another established
clearing corporation, including, without limitation, by timely payment of fees to the Depository Trust Company or such other established
clearing corporation in connection with such electronic transfer.


  


4.11      
Reserved.


 


4.12      
Subsequent Equity Sales.


 


(a)       
From the date hereof until the date that is the 45th day from the Closing Date, neither the Company nor any Subsidiary
shall issue, enter into any agreement to issue or announce the issuance or proposed issuance
of any Common Stock or Common Stock Equivalents.


 


(b)       
Notwithstanding the foregoing, this Section 4.12 shall not apply in respect of an Exempt Issuance.


 


4.13      
Equal Treatment of Purchasers. No consideration (including any modification of any Transaction Document) shall be offered
or paid to any Person to amend or consent to a waiver or modification of any provision of the Transaction Documents unless the
same consideration is also offered to all of the parties to such Transaction Documents. For clarification purposes, this provision
constitutes a separate right granted to each Purchaser by the Company and negotiated separately by each Purchaser, and is intended
for the Company to treat the Purchasers as a class and shall not in any way be construed as the Purchasers acting in concert or
as a group with respect to the purchase, disposition or voting of Shares or otherwise.


 


4.14      
Certain Transactions and Confidentiality. Each Purchaser, severally and not jointly with the other Purchasers, covenants
that neither it nor any Affiliate acting on its behalf or pursuant to any understanding with it will execute any purchases or sales,
including Short Sales of any of the Company’s securities during the period commencing with the execution of this Agreement
and ending at such time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial
press release as described in Section 4.4. Each Purchaser, severally and not jointly with the other Purchasers, covenants that
until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company pursuant to the initial
press release as described in Section 4.4, such Purchaser will maintain the confidentiality of the existence and terms of this
transaction and the information included in this Agreement, including the schedules hereto. Notwithstanding the foregoing, and
notwithstanding anything contained in this Agreement to the contrary, the Company expressly acknowledges and agrees that (i) no Purchaser makes any representation,
warranty or covenant hereby that it will not engage in effecting transactions in any securities of the Company after the time that
the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release as described
in Section 4.4, (ii) no Purchaser shall be restricted or prohibited from effecting any transactions in any securities of the Company
in accordance with applicable securities laws from and after the time that the transactions contemplated by this Agreement are
first publicly announced pursuant to the initial press release as described in Section 4.4 and (iii) no Purchaser shall have any
duty of confidentiality or duty not to trade in the securities of the Company to the Company or the Subsidiaries after the issuance
of the initial press release as described in Section 4.4. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed
investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio
managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s
assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that
made the investment decision to purchase the Shares covered by this Agreement.


 




    	 	 	 



    	 



    




  


ARTICLE V.



MISCELLANEOUS


 


5.1      
Termination. This Agreement may be terminated by any Purchaser, as to such Purchaser’s obligations hereunder only
and without any effect whatsoever on the obligations between the Company and the other Purchasers, by written notice to the other
parties, if the Closing has not been consummated on or before January 31, 2021; provided, however,
that no such termination will affect the right of any party to sue for any breach by any other party (or parties).


 


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


 


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


 


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


 


5.5      
Amendments; Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written
instrument signed, in the case of an amendment, by the Company and Purchasers which purchased a majority in interest of the Shares
based on the initial Subscription Amounts hereunder or, in the case of a waiver, by the party against whom enforcement of any such
waived provision is sought. No waiver of any default with respect to any provision, condition or requirement of this Agreement
shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default
or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any
right hereunder in any manner impair the exercise of any such right.


 




    	 	 	 



    	 



    




 


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


 


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


 


5.8      
No Third-Party Beneficiaries. A.G.P. shall be the third party beneficiary of the representations and warranties of the Company
in Section 3.1 and the representations and warranties of the Purchasers in Section 3.2. This Agreement is intended for the benefit
of the parties hereto and their respective successors and permitted assigns and is not for the benefit of, nor may any provision
hereof be enforced by, any other Person, except as otherwise set forth in Section 4.8 and this Section 5.8.


 


5.9      
Governing Law. All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents
shall be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to
the principles of conflicts of law thereof. Each party agrees that all legal proceedings
concerning the interpretations, enforcement and defense of the transactions contemplated by this Agreement and any other Transaction
Documents (whether brought against a party hereto or its respective affiliates, directors,
officers, shareholders, partners, members, employees or agents) shall be commenced exclusively in the state and federal courts
sitting in the City of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts
sitting in the City of New York, Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or
with any transaction contemplated hereby or discussed herein (including with respect to the enforcement of any of the Transaction
Documents), and hereby irrevocably waives, and agrees not to assert in any action or proceeding,
any claim that it is not personally subject to the jurisdiction of any such court, that such action or proceeding
is improper or is an inconvenient venue for such Proceeding. Each party hereby irrevocably waives personal service of process and
consents to process being served in any such action or proceeding by mailing a copy
thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect
for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and
notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted
by law. If any party shall commence an action or proceeding to enforce any provisions
of the Transaction Documents, then, in addition to the obligations of the Company under Section 4.8, the prevailing party in such
action or proceeding shall be reimbursed by the non-prevailing party for its reasonable
attorneys’ fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action
or proceeding.


 


5.10    
Survival. The representations and warranties contained herein shall survive the Closing and the delivery of the Shares for
a period of not longer than five (5) years from the Closing.


 


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


 


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


 




    	 	 	 



    	 



    




 


5.13    
Rescission and Withdrawal Right. Notwithstanding anything to the contrary contained in (and without limiting any similar
provisions of) any of the other Transaction Documents, whenever any Purchaser exercises a right, election, demand or option under
a Transaction Document and the Company does not timely perform its related obligations within the periods therein provided, then
such Purchaser may rescind or withdraw, in its sole discretion from time to time upon written notice to the Company, any relevant
notice, demand or election in whole or in part without prejudice to its future actions and rights.


 


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


 


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


 


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


 


5.17    
Independent Nature of Purchasers’ Obligations and Rights. The obligations of each Purchaser under any Transaction
Document are several and not joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way
for the performance or non-performance of the obligations of any other Purchaser under any Transaction Document. Nothing contained
herein or in any other Transaction Document, and no action taken by any Purchaser pursuant hereto or thereto, shall be deemed to
constitute the Purchasers as a partnership, an association, a joint venture or any other kind of entity, or create a presumption
that the Purchasers are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated
by the Transaction Documents. Each Purchaser shall be entitled to independently protect and enforce its rights including, without
limitation, the rights arising out of this Agreement or out of the other Transaction Documents, and it shall not be necessary for
any other Purchaser to be joined as an additional party in any proceeding for such purpose.
Each Purchaser has been represented by its own separate legal counsel in its review and negotiation of the Transaction Documents.
For reasons of administrative convenience only, each Purchaser and its respective counsel have chosen to communicate with the Company
through the legal counsel of A.G.P. The legal counsel of A.G.P. does not represent any of the Purchasers and only represents A.G.P.
The Company has elected to provide all Purchasers with the same terms and Transaction Documents for the convenience of the Company
and not because it was required or requested to do so by any of the Purchasers. It is expressly understood and agreed that each
provision contained in this Agreement and in each other Transaction Document is between the Company and a Purchaser, solely, and
not between the Company and the Purchasers collectively and not between and among the Purchasers.


  


5.18    
[Reserved].


 




    	 	 	 



    	 



    

 


5.19    
Saturdays, Sundays, Holidays, etc.    If the last or appointed day
for the taking of any action or the expiration of any right required or granted herein shall not be a Business Day, then such action
may be taken or such right may be exercised on the next succeeding Business Day.


 


5.20     Currency.
Unless otherwise stated, all dollar amounts and references to “$” in this Agreement refer to the lawful currency of
the United States.


 


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


 


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


 


 


 


 


(Signature Pages Follow)


 


 


 


 




    	 	 	 



    	 



    

 


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


 


	TONIX PHARMACEUTICALS HOLDING CORP.	 	Address for Notice:
	 	 	 	 
	By:	 	 	 	26 Main St. – Suite 101
	 	Name: Seth Lederman	 	Chatham, NJ 07926
	 	Title: CEO	 	 
	 	 	 	Fax:
	 	 	 	E-mail: seth.lederman@tonixpharma.com


 


 


 


[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK


SIGNATURE PAGE FOR PURCHASER FOLLOWS]


 


 



    	 	 	 



    	 



    

 


[PURCHASER SIGNATURE PAGES TO TONIX
PHARMACEUTICALS HOLDING CORP.


SECURITIES PURCHASE AGREEMENT]


 


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


 


Name of Purchaser: ______________________________________________________


 


Signature of Authorized Signatory of Purchaser:
_________________________________


 


Name of Authorized Signatory: _______________________________________________


 


Title of Authorized Signatory: ________________________________________________


 


Email Address of Authorized Signatory:_________________________________________


 


Facsimile Number of Authorized Signatory: __________________________________________


 


Address for Notice to Purchaser:


 


DWAC for Shares:


 


Subscription Amount: $_________________


 


Shares: _________________


 


EIN Number: ____________________