Exhibit 10.65


 


GREAT BASIN SCIENTIFIC, INC.


________ Units,


Each Unit Consisting of One Share of Series
G Mandatorily Convertible Preferred Stock


and


One Series I Warrant to Purchase ________
Shares of Common Stock


 




PLACEMENT AGENT AGREEMENT


January __, 2017


 


Roth Capital Partners, LLC

888 San Clemente Drive

Newport Beach, CA 92660


 


Dear Sirs:


 


1.     INTRODUCTION.
Great Basin Scientific, Inc., a Delaware corporation (the “Company”), proposes to issue and
sell to the purchasers, pursuant to the terms and conditions of this Placement Agent Agreement (this “Agreement”)
and the Subscription Agreements in the form of Exhibit A attached hereto (the “Subscription Agreements”)
entered into with the purchasers identified therein and the Prospectus (as defined below) with respect to purchasers of Units that
do not enter into a Subscription Agreement (each a “Purchaser” and collectively, the “Purchasers”),
up to an aggregate of: up to ________ Units (the “Units”) consisting of (i) one authorized but unissued share
of Series G Madatorily Convertible Preferred Stock, par value $0.001 per share (the “Preferred Stock”), of the
Company (the “Preferred Shares”) and the shares issuable upon conversion of the Preferred Shares, (the “Conversion
Shares”) and (ii) one Series I Warrant (the “Warrants”) to purchase an aggregate of up to ________
authorized but unissued shares of common stock, par value $0.0001 per share (the “Common Stock”), and the shares
of Common Stock issuable upon exercise of the Warrants (the “Warrant
Shares”). Each Unit will consist of one Preferred Share and one Warrant. The Units, the Preferred Shares, the Conversion
Shares, the Warrants, and the Warrant Shares are collectively referred to as the “Securities.” The Units will
not be separately issued or certificated and the Securities shall be immediately separable and transferable upon issuance. The
form of the Warrant is attached hereto as Exhibit B. The Company hereby confirms its agreement with Roth Capital Partners,
LLC (the “Placement Agent”) to act as Placement Agent in accordance with the terms and conditions hereof.


 


2.     AGREEMENT
TO ACT AS PLACEMENT AGENT; PLACEMENT OF SECURITIES. On the basis of the representations, warranties and agreements of
the Company herein contained, and subject to all the terms and conditions of this Agreement:


 


(a)          The
Company hereby authorizes the Placement Agent to act as its exclusive agent to solicit offers for the purchase of all or part of
the Securities from the Company in connection with the proposed offering of the Securities (the “Offering”).
Until the Closing Date (as defined in Section 4 hereof) or earlier upon termination of this Agreement pursuant to Section 9
the Company shall not, without the prior written consent of the Placement Agent, solicit or accept offers to purchase the
Securities otherwise than through the Placement Agent.


 




     


     


    

 


(b)          The
Company hereby acknowledges that the Placement Agent has agreed, as agent of the Company, to use its reasonable efforts to solicit
offers to purchase the Securities from the Company on the terms and subject to the conditions set forth in the Prospectus (as defined
below). The Placement Agent shall use reasonable efforts to assist the Company in obtaining performance by each Purchaser
whose offer to purchase Securities has been solicited by the Placement Agent and accepted by the Company, but the Placement
Agent shall not, except as otherwise provided in this Agreement, be obligated to disclose the identity of any potential purchaser
or have any liability to the Company in the event any such purchase is not consummated for any reason. Under no circumstances
will the Placement Agent be obligated to underwrite or purchase any Securities for its own account and, in soliciting purchases
of the Securities, the Placement Agent shall act solely as the Company’s agent and not as principal.


 


(c)          Subject
to the provisions of this Section 2, offers for the purchase of the Securities may be solicited by the Placement Agent
as agent for the Company at such times and in such amounts as the Placement Agent deems advisable. The Placement Agent shall communicate
to the Company, orally or in writing, each reasonable offer to purchase Securities received by it as agent of the Company.
The Company shall have the sole right to accept offers to purchase Securities and may reject any such offer, in whole or in part.  The
Placement Agent shall have the right, in its discretion reasonably exercised, without notice to the Company, to reject any offer
to purchase Securities received by it, in whole or in part, and any such rejection shall not be deemed a breach of this Agreement.


 


(d)          The
Securities are being sold to the Purchasers at the following initial public offering price: $___ per Unit. The purchases of Securities by
the Purchasers shall be evidenced by the execution of Subscription Agreements by each of the Purchasers and the Company (other
than Purchasers that do not enter into a Subscription Agreement).


 


(e)          As
compensation for services rendered, on the Closing Date (as defined in Section 4 hereof), the Company shall pay to
the Placement Agent by wire transfer of immediately available funds to an account or accounts designated by the Placement
Agent, a cash fee (the “Cash Fee”) in an aggregate amount equal to seven percent (7.0%) of the gross proceeds
received by the Company from the sale of the Securities on such Closing Date. The Cash Fee is hereinafter referred to herein as
the “Placement Fee”. The Placement Agent may retain other brokers or dealers to act as sub-agents on its behalf
in connection with the Offering, the fees of which shall be paid out of the Placement Fee.


 


(f)          No
Securities which the Company has agreed to sell pursuant to this Agreement and the Subscription Agreements shall be deemed to have
been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Purchaser thereof against
payment by such Purchaser. If the Company shall default in its obligations to deliver Securities to a Purchaser whose offer it
has accepted, the Company shall indemnify and hold the Placement Agent harmless against any loss, claim, damage or expense arising
from or as a result of such default by the Company in accordance with the procedures set forth in Section 8(c) herein.


 




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3.     REPRESENTATIONS
AND WARRANTIES OF THE COMPANY. The Company represents and warrants to, and agrees with, the Placement Agent and the Purchasers
that:


 


(a)          The
Company has prepared and filed in conformity with the requirements of the Securities Act of 1933, as amended (the “Securities
Act”), and published rules and regulations thereunder (the “Rules and Regulations”) adopted
by the Securities and Exchange Commission (the “Commission”), a Registration Statement (as hereinafter
defined) on Form S-1 (File No. 333-213144) covering the offer and sale of the Securities, which became effective on January __,
2017 (the “Effective Date”), including any amendments and supplements thereto as may have been required
to the date of this Agreement. The term “Registration Statement” as used in this Agreement means the registration
statement (including all exhibits, financial schedules and all documents and information deemed to be a part of the Registration
Statement pursuant to Rule 430A under the Rules and Regulations), as amended and/or supplemented to the date of this Agreement.
The Registration Statement is effective under the Securities Act and no stop order preventing or suspending the effectiveness of
the Registration Statement or suspending or preventing the use of the Prospectus (as defined below) has been issued by the
Commission and no proceedings for that purpose have been instituted or, to the knowledge of the Company, are threatened by the
Commission. The Company, if required by the Rules and Regulations of the Commission, will file the Prospectus, with the Commission
pursuant to Rule 424(b) under the Rules and Regulations. The term “Prospectus,” as used in this Agreement,
means the Prospectus, in the form in which it is to be filed with the Commission pursuant to Rule 424(b) under the Rules and Regulations,
or, if the Prospectus is not to be filed with the Commission pursuant to Rule 424(b), the Prospectus in the form included
as part of the Registration Statement as of the Effective Date, except that if any revised prospectus shall be provided to the
Placement Agent by the Company for use in connection with the offering and sale of the Securities which differs from the Prospectus
(whether or not such revised prospectus is required to be filed by the Company pursuant to Rule 424(b) under the Rules and
Regulations), the term “Prospectus” shall refer to such revised prospectus from and after the time it is first
provided to the Placement Agent for such use. Any preliminary prospectus or prospectus subject to completion included in the Registration
Statement or filed with the Commission pursuant to Rule 424 under the Rules and Regulations is hereafter called a “Preliminary
Prospectus.” Any reference herein to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-1 which were
filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), on or before the last
to occur of the Effective Date, the date of the Preliminary Prospectus, or the date of the Prospectus, and any reference herein to the terms
“amend,” “amendment,” or “supplement” with respect to the Registration Statement, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include (i) the filing of any document under the Exchange Act
after the Effective Date, the date of such Preliminary Prospectus or the date of the Prospectus, as the case
may be, which is incorporated by reference and (ii) any such document so filed. If the Company has filed an abbreviated registration
statement to register additional securities pursuant to Rule 462(b) under the Rules and Regulations (the “462(b)
Registration Statement”), then any reference herein to the Registration Statement shall also be deemed to
include such 462(b) Registration Statement.


 




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(b)          As
of the Applicable Time (as defined below) and as of the Closing Date, neither (i) any General Use Free Writing Prospectus
(as defined below) issued at or prior to the Applicable Time, and the Pricing Prospectus (as defined below) and the information
included on Schedule A hereto, all considered together (collectively, the “General Disclosure Package”),
(ii) [reserved], nor (iii) the bona fide electronic road show (as defined in Rule 433(h)(5) under the Rules and Regulations), if
any, that has been made available without restriction to any person, when considered together with the General Disclosure Package,
included or will include, any untrue statement of a material fact or omitted or as of the Closing Date will omit, to state
a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that the Company makes no representations or warranties as to information contained
in or omitted from any documents contained in the General Disclosure Package, in reliance upon, and in conformity with, written
information furnished to the Company by the Placement Agent specifically for inclusion therein, which information the parties hereto
agree is limited to the Placement Agent’s Information (as defined in Section 17). As used in this paragraph
(b) and elsewhere in this Agreement:


 


“Applicable Time”
means 8:15 A.M., New York time, on the date of this Agreement.


 


“General Use Free Writing
Prospectus” means any Issuer Free Writing Prospectus that is identified on Schedule A to this Agreement.


 


“Issuer Free Writing Prospectus”
means any “issuer free writing prospectus,” as defined in Rule 433 under the Rules and Regulations relating to the
Securities in the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained
in the Company’s records pursuant to Rule 433(g) under the Rules and Regulations.


 


“Pricing
Prospectus” means the Preliminary Prospectus, as amended and supplemented immediately prior to the Applicable Time,
including any document incorporated by reference therein.


 


(c)          No
order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus relating
to the Offering has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the
Securities Act has been instituted or threatened by the Commission, and each Preliminary Prospectus (if any), at the time of filing
thereof, conformed in all material respects to the requirements of the Securities Act and the Rules and Regulations, and did
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, in the light of the circumstances under which they were made, not misleading; provided, however,
that the Company makes no representations or warranties as to information contained in or omitted from any Preliminary
Prospectus, in reliance upon, and in conformity with, written information furnished to the Company by the Placement Agent specifically
for inclusion therein, which information the parties hereto agree is limited to the Placement Agent’s Information (as defined
in Section 17).


 







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(d)         At
the time the Registration Statement became or becomes effective, at the date of this Agreement and at the Closing Date, the Registration
Statement conformed and will conform in all material respects to the requirements of the Securities Act and the Rules and
Regulations and did not and will not contain any untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading; the Prospectus, at the time the Prospectus
was issued and at the Closing Date, conformed and will conform in all material respects to the requirements of the Securities
Act and the Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not
misleading; provided, however, that the foregoing representations and warranties in this paragraph (d) shall
not apply to information contained in or omitted from the Registration Statement or the Prospectus in reliance upon, and in conformity
with, written information furnished to the Company by the Placement Agent specifically for inclusion therein, which information
the parties hereto agree is limited to the Placement Agent’s Information (as defined in Section 17).


 


(e)          Each
Issuer Free Writing Prospectus, if any, as of its issue date and at all subsequent times through the completion of the public
offer and sale of the Securities or until any earlier date that the Company notified or notifies the Placement Agent as described
in Section 5(e), did not, does not and will not include any information that conflicted, conflicts or will conflict
with the information contained in the Registration Statement, Pricing Prospectus or the Prospectus, including any document incorporated
by reference therein that has not been superseded or modified, or did not, does not or will not include an untrue statement of
a material fact or did not, does not or will not 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 prevailing at the subsequent time, not misleading. The
foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus in reliance upon, and in
conformity with, written information furnished to the Company by the Placement Agent specifically for inclusion therein, which
information the parties hereto agree is limited to the Placement Agent’s Information (as defined in Section 17).


 


(f)          The
documents incorporated by reference in the Prospectus, if any, when they became effective or were filed with the Commission, as
the case may be, conformed in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder and none of such documents contained any untrue statement of a
material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated by
reference in the Prospectus, when such documents become effective or are filed with the Commission, as the case may be, will conform
in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder and will not contain any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were
made, not misleading.


 




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(g)         The
Company has not, directly or indirectly, distributed and will not distribute any offering material in connection with the Offering
other than any Pricing Prospectus, the Prospectus and other materials, if any, permitted under the Securities Act and consistent
with Section 5(b) below. The Company is not an “ineligible issuer” in connection with the offering pursuant
to Rules 164, 405 and 433 under the Securities Act. The Company will file with the Commission all Issuer Free Writing Prospectuses
(other than a “road show,” as defined in Rule 433(d)(8) under the Rules and Regulations), if any, in the time and manner
required under Rules 163(b)(2) and 433(d) under the Rules and Regulations.


 


(h)         The
Company and each Subsidiary (as defined below) has been duly organized and is validly existing in good standing (or the foreign
equivalent thereof) under the laws of each of their respective jurisdictions of organization. The Company and each Subsidiary is
duly qualified to do business and is in good standing in each jurisdiction in which its ownership or lease of property or the conduct
of its business requires such qualification and has all power and authority necessary to own or hold its properties and to conduct
the business in which it is engaged, except where the failure to so qualify or have such power or authority (i) would not have,
singularly or in the aggregate, a material adverse effect on the condition (financial or otherwise), results of operations,
assets or business or prospects of the Company or any Subsidiary, taken as a whole, or (ii) impair in any material respect
the ability of the Company to perform its obligations under this Agreement or to consummate any transactions contemplated by the
Agreement, the Registration Statement, the General Disclosure Package or the Prospectus (any such effect as described in clauses
(i) or (ii), a “Material Adverse Effect”). The Company does not own or control, directly or indirectly,
any other corporation, partnership, limited liability partnership, limited liability company, association or other entity.
Accordingly, the terms “Subsidiary” and “Subsidiaries” shall be accorded no meaning under
this Agreement but have been retained herein solely for convenience.


 


(i)          The
Company has the full right, power and authority to enter into this Agreement, the Warrants and each of the Subscription Agreements
and to perform and to discharge its obligations hereunder and thereunder; and each of this Agreement, the Warrants and each of
the Subscription Agreements have been duly authorized, executed and delivered by the Company, and constitutes a valid and binding
obligation of the Company enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization
or other similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity.


 




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(j)          The
Securities have been duly authorized, and the Shares, when issued and delivered against payment therefor as provided herein
and in the Subscription Agreements, will be validly issued, fully paid and non-assessable and free of any preemptive or similar
rights and will conform to the description thereof contained in the Registration Statement, the General Disclosure Package and
the Prospectus. The Warrant Shares, when issued and delivered upon the due exercise of the Warrants will be validly issued,
fully paid and non-assessable and free of any preemptive or similar rights and will conform to the description thereof contained
in the Registration Statement, the General Disclosure Package and the Prospectus. The Warrants conform to the description thereof
contained in the Registration Statement, the General Disclosure Package and the Prospectus. The Conversion Shares, when issued and
delivered upon the conversion of the Shares will be validly issued, fully paid and non-assessable and free of any preemptive or
similar rights and will conform to the description thereof contained in the Registration Statement, the General Disclosure Package
and the Prospectus. The Company has reserved a sufficient number of authorized but unissued shares of Common Stock for the issuance
of the Conversion Shares (based on the conversion floor price of $0.02 per share) and Warrant Shares upon the full conversion of
the Shares and the full exercise of the Warrants in accordance with their respective terms.


 


(k)         The
Company has an authorized capitalization as set forth in the Registration Statement, the General Disclosure Package and the Prospectus,
and all of the issued shares of capital stock of the Company have been duly authorized and validly issued, are fully paid and
non-assessable, have been issued in compliance with United States federal and state securities laws, and conform to the description
thereof contained in the Registration Statement, the General Disclosure Package and the Prospectus. As of _____ __, 2017, there
were _________ shares of Common Stock issued and outstanding, ______ shares of Series E shares of Preferred Stock, par value $0.001
per share outstanding, ______ shares of Series F shares of Preferred Stock, par value $0.001 per share outstanding, and an aggregate
of ________ shares of Common Stock were issuable upon the exercise of all options and warrants and conversion of all convertible
securities outstanding as of such date. Since such date, the Company has not issued any securities, other than Common Stock of
the Company issued pursuant to the exercise of stock options previously outstanding under the Company’s stock incentive
plans or the issuance of restricted Common Stock pursuant to stock incentive plans. All of the Company’s options, warrants
and other rights to purchase, exchange or convert any securities for shares of the Company’s capital stock have been duly
authorized and validly issued and were issued in compliance with United States federal and state securities laws. None of the outstanding
shares of Common Stock was issued in violation of any preemptive rights, rights of first refusal or other similar rights to subscribe
for or purchase securities of the Company. There are no authorized or outstanding shares of capital stock, options, warrants, preemptive
rights, rights of first refusal or other rights to purchase, or equity or debt securities convertible into or exchangeable
or exercisable for, any capital stock of the Company or any Subsidiary other than those described above or accurately described
in the Registration Statement, the General Disclosure Package and the Prospectus. The description of the Company’s stock
option, stock bonus and other stock plans or arrangements, and the options or other rights granted thereunder, as described
in the Registration Statement, the General Disclosure Package and the Prospectus, accurately and fairly present the information
required to be shown with respect to such plans, arrangements, options and rights.


 


(l)          All
the outstanding shares of capital stock or ownership interests of each Subsidiary have been duly authorized and validly issued,
are fully paid and non-assessable and, except to the extent set forth in the Registration Statement, the General Disclosure Package
and the Prospectus, are owned by the Company directly or indirectly through one or more wholly-owned Subsidiaries, free and
clear of any claim, lien, encumbrance, security interest, restriction upon voting or transfer or any other claim of any
third party.


 




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(m)         The
execution, delivery and performance of this Agreement, the Subscription Agreements and the Warrants by the Company, the issue and
sale of the Securities by the Company and the consummation of the transactions contemplated hereby and thereby will not (with
or without notice or lapse of time or both): (i) conflict with or result in a breach or violation of any of the terms or provisions
of, constitute a default or Debt Repayment Triggering Event (as defined below) under, give rise to any right of termination
or other right or the cancellation or acceleration of any right or obligation or loss of a benefit under, or give rise to
the creation or imposition of any lien, encumbrance, security interest, claim or charge upon any property or assets of the
Company or any Subsidiary pursuant to any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any Subsidiary is a party or by which the Company or any Subsidiary is bound or to which any of the property
or assets of the Company or any Subsidiary is subject (each, a “Contract” and, collectively, the “Contracts”);
(ii) result in any violation of the provisions of the charter or by-laws (or analogous governing instruments, as applicable) of
the Company or any Subsidiary; or, (iii) to the Company’s knowledge, result in the violation of any law, statute, rule, regulation,
judgment, order or decree of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company
or any Subsidiary or any of their properties or assets, except with respect to clauses (i) and (iii), any breaches, violations
or defaults which, singularly or in the aggregate, would not have a Material Adverse Effect. A “Debt Repayment Triggering
Event” means any event or condition that gives, or with the giving of notice or lapse of time would give the holder of
any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require
the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any Subsidiary.


 


(n)         Except
for the registration of the Securities under the Securities Act, and such consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and applicable state or foreign securities laws, the Financial Industry
Regulatory Authority, Inc. (“FINRA”) in connection with the offering and sale of the Securities by the Company,
no consent, approval, authorization or order of, or filing, qualification or registration with, any court or governmental
agency or body, foreign or domestic, which has not been made, obtained or taken and is not in full force and effect, is required
for the execution, delivery and performance of this Agreement, the Subscription Agreements and the Warrants by the Company,
the offer or sale of the Securities or the consummation of the transactions contemplated hereby or thereby.


 


(o)         Mantyla
McReynolds, LLC, who has certified certain financial statements and related schedules included in the Registration Statement, the
General Disclosure Package and the Prospectus, is an independent registered public accounting firm as required by the Securities
Act and the Rules and Regulations and the Public Company Accounting Oversight Board (United States) (the “PCAOB”).
Except as pre-approved in accordance with the requirements set forth in Section 10A of the Exchange Act, Mantyla McReynolds,
LLC has not been engaged by the Company to perform any “prohibited activities” (as defined in Section 10A of the
Exchange Act).


 




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(p)         The
financial statements, together with the related notes and schedules, included in the Registration Statement, the General Disclosure
Package and the Prospectus fairly present in all material respects the financial position and the results of operations and changes
in financial position of the Company and its Subsidiaries and other consolidated entities at the respective dates or for the respective
periods therein specified. Such statements and related notes and schedules have been prepared in accordance with the generally
accepted accounting principles in the United States (“GAAP”) applied on a consistent basis throughout the periods
involved except as may be set forth in the related notes included or incorporated by reference in the General Disclosure Package.
The financial statements, together with the related notes and schedules, included in the Registration Statement, the General Disclosure
Package and the Prospectus comply in all material respects with the Securities Act, the Exchange Act, and the Rules and Regulations
and the rules and regulations under the Exchange Act. No other financial statements or supporting schedules or exhibits are
required by the Securities Act or the Rules and Regulations to be described or included in the Registration Statement, the
General Disclosure Package or the Prospectus. There is no pro forma or as adjusted financial information which is required to be
included in the Registration Statement, the General Disclosure Package, or the Prospectus in accordance with the Securities
Act and the Rules and Regulations which has not been included as so required. Any pro forma and pro forma as adjusted financial
information and the related notes included in the Registration Statement, the General Disclosure Package and the Prospectus have
been properly compiled and prepared in accordance with the applicable requirements of the Securities Act and the Rules and Regulations
and present fairly the information shown therein, and the assumptions used in the preparation thereof are reasonable and the adjustments
used therein are appropriate to give effect to the transactions and circumstances referred to therein.


 


(q)         Neither
the Company nor any Subsidiary has sustained, since the date of the latest audited financial statements included or incorporated
by reference in the Registration Statement, the General Disclosure Package and the Prospectus, any material loss or interference
with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Registration Statement, the
General Disclosure Package and the Prospectus; and, since such date, there has not been any change in the capital stock
or long-term debt of the Company or any Subsidiary or any material adverse changes, or any development involving a prospective
material adverse change, in or affecting the business, assets, management, financial position, prospects, stockholders’ equity
or results of operations of the Company or any Subsidiary, otherwise than as set forth or contemplated in the Registration
Statement, the General Disclosure Package and the Prospectus.


 


(r)          Except
as set forth in the Registration Statement, the General Disclosure Package and the Prospectus, there is no legal or governmental
action, suit, claim or proceeding pending to which the Company or any Subsidiary is a party or of which any property or assets
of the Company or any Subsidiary is the subject which is required to be described in the Registration Statement, the General Disclosure
Package or the Prospectus or a document incorporated by reference therein and is not described therein, or which, singularly or
in the aggregate, if determined adversely to the Company or any Subsidiary could have a Material Adverse Effect or prevent
the consummation of the transactions contemplated hereby; and to the best of the Company’s knowledge, no such proceedings
are threatened or contemplated by governmental authorities or threatened by others.


 




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(s)         Neither
the Company nor any Subsidiary is in (i) violation of its charter or by-laws (or analogous governing instrument, as applicable),
(ii) default in any respect, and no event has occurred which, with notice or lapse of time or both, would constitute
such a default, in the due performance or observance of any term, covenant or condition contained in any indenture, mortgage, deed
of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it is bound or to which any
of its property or assets is subject or (iii) to the Company’s knowledge, violation of any law, ordinance, governmental
rule, regulation or court order, decree or judgment to which it or its property or assets is subject except, in the case of clauses
(ii) and (iii) of this paragraph(s), for any violations or defaults which, singularly or in the aggregate, would not have a Material
Adverse Effect.


 


(t)          The
Company and each Subsidiary possesses all licenses, certificates, authorizations and permits issued by, and have made all declarations
and filings with, the appropriate local, state, federal or foreign regulatory agencies or bodies which are necessary or desirable
for the ownership of its properties or the conduct of their respective businesses as described in the Registration Statement, the
General Disclosure Package and the Prospectus (collectively, the “Governmental Permits”) except where
any failures to possess or make the same, singularly or in the aggregate, would not have a Material Adverse Effect. The Company
and each Subsidiary is in compliance with all such Governmental Permits, and all such Governmental Permits are valid and in full
force and effect, except where any non-compliance or the validity or failure to be in full force and effect would not, singularly
or in the aggregate, have a Material Adverse Effect. To the Company’s knowledge, all such Governmental Permits are free and
clear of any restriction or condition that are in addition to, or materially different from those normally applicable to similar
licenses, certificates, authorizations and permits. Neither the Company nor any Subsidiary has received notification of any revocation
or modification (or proceedings related thereto) of any such Governmental Permit and, to the Company’s knowledge, there is
no reason to believe that any such Governmental Permit will not be renewed.


 


(u)         Neither
the Company nor any Subsidiary is or, after giving effect to the sale of the Securities and the application of the proceeds thereof
as described in the Registration Statement, the General Disclosure Package and the Prospectus, will become an “investment
company” within the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission
thereunder.


 


(v)         Neither
the Company nor any Subsidiary, nor to the Company’s knowledge, any of the Company’s and any Subsidiary’s officers,
directors or affiliates has taken or will take, directly or indirectly, any action designed or intended to stabilize or manipulate
the price of any security of the Company, or which caused or resulted in, or which might in the future reasonably be expected
to cause or result in, stabilization or manipulation of the price of any security of the Company.


 




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(w)        To
the best of the Company’s knowledge, the Company and each Subsidiary owns or possesses the right to use all patents, trademarks,
trademark registrations, service marks, service mark registrations, trade names, copyrights, licenses, inventions, software,
databases, know-how, Internet domain names, trade secrets and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures, and other intellectual property (collectively, “Intellectual Property”)
necessary to carry on their respective businesses as currently conducted, and as proposed to be conducted and described
in the Registration Statement, the General Disclosure Package and the Prospectus, and the Company is not aware of any claim to
the contrary or any challenge by any other person to the rights of the Company or any Subsidiary with respect to the foregoing
except for those that could not have a Material Adverse Effect. The Intellectual Property licenses described in the Registration
Statement, the General Disclosure Package and the Prospectus are valid, binding upon, and enforceable by or against the parties
thereto in accordance with their terms. The Company and each Subsidiary has complied in all material respects with, and is
not in breach nor has received any asserted or threatened claim of breach of, any Intellectual Property license, and the Company
has no knowledge of any breach or anticipated breach by any other person to any Intellectual Property license. To the best
of the Company’s knowledge, the Company’s and each Subsidiary’s business as now conducted and as proposed to
be conducted does not and will not infringe or conflict with any valid patents, trademarks, service marks, trade names, copyrights,
trade secrets, licenses or other Intellectual Property or franchise right of any person, except for any such acts that would not
have a Material Adverse Effect. No claim has been made against the Company or any Subsidiary alleging the infringement by the Company
or any Subsidiary of any patent, trademark, service mark, trade name, copyright, trade secret, license in or other intellectual
property right or franchise right of any person. The Company and each Subsidiary has taken all reasonable steps to protect,
maintain and safeguard its rights in all Intellectual Property, including the execution of appropriate nondisclosure
and confidentiality agreements. The consummation of the transactions contemplated by this Agreement will not result in the loss or impairment
of or payment of any additional amounts with respect to, nor require the consent of any other person in respect of, each of
the Company’s and each Subsidiary’s right to own, use, or hold for use any of the Intellectual Property as
owned, used or held for use in the conduct of its business as currently conducted. The Company and each Subsidiary has at all times
complied in all material respects with all applicable laws relating to privacy, data protection, and the collection and use of
personal information collected, used, or held for use by the Company or any Subsidiary in the conduct of the Company’s
or any Subsidiary’s business. No claims have been asserted or threatened against the Company or any Subsidiary alleging a
violation of any person’s privacy or personal information or data rights and the consummation of the transactions contemplated
hereby will not breach or otherwise cause any violation of any law related to privacy, data protection, or the collection
and use of personal information collected, used, or held for use by the Company or any Subsidiary in the conduct of the Company’s
or any Subsidiary’s business. The Company and each Subsidiary takes reasonable measures to ensure that such information is
protected against unauthorized access, use, modification, or other misuse.


 




    	 	-11-	 



     


    

 


(x)          The
Company and each Subsidiary has good and marketable title in fee simple to, or have valid rights to lease or otherwise use, all
items of real or personal property which are material to the business of the Company and any Subsidiary, free and clear of
all liens, encumbrances, security interests, claims and defects that do not, singularly or in the aggregate, materially affect
the value of such property and do not interfere with the use made and proposed to be made of such property by the Company or any
Subsidiary; and all of the leases and subleases material to the business of the Company or any Subsidiary, and under which the
Company or any Subsidiary holds properties described in the Registration Statement, the General Disclosure Package and the Prospectus,
are in full force and effect, and neither the Company nor any Subsidiary has received any notice of any material claim of
any sort that has been asserted by anyone adverse to the rights of the Company or any Subsidiary under any of the leases or
subleases mentioned above, or affecting or questioning the rights of the Company or any Subsidiary to the continued possession
of the leased or subleased premises under any such lease or sublease.


 


(y)         No
organized labor disturbance by the employees of the Company or any Subsidiary exists or, to the best of the Company’s knowledge,
is imminent, and the Company has no actual knowledge of any existing or imminent labor disturbance by the employees of any
of its or any Subsidiary’s principal suppliers, manufacturers, customers or contractors, that could reasonably be expected,
singularly or in the aggregate, to have a Material Adverse Effect. The Company is not aware that any key employee or significant
group of employees of the Company or any Subsidiary plans to terminate employment with the Company or any Subsidiary.


 


(z)          No
“prohibited transaction” (as defined in Section 406 of the Employee Retirement Income Security Act of 1974, as
amended, including the regulations and published interpretations thereunder (“ERISA”), or Section 4975
of the Internal Revenue Code of 1986, as amended from time to time (the “Code”)) or “accumulated
funding deficiency” (as defined in Section 302 of ERISA) or any of the events set forth in Section 4043(b)
of ERISA (other than events with respect to which the thirty (30)-day notice requirement under Section 4043 of ERISA has been
waived) has occurred or could reasonably be expected to occur with respect to any employee benefit plan of the Company or
any Subsidiary which could, singularly or in the aggregate, have a Material Adverse Effect. Each employee benefit plan
of the Company or any Subsidiary is in compliance in all material respects with applicable law, including ERISA and the Code.  The
Company and each Subsidiary has not incurred and could not reasonably be expected to incur liability under Title IV of ERISA with
respect to the termination of, or withdrawal from, any pension plan (as defined in ERISA). Each pension plan for which the
Company or any Subsidiary would have any liability that is intended to be qualified under Section 401(a) of the Code is so
qualified, and nothing has occurred, whether by action or by failure to act, which could, singularly or in the aggregate, cause
the loss of such qualification to the extent such loss would have a Material Adverse Effect.


 




    	 	-12-	 



     


    

 


(aa)        To
the best of the Company’s knowledge, the Company and each Subsidiary is in compliance with all foreign, federal, state and
local rules, laws and regulations relating to the use, treatment, storage and disposal of hazardous or toxic substances or
waste and protection of health and safety or the environment which are applicable to its businesses (“Environmental Laws”),
except where the failure to comply would not, singularly or in the aggregate, have a Material Adverse Effect. There has been
no storage, generation, transportation, handling, treatment, disposal, discharge, emission, or other release of any kind of toxic
or other wastes or other hazardous substances regulated by Environmental Laws (“Hazardous Substances”)
by or caused by the Company or any Subsidiary (or, to the Company’s knowledge and without independent investigation,
any other entity for whose acts or omissions the Company or any Subsidiary is or may otherwise be liable) upon any of
the property now or previously owned or leased by the Company or any Subsidiary, or upon any other property, in violation
of any law, statute, ordinance, rule, regulation, order, judgment, decree or permit or which would, under any law, statute, ordinance,
rule (including rule of common law), regulation, order, judgment, decree or permit, give rise to any liability, except for any
violation or liability which would not have, singularly or in the aggregate with all such violations and liabilities, a Material
Adverse Effect; to the Company’s actual knowledge and without independent investigation, there has been no disposal, discharge,
emission or other release onto property now leased by the Company or any Subsidiary or into the environment surrounding such property
of any Hazardous Substance, except for any such disposal, discharge, emission, or other release in violation of Environmental Laws which
would not have, singularly or in the aggregate with all such discharges and other releases, a Material Adverse Effect.


 


(bb)       The
Company and each Subsidiary (i) has timely filed (or filed an extension to file) all necessary federal, state, local and foreign
tax returns, and all such filed returns were true, complete and correct, (ii) has paid all federal, state, local and foreign
taxes, assessments, governmental or other charges due and payable for which it is liable, including, without limitation, all
sales and use taxes and all taxes which the Company or any Subsidiary is obligated to withhold from amounts owing to employees,
creditors and third parties, and (iii) does not have any tax deficiency or claims outstanding or assessed or, to the best
of its knowledge, proposed against any of them, except those, in each of the cases described in clauses (i), (ii) and (iii) of
this paragraph (bb), that would not, singularly or in the aggregate, have a Material Adverse Effect. The Company and
each Subsidiary has not engaged in any transaction which is a corporate tax shelter or which could be characterized as
such by the Internal Revenue Service or any other taxing authority. The accruals and reserves on the books and records of
the Company in respect of tax liabilities for any taxable period not yet finally determined are adequate to meet any assessments
and related liabilities for any such period, and since December 31, 2008, the Company and each Subsidiary has not incurred any
liability for taxes other than in the ordinary course.


 


(cc)       The
Company and each Subsidiary carries, or is covered by, insurance provided by recognized, financially sound and reputable institutions
with policies in such amounts and covering such risks as is adequate in the good faith opinion of Company management for the
conduct of their respective businesses and the value of its properties and, to its knowledge, as is customary for companies engaged
in similar businesses in similar industries. The Company has no reason to believe that it or any Subsidiary will not be able (i)
to renew its existing insurance coverage as and when such policies expire or (ii) to obtain comparable coverage from similar
institutions as may be necessary or appropriate to conduct their respective businesses as now conducted and at a cost that would
not result in a Material Adverse Effect. Neither the Company nor any Subsidiary has been denied any insurance coverage that it
has sought or for which it has applied.


 




    	 	-13-	 



     


    

 


(dd)       The
Company and each Subsidiary maintains a system of internal accounting and other controls sufficient to provide reasonable assurances
that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions
are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability
for assets; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and
(iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action
is taken with respect to any differences. Except as described in the Registration Statement, the General Disclosure Package and
the Prospectus, since the end of the Company’s most recent audited fiscal year, there has been (A) no material weakness in
the Company’s internal control over financial reporting (whether or not remediated) and (B) no change in the Company’s
internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the
Company’s internal control over financial reporting.


 


(ee)        The
minute books of the Company and each Subsidiary have been made available to the Placement Agent and counsel for the Placement Agent,
and such books (i) contain a complete summary in all material respects of all meetings and actions of the board of directors
(including each board committee) and stockholders of the Company and each Subsidiary (or analogous governing bodies and interest
holders, as applicable), since January 1, 2012 through the date of the latest meeting and action, and (ii) accurately, in all material
respects, reflect all transactions referred to in such minutes.


 


(ff)         There
is no franchise, lease, contract, agreement or document required by the Securities Act or by the Rules and Regulations to be described
in the Registration Statement, the General Disclosure Package and the Prospectus or a document incorporated by reference therein
or to be filed as an exhibit to the Registration Statement or a document incorporated by reference therein which is not described
or filed therein as required; and all descriptions of any such franchises, leases, contracts, agreements or documents contained
in the Registration Statement, the General Disclosure Package and the Prospectus or in a document incorporated by reference therein
are accurate and complete descriptions of such documents in all material respects. Other than as described in the Registration
Statement, the General Disclosure Package and the Prospectus, no such franchise, lease, contract or agreement has been suspended
or terminated for convenience or default by the Company or any Subsidiary or any of the other parties thereto, and neither
the Company nor any Subsidiary has received notice nor does the Company have any other knowledge of any such pending or threatened
suspension or termination, except for such pending or threatened suspensions or terminations that would not reasonably be
expected to, singularly or in the aggregate, have a Material Adverse Effect.


 


(gg)       No
relationship, direct or indirect, exists between or among the Company and any Subsidiary on the one hand, and the directors, officers,
stockholders (or analogous interest holders), customers or suppliers of the Company or any Subsidiary or any of their affiliates
on the other hand, which is required to be described in the Registration Statement, the General Disclosure Package and the
Prospectus or a document incorporated by reference therein and which is not so described.


 




    	 	-14-	 



     


    

 


(hh)       No
person or entity has the right to require registration of shares of Common Stock or other securities of the Company or any Subsidiary
because of the filing or effectiveness of the Registration Statement or otherwise, except for persons and entities who have
expressly waived such right in writing or who have been given timely and proper written notice and have failed to exercise
such right within the time or times required under the terms and conditions of such right. Except as described in the Registration
Statement, the General Disclosure Package and the Prospectus, there are no persons with registration rights or similar rights to
have any securities registered by the Company or any Subsidiary under the Securities Act.


 


(ii)     
    Neither the Company nor any Subsidiary owns any “margin securities” as that term is
defined in Regulation U of the Board of Governors of the Federal Reserve System (the “Federal Reserve
Board”), and none of the proceeds of the sale of the Securities will be used, directly or indirectly,
for the purpose of purchasing or carrying any margin security, for the purpose of reducing or retiring any indebtedness which
was originally incurred to purchase or carry any margin security or for any other purpose which might cause any of the
Securities to be considered a “purpose credit” within the meanings of Regulation T, U or X of the
Federal Reserve Board.


 


(jj)         Except
for this Agreement, neither the Company nor any Subsidiary is a party to any contract, agreement or understanding with any person
that would give rise to a valid claim against the Company or the Placement Agent for a brokerage commission, finder’s
fee or like payment in connection with the offering and sale of the Securities or any transaction contemplated by this Agreement,
the Registration Statement, the General Disclosure Package or the Prospectus.


 


(kk)       No
forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act)
contained in either the Registration Statement, the General Disclosure Package or the Prospectus has been made or reaffirmed without
a reasonable basis or has been disclosed other than in good faith.


 


(ll)         The
Company is subject to and in compliance in all material respects with the reporting requirements of Section 13 or Section 15(d)
of the Exchange Act. The Common Stock is registered pursuant to Section 12(b) of the Exchange Act but is suspended from trading
on the NASDAQ Capital Market. A Form 25 was filed to de-register the Common Stock pursuant to Rule 12d2-2(b) under the Exchange
Act and upon effectiveness the Company’s Common Stock will be registered pursuant to Section 12(g) of the Exchange Act. The
Common Stock is currently quoted on the OTCQB, and the Company has taken no action designed to, or likely to have the effect of,
terminating the registration of the Common Stock under the Exchange Act or removal from quotation of the Common Stock from the
OTCQB, nor has the Company received any notification that the SEC or the OTCQB is contemplating terminating such registration or
quotations, except as described in the Registration Statement, the General Disclosure Package and the Prospectus. The Company has
obtained or will have obtained, or has made or will have made, as applicable, all necessary consents, approvals, authorizations
or orders of, or filing, notification or registration with, the OTCQB required for the quotation of the Conversion Shares
and Warrant Shares on the OTCQB.


 




    	 	-15-	 



     


    

 


(mm)     The
Company is in material compliance with all applicable provisions of the Sarbanes-Oxley Act of 2002 and all applicable rules
and regulations promulgated thereunder or implementing the provisions thereof (the “Sarbanes-Oxley Act”).


 


(nn)       Neither
the Company nor any Subsidiary, nor, to the best of the Company’s knowledge, any employee or agent of the Company or any
Subsidiary, has made any contribution or other payment to any official of, or candidate for, any federal, state, local or foreign
office in violation of any law (including the Foreign Corrupt Practices Act of 1977, as amended) or of the character required to
be disclosed in the Registration Statement, the General Disclosure Package or the Prospectus or a document incorporated by reference
therein.


 


(oo)       There
are no transactions, arrangements or other relationships between and/or among the Company or any Subsidiary, any of their affiliates
(as such term is defined in Rule 405 of the Securities Act) and any unconsolidated entity, including, but not limited to, any structured
finance, special purpose or limited purpose entity that could reasonably be expected to materially affect the Company’s or
any Subsidiary’s liquidity or the availability of or requirements for their capital resources required to be described in
the Registration Statement, the General Disclosure Package and the Prospectus or a document incorporated by reference therein which
have not been described as required.


 


(pp)       There
are no outstanding loans, advances (except normal advances for business expenses in the ordinary course of business) or guarantees
or indebtedness by the Company to or for the benefit of any of the officers or directors of the Company or any of their respective
family members, except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus.


 


(qq)       The
statistical and market related data included in the Registration Statement, the General Disclosure Package and the Prospectus are
based on or derived from sources that the Company believes to be reliable and accurate, and such data agree with the sources
from which they are derived.


 


(rr)         The
operations of the Company and each Subsidiary are and have been conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, 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 best knowledge of the Company,
threatened.


 


(ss)       Neither
the Company nor any Subsidiary nor, to the knowledge of the Company, 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, 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.


 




    	 	-16-	 



     


    

 


(tt)         Neither
the Company, nor any Subsidiary, nor any of their affiliates (within the meaning of FINRA Rule 5121(b)(1)(a)) directly or indirectly
controls, is controlled by, or is under common control with, or is an associated person (within the meaning of Article I,
Section l(ee) of the By-laws of FINRA) of, any member firm of FINRA.


 


(uu)       All
preclinical and clinical studies conducted by or on behalf of the Company or any Subsidiary that are material to the Company and
its Subsidiaries, taken as a whole, are described in the Registration Statement, the General Disclosure Package and the Prospectus.
To the Company’s knowledge, after reasonable inquiry, the clinical and preclinical studies conducted by or on behalf of the
Company or any Subsidiary that are described in the Registration Statement, the General Disclosure Package or the Prospectus or
the results of which are referred to in the Registration Statement, the General Disclosure Package or the Prospectus were and,
if still ongoing, are being conducted in material compliance with all laws and regulations applicable thereto in the jurisdictions
in which they are being conducted and with all laws and regulations applicable to preclinical and clinical studies from which data
will be submitted to support marketing approval. The descriptions in the Registration Statement, the General Disclosure Package
and the Prospectus of the results of such studies are accurate and complete in all material respects and fairly present the data
derived from such studies, and the Company has no knowledge of any large well-controlled clinical study the aggregate results of
which are inconsistent with or otherwise call into question the results of any clinical study conducted by or on behalf of the
Company or any Subsidiary that are described in the Registration Statement, the General Disclosure Package or the Prospectus or
the results of which are referred to in the Registration Statement, the General Disclosure Package or the Prospectus. Except as
disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, the Company has not received any written
notices or statements from the United States Food and Drug Administration (the “FDA”), the European Medicines
Agency (“EMEA”) or any other governmental agency or authority imposing, requiring, requesting or suggesting
a clinical hold, termination, suspension or material modification for or of any clinical or preclinical studies that are described
in the Registration Statement, the General Disclosure Package or the Prospectus or the results of which are referred to in the
Registration Statement, the General Disclosure Package or the Prospectus General Disclosure Package. The Company has not received
and is otherwise not aware of any notices, correspondence or other communication from the FDA, the EMEA or other governmental regulatory
agency or subdivision thereof, or any institutional or ethical review boards, asserting non-compliance with any applicable statutes,
rules, regulations, orders, or other laws.


 




    	 	-17-	 



     


    

 


(vv)       Except
as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, the Company has not received any
written notices or statements from the FDA, the EMEA or any other governmental agency, and otherwise has no knowledge or reason
to believe, that (i) any new drug application or marketing authorization application for any product or potential product of the
Company or any Subsidiary is or has been rejected or determined to be non-approvable or conditionally approvable; (ii) a delay
in time for review and/or approval of a marketing authorization application or marketing approval application in any other jurisdiction
for any product or potential product of the Company or any Subsidiary is or may be required, requested or being implemented; (iii)
one or more clinical studies for any product or potential product of the Company or any Subsidiary shall or may be requested or
required in addition to any clinical studies described in the Registration Statement, the General Disclosure Package or the Prospectus
as a precondition to or condition of issuance or maintenance of a marketing approval for such product or potential product; (iv)
any license, approval, permit or authorization to conduct any clinical trial of or market any product or potential product of the
Company or any Subsidiary has been, will be or may be suspended, revoked, modified or limited, except in the cases of clauses (i),
(ii), (iii) and (iv) where such rejections, determinations, delays, requests, suspensions, revocations, modifications or limitations
would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.


 


(ww)      Except
as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, to the Company’s knowledge,
any preclinical and clinical testing, application for marketing approval of, manufacture, distribution, promotion and sale of the
products and potential products of the Company or any Subsidiary is in compliance, in all material respects, with all laws, rules
and regulations applicable to such activities, including without limitation applicable good laboratory practices, good clinical
practices and good manufacturing practices, except for such non-compliance as would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect. The descriptions of the results of such tests and trials contained in the Registration
Statement, the General Disclosure Package and the Prospectus are accurate in all material respects. Except to the extent disclosed
in the Registration Statement, the General Disclosure Package and the Prospectus, the Company has not received notice of adverse
finding, warning letter or clinical hold notice from the FDA or any non-U.S. counterpart of any of the foregoing, or any untitled
letter or other correspondence or notice from the FDA or any other governmental authority or agency or any institutional or ethical
review board alleging or asserting noncompliance with any law, rule or regulation applicable in any jurisdiction, except notices,
letters, and correspondences and non-U.S. counterparts thereof alleging or asserting such noncompliance as would not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect. Except as disclosed in the Registration Statement,
the General Disclosure Package and the Prospectus, neither the Company nor any Subsidiary has, either voluntarily or involuntarily,
initiated, conducted or issued, or caused to be initiated, conducted or issued, any recall, field correction, market withdrawal
or replacement, safety alert, warning, “dear doctor” letter, investigator notice, or other notice or action relating
to an alleged or potential lack of safety or efficacy of any product or potential product of the Company or any Subsidiary, any
alleged product defect of any product or potential product of the Company or any Subsidiary, or any violation of any material applicable
law, rule, regulation or any clinical trial or marketing license, approval, permit or authorization for any product or potential
product of the Company or any Subsidiary, and the Company is not aware of any facts or information that would cause it to initiate
any such notice or action and has no knowledge or reason to believe that the FDA, the EMEA or any other governmental agency or
authority or any institutional or ethical review board or other non-governmental authority intends to impose, require, request
or suggest such notice or action. The pre-clinical or clinical studies, tests, investigations, and trials conducted by or on behalf
of the Company or any Subsidiary that are described in the Registration Statement, the General Disclosure Package or the Prospectus
were and, if still in progress, are being, conducted in compliance with all applicable U.S. and foreign statutes, rules, regulations,
orders, or other laws, and, for any data to be submitted to the FDA pursuant to such studies, all applicable Good Laboratory Practices
and Good Clinical Practices in all material respects.


 




    	 	-18-	 



     


    

 


(xx)        Any
certificate signed by or on behalf of the Company and delivered to the Placement Agent or to counsel for the Placement Agent
shall be deemed to be a representation and warranty by the Company to the Placement Agent and the Purchasers as to the matters
covered thereby.


 


4.    THE
CLOSING. The time and date of closing and delivery of the documents required to be delivered to the Placement Agent pursuant
to Sections 5 and 7 hereof shall be at 11:00 A.M., New York time, on or about January __, 2017 (the “Closing Date”)
at the office of Ellenoff Grossman & Schole LLP, 1345 Avenue of the Americas, New York, New York 10105.


 


5.    FURTHER
AGREEMENTS OF THE COMPANY. The Company agrees with the Placement Agent and the Purchasers:


 


(a)          To
prepare the Rule 462(b) Registration Statement, if necessary, in a form approved by the Placement Agent and file such Rule 462(b)
Registration Statement with the Commission on the date hereof; to prepare the Prospectus in a form approved by the Placement Agent
containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on rules
430A, 430B and 430C and to file such Prospectus pursuant to Rule 424(b) under the Rules and Regulations not later than the second
(2nd) business day following the execution and delivery of this Agreement or, if applicable, such earlier time as may
be required by Rule 430A under the Rules and Regulations; until such time as the distribution of the Securities is complete (the
“Completion Date”), to notify the Placement Agent immediately of the Company’s intention to file or prepare
any supplement or amendment to any Registration Statement or to the Prospectus and to make no amendment or supplement to the
Registration Statement, the General Disclosure Package or to the Prospectus to which the Placement Agent shall reasonably
object by notice to the Company after a reasonable period to review; until the Completion Date, to advise the Placement Agent,
promptly after it receives notice thereof, of the time when any amendment to any Registration Statement has been filed or becomes
effective or any supplement to the General Disclosure Package or the Prospectus or any amended Prospectus has been filed and
to furnish the Placement Agent copies thereof; to file promptly all material required to be filed by the Company with the Commission
pursuant to Rule 433(d) or 163(b)(2), as the case may be; to file promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus (or in lieu thereof, the notice referred
to in Rule 173(a) under the Rules and Regulations) is required in connection with the offering or sale of the Securities; to advise
the Placement Agent, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of
any order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus,
of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, of the initiation or threatening
of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration
Statement, the General Disclosure Package or the Prospectus or for additional information; and, in the event of the issuance
of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing
Prospectus or the Prospectus or suspending any such qualification, and promptly to use its best efforts to obtain the withdrawal
of such order.


 




    	 	-19-	 



     


    

 


(b)         The
Company represents and agrees that, unless it obtains the prior consent of the Placement Agent, it has not made and will not make
any offer relating to the Securities that would constitute a “free writing prospectus” as defined in Rule 405
under the Rules and Regulations unless the prior written consent of the Placement Agent has been received (each, a “Permitted
Free Writing Prospectus”); provided that the prior written consent of the Placement Agent hereto shall be deemed
to have been given in respect of the Issuer Free Writing Prospectus included in Schedule A hereto. The Company represents
that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus,
comply with the requirements of Rules 164 and 433 under the Rules and Regulations applicable to any Issuer Free Writing Prospectus,
including the requirements relating to timely filing with the Commission, legending and record keeping and will not take any
action that would result in the Placement Agent or the Company being required to file with the Commission pursuant to Rule 433(d)
under the Rules and Regulations a free writing prospectus prepared by or on behalf of the Placement Agent that the Placement Agent
otherwise would not have been required to file thereunder.


 


(c)          If
at any time until the Completion Date, when a Prospectus relating to the Securities is required to be delivered under the Securities
Act, any event occurs or condition exists as a result of which the Prospectus, as then amended or supplemented, would include any
untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading, or the Registration Statement, as then amended or supplemented,
would include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein
not misleading, or if for any other reason it is necessary at any time to amend or supplement any Registration Statement or the
Prospectus to comply with the Securities Act or the Exchange Act, the Company will promptly notify the Placement Agent, and
upon the Placement Agent’s request, the Company will promptly prepare and file with the Commission, at the Company’s
expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement
or omission or effects such compliance and will deliver to the Placement Agent, without charge, such number of copies thereof
as the Placement Agent may reasonably request. The Company consents to the use of the Prospectus or any amendment or
supplement thereto by the Placement Agent.


 


(d)         If
the General Disclosure Package is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available
to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable
opinion of the Placement Agent, it becomes necessary to amend or supplement the General Disclosure Package in order to make the
statements therein, in the light of the circumstances then prevailing, not misleading, or to make the statements therein not
conflict with the information contained or incorporated by reference in the Registration Statement then on file and not superseded
or modified, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the
Company promptly will either (i) prepare, file with the Commission (if required) and furnish to the Placement Agent and any dealers
an appropriate amendment or supplement to the General Disclosure Package or (ii) prepare and file with the Commission an appropriate
filing under the Exchange Act which shall be incorporated by reference in the General Disclosure Package so that the General Disclosure
Package as so amended or supplemented will not, in the light of the circumstances then prevailing, be misleading or conflict with
the Registration Statement then on file, or so that the General Disclosure Package will comply with law.


 




    	 	-20-	 



     


    

 


(e)         If
at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result
of which such Issuer Free Writing Prospectus conflicted or will conflict with the information contained in the Registration
Statement, any Pricing Prospectus or the Prospectus, including any document incorporated by reference therein and any prospectus
supplement deemed to be a part thereof and not superseded or modified or included or would include an untrue statement of
a material fact or omitted or would 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 prevailing at the subsequent time, not misleading, the Company has promptly
notified or will promptly notify the Placement Agent so that any use of the Issuer Free Writing Prospectus may cease until it is
amended or supplemented and has promptly amended or will promptly amend or supplement, at its own expense, such Issuer Free
Writing Prospectus to eliminate or correct such conflict, untrue statement or omission. The foregoing sentence does not apply
to statements in or omissions from any Issuer Free Writing Prospectus in reliance upon, and in conformity with, written information
furnished to the Company by the Placement Agent specifically for inclusion therein, which information the parties hereto agree
is limited to the Placement Agent’s Information (as defined in Section 17).


 


(f)          To
the extent not available on the Commission’s EDGAR system or any successor system, to furnish promptly to the Placement Agent
and to counsel for the Placement Agent a signed copy of the Registration Statement as originally filed with the Commission, and
of each amendment thereto filed with the Commission, including all consents and exhibits filed therewith.


 


(g)          To
the extent not available on the Commission’s EDGAR system or any successor system, to deliver promptly to the Placement Agent
in New York City such number of the following documents as the Placement Agent shall reasonably request: (i) conformed copies of
the Registration Statement as originally filed with the Commission (in each case excluding exhibits), (ii) each Preliminary
Prospectus, (iii) any Issuer Free Writing Prospectus, (iv) the Prospectus (the delivery of the documents referred to in clauses
(i), (ii), (iii) and (iv) of this paragraph (g) to be made not later than 10:00 A.M., New York time, on the business
day following the execution and delivery of this Agreement), (v) conformed copies of any amendment to the Registration Statement
(excluding exhibits), (vi) any amendment or supplement to the General Disclosure Package or the Prospectus (the delivery of the
documents referred to in clauses (v) and (vi) of this paragraph (g) to be made not later than 10:00 A.M., New York
City time, on the business day following the date of such amendment or supplement) and (vii) any document incorporated
by reference in the Registration Statement, the General Disclosure Package or the Prospectus (excluding exhibits thereto) (the
delivery of the documents referred to in clause (vii) of this paragraph (g) to be made not later than 10:00 A.M., New York
City time, on the business day following the date of such document).


 




    	 	-21-	 



     


    

 


(h)         To
make generally available to its stockholders as soon as practicable, but in any event not later than eighteen (18) months after
the effective date of each Registration Statement (as defined in Rule 158(c) under the Rules and Regulations), an earnings statement
of the Company and any Subsidiary (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules
and Regulations (including, at the option of the Company, Rule 158); and to furnish to its stockholders as soon as practicable
after the end of each fiscal year an annual report (including a balance sheet and statements of income, stockholders’
equity and cash flows of the Company and its consolidated subsidiaries certified by independent public accountants) and
as soon as possible after each of the first three fiscal quarters of each fiscal year (beginning with the first fiscal quarter
after the effective date of such Registration Statement), consolidated summary financial information of the Company and its subsidiaries
for such quarter in reasonable detail.


 


(i)          To
take promptly from time to time such actions as the Placement Agent may reasonably request to qualify the Securities for offering
and sale under the securities or Blue Sky laws of such jurisdictions (domestic or foreign) as the Placement Agent may designate
and to continue such qualifications in effect, and to comply with such laws, for so long as required to permit the offer and
sale of the Securities in such jurisdictions; provided that the Company shall not be obligated to qualify as foreign
corporations in any jurisdiction in which they are not so qualified or to file a general consent to service of process in
any jurisdiction.


 


(j)          To
the extent not available on the Commission’s EDGAR system or any successor system, during the period of two (2) years from
the date hereof, to deliver to the Placement Agent, (i) as soon as they are available, copies of all reports or other communications
furnished to stockholders (other than reports, proxy statements and other information that is electronically filed with the Commission
via EDGAR or any successor system), and (ii) as soon as they are available, copies of any reports and financial statements
furnished or filed with the Commission or any national securities exchange or automatic quotation system on which the Company’s
securities are listed or quoted.


 


(k)          That
the Company will not, for a period of ninety (90) days from the date of the Prospectus (the “Lock-Up Period”),
without the prior written consent of the Placement Agent, directly or indirectly offer, sell, assign, transfer, pledge,
contract to sell, or otherwise dispose of, any shares of Common Stock or any securities convertible into or exercisable or exchangeable
for Common Stock, other than: (i) the Company’s sale of the Securities hereunder and any conversion of the Preferred
Shares or exercise of the Warrants; (ii) the issuance of restricted Common Stock or options to acquire Common Stock pursuant to
the Company’s employee benefit plans, qualified stock option plans or other employee compensation plans as such plans are
in existence on the date hereof and described in the Prospectus; and (iii) the issuance of Common Stock pursuant to the valid
exercises of options, warrants, convertible securities or rights outstanding on the date hereof. The Company also agrees that during
such period, the Company will not file any registration statement, preliminary prospectus or prospectus, or any amendment or supplement
thereto, under the Securities Act for any such transaction or which registers, or offers for sale, Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock, except for a registration statement on Form S-8 relating
to employee benefit plans or registration statement required by the registration rights agreement between the Company and the purchasers
of its convertible notes and Series D Warrants dated December 30, 2015, as amended.


 




    	 	-22-	 



     


    

 


(l)          Until
the Completion Date, to supply the Placement Agent with copies of all correspondence to and from, and all documents issued to and
by, the Commission in connection with the registration of the Securities under the Securities Act or the Registration Statement,
any Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto or document incorporated by reference therein.


 


(m)         Prior
to the Closing Date, to furnish to the Placement Agent, as soon as they have been prepared, copies of any unaudited interim consolidated
financial statements of the Company for any periods subsequent to the periods covered by the financial statements appearing in
the Registration Statement and the Prospectus.


 


(n)         Prior
to the Closing Date, not to issue any press release or other communication directly or indirectly or hold any press conference
with respect to the Company, its condition, financial or otherwise, or earnings, business affairs or business prospects (except
for routine oral marketing communications in the ordinary course of business and consistent with the past practices of the Company
and of which the Placement Agent is notified), without the prior written consent of the Placement Agent, unless in the judgment
of the Company and its counsel, and after notification to the Placement Agent, such press release or communication is
required by law.


 


(o)         Until
the Completion Date, that the Company will not, and will cause its affiliated purchasers (as defined in Regulation M under the Exchange
Act) not to, either alone or with one or more other persons, bid for or purchase, for any account in which it or any
of its affiliated purchasers has a beneficial interest, any Securities, or attempt to induce any person to purchase any Securities;
and not to, and to cause its affiliated purchasers not to, make bids or purchase for the purpose of creating actual, or apparent,
active trading in or of raising the price of the Securities.


 


(p)         Not
to take any action prior to the Closing Date which would require the Prospectus to be amended or supplemented pursuant to Section 5.


 


(q)         To
at all times comply in all material respects with all applicable provisions of the Sarbanes-Oxley Act in effect from time to time.


 


(r)          To
apply the net proceeds from the sale of the Securities as set forth in the Registration Statement, the General Disclosure Package
and the Prospectus under the heading “Use of Proceeds.”


 




    	 	-23-	 



     


    

 


(s)         To
use its best efforts to list and maintain the quotation, subject to notice of issuance, of the Conversion Shares and Warrant Shares
on the OTCQB, OTCQX or a national securities exchange.


 


(t)          To
use its best efforts to assist the Placement Agent with any filings with FINRA and obtaining clearance from FINRA as to the amount
of compensation allowable or payable to the Placement Agent.


 


(u)         To
use its best efforts to do and perform all things required to be done or performed under this Agreement by the Company prior to
the Closing Date and to satisfy all conditions precedent to the delivery of the Securities.


 


6.    PAYMENT
OF EXPENSES. The Company agrees to pay, or reimburse if paid by the Placement Agent, whether or not the transactions contemplated
hereby are consummated or this Agreement is terminated: (a) the costs incident to the authorization, issuance, sale, preparation
and delivery of the Securities to the Purchasers, and any taxes payable in that connection; (b) the costs incident to the registration
of the Securities under the Securities Act, to the extent applicable; (c) the costs incident to the preparation, printing
and distribution of the Registration Statement, any Preliminary Prospectus, any Pricing Prospectus, any Issuer Free Writing Prospectus,
the General Disclosure Package, the Prospectus, any amendments, supplements and exhibits thereto or any document incorporated by
reference therein and the costs of printing, reproducing and distributing any transaction document by mail, telex or other means
of communications; (d) the filing fees and other costs (excluding fees and expenses of counsel for the Placement Agent, if any)
of any required review by FINRA of the terms of the sale of the Securities and any filings made with FINRA; (e) any applicable
listing, quotation or other fees; (f) the filing fees and other costs (excluding fees and expenses of counsel to the Placement
Agent, if applicable) of qualifying the Securities under the securities laws of the several jurisdictions as provided in Section 5(i)
and of preparing, printing and distributing wrappers, Blue Sky Memoranda and Legal Investment Surveys; (g) the cost of preparing
and printing stock certificates and Warrant agreements; (h) all fees and expenses of the registrar and transfer agent of the Preferred
Stock, any registrar and transfer agent of the Common Stock, and any registrar and transfer agent of the Warrants; and (i) all
other costs and expenses of the Company incident to the offering of the Securities or the performance of the obligations of the
Company under this Agreement (including, without limitation, the fees and expenses of the Company’s counsel and the Company’s
independent accountants and the travel and other reasonable documented expenses incurred by Company personnel in connection with
any “road show” including, without limitation, any expenses advanced by the Placement Agent on the Company’s
behalf (which will be promptly reimbursed)); provided that, except to the extent otherwise provided in this Section 6
and in Sections 8 and 10, the Placement Agent shall pay its own costs and expenses. In addition, the Company will
reimburse the Placement Agent for its reasonable out-of-pocket expenses, including legal fees and disbursements of its counsel
in connnection with the purchase and sale of the Securities contemplated hereby; provided that such reimbursement obligation
shall not exceed $100,000 in the aggregate.


 


7.    CONDITIONS
TO THE OBLIGATIONS OF THE COMPANY, THE PLACEMENT AGENT AND THE PURCHASERS, AND THE SALE OF THE SHARES AND THE WARRANTS. The
respective obligations of the Placement Agent hereunder and the Purchasers under the Subscription Agreements, and the Closing of
the sale of the Securities, are subject to the accuracy, when made and as of the Applicable Time and on the Closing Date, of the
representations and warranties of the Company contained herein, to the accuracy of the statements of the Company made in any certificates
pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and to each of the following
additional terms and conditions:


 




    	 	-24-	 



     


    

 


(a)         No
stop order suspending the effectiveness of the Registration Statement or any part thereof, preventing or suspending the use of
any Preliminary Prospectus, any Pricing Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof
shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been
initiated or threatened by the Commission, and all requests for additional information on the part of the Commission (to be included
or incorporated by reference in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the
reasonable satisfaction of the Placement Agent; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus,
if any, and the Prospectus shall have been filed with the Commission within the applicable time period prescribed for such
filing by, and in compliance with, the Rules and Regulations and in accordance with Section 5(a) and the Rule
462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and
FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions
contemplated hereby.


 


(b)         The
Placement Agent shall not have discovered and disclosed to the Company on or prior to the Closing Date that the Registration Statement
or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Placement
Agent, is material or omits to state any fact which, in the opinion of such counsel, is material and is required to be stated
therein or is necessary to make the statements therein not misleading, or that the General Disclosure Package, any Issuer
Free Writing Prospectus or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact
which, in the opinion of such counsel, is material or omits to state any fact which, in the opinion of such counsel, is material
and is necessary in order to make the statements, in the light of the circumstances in which they were made, not misleading.


 


(c)         All
corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the Subscription
Agreements, the Securities, the Registration Statement, the General Disclosure Package, each Issuer Free Writing Prospectus, if
any, and the Prospectus and all other legal matters relating to this Agreement and the transactions contemplated hereby shall
be reasonably satisfactory in all material respects to counsel for the Placement Agent, and the Company shall have furnished to
such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.


 


(d)         (i)
Dorsey & Whitney LLP shall have furnished to the Placement Agent, such counsel’s written opinion and negative assurances
statement, as counsel to the Company, addressed to the Placement Agent and dated the Closing Date, in a form reasonably acceptable
to the Placement Agent and its counsel, subject to reasonably acceptable qualifications, limitations and assumptions.


 




    	 	-25-	 



     


    

 


(ii) Banks,
Gilson & Lione LLP shall have furnished to the Placement Agent, such counsel’s opinion and negative assurance letter,
as intellectual property counsel to the Company, dated the Closing Date, and addressed to the Placement Agent, in a form and substance
reasonably satisfactory to the Placement Agent and its counsel.


 


(e)          The
Placement Agent shall have received a letter of Mantyla McReynolds, LLC, and/or BDO USA, LLP on the date hereof and on the
Closing Date, addressed to the Placement Agent, confirming that they are independent public accountants within the meaning
of the Securities Act and are in compliance with the applicable requirements relating to the qualifications of
accountants under Rule 2-01 of Regulation S-X of the Commission, and confirming, as of the date of each such letter (or, with
respect to matters involving changes or developments since the respective dates as of which specified financial information
is given in the General Disclosure Package, as of a date not prior to the date hereof or more than five days prior to the
date of such letter), the conclusions and findings of said firm with respect to the financial information and other matters
required by the Placement Agent.


 


(f)    
      The Company shall have furnished to the Placement Agent a certificate, dated the Closing
Date, of its Chief Executive Officer, its President or a Vice President and its Chief Financial Officer stating that (i)
such officers have carefully examined the Registration Statement, the General Disclosure Package, any Permitted Free
Writing Prospectus and the Prospectus and, in their opinion, the Registration Statement and each amendment thereto, at the
Applicable Time and as of the date of this Agreement and as of the Closing Date did not include any untrue
statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, and the General Disclosure Package, as of the Applicable Time and as of the
Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and
each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any
untrue statement of a material fact and did not omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date
of the Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to
the Registration Statement, the General Disclosure Package or the Prospectus, (iii) to the best of their knowledge after
reasonable investigation, as of the Closing Date, the representations and warranties of the Company in this Agreement are
true and correct and the Company has complied with all agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date, and (iv) there has not been, subsequent to the date of the most
recent audited financial statements included or incorporated by reference in the Registration Statement, the General
Disclosure Package and the Prospectus, any material adverse change in the financial position or results of operations of the
Company or any Subsidiary, or any change or development that, singularly or in the aggregate, would involve a material
adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of
operations, business, assets or prospects of the Company or any Subsidiary when taken as a whole, except as set forth in
the Registration Statement, the General Disclosure Package and the Prospectus.


 




    	 	-26-	 



     


    

 


(g)          Since
the date of the latest audited financial statements included in the Registration Statement, the General Disclosure Package and
the Prospectus or incorporated by reference therein as of the date hereof, (i) neither the Company nor any Subsidiary shall have
sustained any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the
Registration Statement, the General Disclosure Package and the Prospectus, and (ii) there shall not have been any change in
the capital stock or long-term debt of the Company or any Subsidiary, or any change, or any development involving a prospective
change, in or affecting the business, management, financial position, stockholders’ equity or results of operations of the
Company, otherwise than as set forth in the Registration Statement, the General Disclosure Package and the Prospectus, the
effect of which, in any such case described in clause (i) or (ii) of this paragraph (g) is, in the judgment of the
Placement Agent, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the
Securities on the terms and in the manner contemplated in the General Disclosure Package.


 


(h)          No
action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental
agency or body which would prevent the issuance or sale of the Securities or materially and adversely affect or potentially
materially and adversely affect the business or operations of the Company or any Subsidiary; and no injunction, restraining order
or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent
the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business
or operations of the Company or any Subsidiary.


 


(i)   
      Subsequent to the execution and delivery of this Agreement there shall not have
occurred any of the following: (i) trading in securities generally on the New York Stock Exchange, NYSE MKT or the NASDAQ
Stock Market or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the
over-the-counter market shall have been suspended or materially limited, or minimum or maximum prices or maximum range
for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or
by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been
declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement
or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject
of an act of terrorism, or there shall have been an outbreak of or escalation in hostilities involving the
United States, or there shall have been a declaration of a national emergency or war by the United States or (iv) there shall
have occurred such a material adverse change in general economic, political or financial conditions (or the effect of
international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the
Placement Agent, impracticable or inadvisable to proceed with the sale or delivery of the Securities on the terms and in
the manner contemplated in the Registration Statement, the General Disclosure Package and the Prospectus.


 




    	 	-27-	 



     


    

 


(j)          The
Company shall have entered into Subscription Agreements with each of the Purchasers (other than Purchasers that do not enter into
a Subscription Agreement) and such agreements shall be in full force and effect.


 


(k)         FINRA
shall have raised no objection as to the amount of compensation allowable or payable to the Placement Agent as described in the
General Disclosure Package, any Pricing Prospectus or any Preliminary Prospectus


 


(l)          [Reserved]


 


(m)        Prior
to the Closing Date, the Company shall have furnished to the Placement Agent such further information, opinions, certificates,
letters or documents as the Placement Agent shall have reasonably requested.


 


All opinions, letters,
evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions
hereof only if they are in form and substance reasonably satisfactory to counsel for the Placement Agent.


 


8.    INDEMNIFICATION
AND CONTRIBUTION.


 


(a)          The
Company shall indemnify and hold harmless the Placement Agent, its affiliates and each of its and their respective directors, officers,
members, employees, representatives and agents and its affiliates, and each of its and their respective directors, officers, members,
employees, representatives and agents and each person, if any, who controls the Placement Agent within the meaning of Section 15
of the Securities Act of or Section 20 of the Exchange Act (collectively the “Placement Agent Indemnified Parties,”
and each a “Placement Agent Indemnified Party”) against any loss, claim, damage, expense or
liability whatsoever (or any action, investigation or proceeding in respect thereof), joint or several, to which such Placement
Agent Indemnified Party may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, expense,
liability, action, investigation or proceeding arises out of or is based upon (A) any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement, any Preliminary Prospectus, any Pricing Prospectus, any Issuer Free Writing
Prospectus, any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Rules and
Regulations, or the Prospectus, or in any amendment or supplement thereto or document incorporated by reference therein, (B) the
omission or alleged omission to state in the Registration Statement, any Preliminary Prospectus, any Pricing Prospectus, any Issuer
Free Writing Prospectus, any ”issuer information” filed or required to be filed pursuant to Rule 433(d) under
the Rules and Regulations, or the Prospectus, or in any amendment or supplement thereto or document incorporated by reference therein,
a material fact required to be stated therein or necessary to make the statements therein not misleading, or (C) any breach of
the representations and warranties of the Company contained herein or in the Subscription Agreements or failure of the Company
to perform its obligations hereunder or thereunder or pursuant to any law, any act or failure to act, or any alleged act or failure
to act, by the Placement Agent in connection with, or relating in any manner to, the Securities or the Offering, and which
is included as part of or referred to in any loss, claim, damage, expense, liability, action, investigation or proceeding
arising out of or based upon matters covered by subclause (A), (B) or (C) above of this Section 8(a) (provided
that the Company shall not be liable in the case of any matter covered by this subclause (C) to the extent that it is determined
in a final judgment by a court of competent jurisdiction that such loss, claim, damage, expense or liability resulted directly
from any such act or failure to act undertaken or omitted to be taken by the Placement Agent through its gross negligence or willful
misconduct), and shall reimburse the Placement Agent Indemnified Party promptly upon demand for any legal fees or other expenses
reasonably incurred by that Placement Agent Indemnified Party in connection with investigating, or preparing to defend, or defending against,
or appearing as a third party witness in respect of, or otherwise incurred in connection with, any such loss, claim, damage,
expense, liability, action, investigation or proceeding, as such fees and expenses are incurred; provided, however, that
the Company shall not be liable in any such case to the extent that any such loss, claim, damage, expense or liability arises out
of or is based upon an untrue statement or alleged untrue statement in, or omission or alleged omission from the Registration Statement,
any Preliminary Prospectus, any Pricing Prospectus, any Issuer Free Writing Prospectus, any “issuer information”
filed or required to be filed pursuant to Rule 433(d) under the Rules and Regulations, or the Prospectus, or in any amendment or
supplement thereto or document incorporated by reference therein made in reliance upon and in conformity with written information
furnished to the Company by the Placement Agent specifically for use therein, which information the parties hereto agree is
limited to the Placement Agent’s Information (as defined in Section 17).  This indemnity agreement
is not exclusive and will be in addition to any liability, which the Company might otherwise have and shall not limit any rights
or remedies which may otherwise be available at law or in equity to the Placement Agent Indemnified Party.


 




    	 	-28-	 



     


    

 


(b)         The
Placement Agent shall indemnify and hold harmless the Company and its directors, its officers who signed the Registration Statement
and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act (collectively the “Company Indemnified Parties” and each a “Company Indemnified
Party”) against any loss, claim, damage, expense or liability whatsoever (or any action, investigation or
proceeding in respect thereof), joint or several, to which such Company Indemnified Party may become subject, under the Securities
Act or otherwise, insofar as such loss, claim, damage, expense, liability, action, investigation or proceeding arises out of or
is based upon (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement,
any Preliminary Prospectus, any Pricing Prospectus, any Issuer Free Writing Prospectus, any “issuer information”
filed or required to be filed pursuant to Rule 433(d) under the Rules and Regulations, or the Prospectus, or in any amendment or
supplement thereto or document incorporated by reference therein, or (ii) the omission or alleged omission to state in the Registration
Statement, any Preliminary Prospectus, any Pricing Prospectus, any Issuer Free Writing Prospectus, any “issuer information”
filed or required to be filed pursuant to Rule 433(d) under the Rules and Regulations, or the Prospectus, or in any amendment or
supplement thereto or document incorporated by reference therein, a material fact required to be stated therein or necessary
to make the statements therein not misleading, but in each case only to the extent that the untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished
to the Company by the Placement Agent specifically for use therein, which information the parties hereto agree is limited to the
Placement Agent’s Information as defined in Section 17 and shall reimburse the Company for any legal or other
expenses reasonably incurred by such party in connection with investigating or preparing to defend or defending against or
appearing as third party witness in connection with any such loss, claim, damage, liability, action, investigation or proceeding,
as such fees and expenses are incurred. Notwithstanding the provisions of this Section 8(b) in no event shall
any indemnity by the Placement Agent under this Section 8(b) exceed the total compensation received by the
Placement Agent in accordance with Section 2.5.


 




    	 	-29-	 



     


    

 


(c)         Promptly
after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against an indemnifying party under this Section 8 notify
such indemnifying party in writing of the commencement of that action; provided, however, that the failure to notify
the indemnifying party shall not relieve it from any liability which it may have under this Section 8 except to
the extent it has been materially prejudiced by such failure; and, provided, further, that the failure to notify an indemnifying
party shall not relieve it from any liability which it may have to an indemnified party otherwise than under this Section 8.
If any such action shall be brought against an indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and, to the extent that it wishes, jointly with any other similarly
notified indemnifying party, to assume the defense of such action with counsel reasonably satisfactory to the indemnified party
(which counsel shall not, except with the written consent of the indemnified party, be counsel to the indemnifying party). After
notice from the indemnifying party to the indemnified party of its election to assume the defense of such action, except as provided
herein, the indemnifying party shall not be liable to the indemnified party under Section 8 for any legal or other
expenses subsequently incurred by the indemnified party in connection with the defense of such action other than reasonable
costs of investigation; provided, however, that any indemnified party shall have the right to employ separate counsel in
any such action and to participate in the defense of such action but the fees and expenses of such counsel (other than reasonable
costs of investigation) shall be at the expense of such indemnified party unless (i) the employment thereof has been specifically
authorized in writing by the Company in the case of a claim for indemnification under Section 8(a) or Section
2(f) or the Placement Agent in the case of a claim for indemnification under Section 8(b), (ii) such indemnified
party shall have been advised by its counsel that there may be one or more legal defenses available to it which are different from or
additional to those available to the indemnifying party that make it inadvisable for joint representation by one counsel, or (iii)
the indemnifying party has failed to assume the defense of such action and employ counsel reasonably satisfactory to the indemnified
party within a reasonable period of time after notice of the commencement of the action or the indemnifying party does
not diligently defend the action after assumption of the defense, in which case, if such indemnified party notifies the indemnifying
party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall
not have the right to assume the defense of (or, in the case of a failure to diligently defend the action after assumption
of the defense, to continue to defend) such action on behalf of such indemnified party and the indemnifying party shall be
responsible for legal or other expenses subsequently incurred by such indemnified party in connection with the defense of
such action; provided, however, that the indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances,
be liable for the reasonable fees and expenses of more than one separate firm of attorneys at any time for all such indemnified
parties (in addition to any local counsel), which firm shall be designated in writing by the Placement Agent if the indemnified
parties under this Section 8 consist of any Placement Agent Indemnified Party or by the Company if the indemnified
parties under this Section 8 consist of any Company Indemnified Parties. Subject to this Section 8(c),
the amount payable by an indemnifying party under Section 8 shall include, but not be limited to, (x) reasonable legal
fees and expenses of counsel to the indemnified party and any other expenses in investigating, or preparing to defend or defending
against, or appearing as a third party witness in respect of, or otherwise incurred in connection with, any action, investigation,
proceeding or claim, and (y) all amounts paid in settlement of any of the foregoing. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent to the entry of judgment with respect to any pending
or threatened action or any claim whatsoever, in respect of which indemnification or contribution could be sought under
this Section 8 (whether or not the indemnified parties are actual or potential parties thereto), unless such settlement,
compromise or consent (i) includes an unconditional release of each indemnified party in form and substance reasonably satisfactory
to such indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to or
an admission of fault, culpability or a failure to act by or on behalf of any indemnified party. Subject to the provisions of the
following sentence, no indemnifying party shall be liable for settlement of any pending or threatened action or any claim whatsoever
that is effected without its written consent (which consent shall not be unreasonably withheld or delayed), but if settled
with its written consent, if its consent has been unreasonably withheld or delayed or if there be a judgment for the plaintiff
in any such matter, the indemnifying party agrees to indemnify and hold harmless any indemnified party from and against
any loss or liability by reason of such settlement or judgment. In addition, if at any time an indemnified party shall have requested
that an indemnifying party reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that
it shall be liable for any settlement of the nature contemplated herein effected without its written consent if (i) such settlement
is entered into more than forty-five (45) days after receipt by such indemnifying party of the request for reimbursement, (ii)
such indemnifying party shall have received notice of the terms of such settlement at least thirty (30) days prior to such settlement
being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request
prior to the date of such settlement.


 




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(d)         If
the indemnification provided for in this Section 8 is unavailable or insufficient to hold harmless an indemnified party
under Section 8(a) or Section 8(b), then each indemnifying party shall, in lieu of indemnifying such indemnified
party, contribute to the amount paid, payable or otherwise incurred by such indemnified party as a result of such loss, claim,
damage, expense or liability (or any action, investigation or proceeding in respect thereof), as incurred, (i) in such proportion
as shall be appropriate to reflect the relative benefits received by the Company on the one hand and the Placement Agent on
the other hand from the offering of the Securities, or (ii) if the allocation provided by clause (i) of this Section 8(d)
is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) of this Section 8(d) but also the relative fault of the Company on the one hand and the Placement
Agent on the other with respect to the statements, omissions, acts or failures to act which resulted in such loss, claim,
damage, expense or liability (or any action, investigation or proceeding in respect thereof) as well as any other relevant
equitable considerations. The relative benefits received by the Company on the one hand and the Placement Agent on the other
with respect to such offering shall be deemed to be in the same proportion as the total net proceeds from the offering of
the Securities purchased under this Agreement (before deducting expenses) received by the Company bear to the total Placement
Fee received by the Placement Agent in connection with the Offering, in each case as set forth in the table on the cover page of
the Prospectus. The relative fault of the Company on the one hand and the Placement Agent on the other shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company on the one hand or the Placement Agent on the
other, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such
untrue statement, omission, act or failure to act; provided that the parties hereto agree that the written information furnished
to the Company by the Placement Agent for use in the Registration Statement, any Preliminary Prospectus, any Pricing Prospectus,
any Issuer Free Writing Prospectus, any “issuer information” filed or required to be filed pursuant to Rule 433(d)
under the Rules and Regulations, or the Prospectus, or in any amendment or supplement thereto or document incorporated by reference
therein, consists solely of the Placement Agent’s Information as defined in Section 17. The Company and
the Placement Agent agree that it would not be just and equitable if contributions pursuant to this Section 8(d) were
to be determined by pro rata allocation or by any other method of allocation that does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified party as a result of the loss, claim, damage,
expense, liability, action, investigation or proceeding referred to above in this Section 8(d) shall be deemed
to include, for purposes of this Section 8(d). any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating, preparing to defend or defending against or appearing as a third party witness in respect
of, or otherwise incurred in connection with, any such loss, claim, damage, expense, liability, action, investigation or proceeding.
Notwithstanding the provisions of this Section 8(d), the Placement Agent shall not be required to contribute
any amount in excess of the total compensation received by the Placement Agent in accordance with Section 2.5
less the amount of any damages which the Placement Agent has otherwise paid or become liable to pay by reason of any untrue or
alleged untrue statement, omission or alleged omission, act or alleged act or failure to act or alleged failure to act. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.


 




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9.    TERMINATION.
 The obligations of the Placement Agent and the Purchasers hereunder and under the Subscription Agreements may be terminated
by the Placement Agent, in its absolute discretion by notice given to the Company prior to delivery of and payment for the
Securities if, prior to that time, (i) any of the conditions to closing in Section 7 shall not have been satisfied in full
and shall not have been expressly waived in writing by the Placement Agent, (ii) any of the events described in Section 7(a),
(b), (g), (h) or (i) shall have occurred or (iii) the Purchasers shall decline to purchase the Securities for any reason permitted
under this Agreement or the Subscription Agreements.


 


10.  REIMBURSEMENT
OF PLACEMENT AGENT’S EXPENSES. Notwithstanding anything to the contrary in this Agreement, if (a) this Agreement shall
have been terminated pursuant to Section 9, (b) the Company shall fail to tender the Securities for delivery to the
Purchasers for any reason not permitted under this Agreement, (c) the Purchasers shall decline to purchase the Securities
for any reason permitted under this Agreement or (d) the sale of the Securities is not consummated because any condition to
the obligations of the Purchasers or the Placement Agent set forth herein is not satisfied or because of the refusal, inability
or failure on the part of the Company to perform any agreement herein or to satisfy any condition or to comply with the provisions
hereof, then in addition to the payment of amounts in accordance with Section 6 the Company shall reimburse the Placement
Agent for the reasonable documented and accountable fees and expenses of the Placement Agent’s counsel and for such other
out-of-pocket expenses as shall have been reasonably incurred by them in connection with this Agreement and the proposed purchase
of the Securities, and upon demand the Company shall pay the full amount thereof to the Placement Agent.


 


11.   ABSENCE
OF FIDUCIARY RELATIONSHIP. The Company acknowledges and agrees that:


 


(a)         the
Placement Agent’s responsibility to the Company is solely contractual in nature, the Placement Agent has been retained
solely to act as Placement Agent in connection with the Offering and no fiduciary, advisory or agency relationship between
the Company and the Placement Agent has been created in respect of any of the transactions contemplated by this Agreement,
irrespective of whether the Placement Agent has advised or is advising the Company on other matters;


 


(b)         the
price of the Securities set forth in this Agreement was established by the Company following discussions and arms-length negotiations
with the Placement Agent and the Purchasers, and the Company is capable of evaluating and understanding, and understands and
accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;


 


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


 


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


 




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12.   SUCCESSORS;
PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall inure to the benefit of and be binding upon the Placement
Agent, the Company, and their respective successors and assigns. This Agreement shall also inure to the benefit of the Purchasers,
and each of their respective successors and assigns, which shall be third party beneficiaries hereof. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any person, other than the persons mentioned in
the preceding sentences, any legal or equitable right, remedy or claim under or in respect of this Agreement, or any provisions
herein contained, this Agreement and all conditions and provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person; except that the representations, warranties, covenants, agreements
and indemnities of the Company contained in this Agreement shall also be for the benefit of the Placement Agent Indemnified
Parties and the indemnities of the  Placement Agent shall be for the benefit of the Company Indemnified Parties. It is understood
that the Placement Agent’s responsibility to the Company is solely contractual in nature and the Placement Agent does
not owe the Company, or any other party, any fiduciary duty as a result of this Agreement.


 


13.  SURVIVAL
OF INDEMNITIES, REPRESENTATIONS, WARRANTIES, ETC. The respective indemnities, covenants, agreements, representations, warranties
and other statements of the Company and the Placement Agent, as set forth in this Agreement or made by them respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless of any investigation made by or on behalf of the
Placement Agent, the Company, the Purchasers or any person controlling any of them and shall survive delivery of and payment
for the Securities. Notwithstanding any termination of this Agreement, including without limitation any termination pursuant to
Sections 9 or 10, the indemnity and contribution agreements contained in Section 8 and the covenants,
representations, warranties set forth in this Agreement shall not terminate and shall remain in full force and effect at all
times.


 


14.   NOTICES.
All statements, requests, notices and agreements hereunder shall be in writing, and:


 


(a)          if
to the Placement Agent, shall be delivered or sent by mail, telex, facsimile transmission or overnight courier to Roth Capital
Partners, LLC, 888 San Clemente Drive, Newport Beach, California 92660, Attention: Aaron Gurewitz, Fax: (949) 720-7227, with a
copy (which shall not constitute notice) to: Ellenoff Grossman & Schole LLP, 1345 Avenue of the Americas, New York, NY 10020,
Attention: Robert F. Charron, Fax (212) 401-4741; and


 


(b)          if
to the Company, shall be delivered or sent by mail, telex, facsimile transmission or overnight courier to 2441 South 3850 West,
Salt Lake City, Utah 84120, Attention: Chief Financial Officer, Fax: (801) 990-1051, with a copy (which shall not constitute notice)
to: Dorsey & Whitney LLP, 1400 Wewatta Street, Suite 400, Denver, Colorado 80202, Attention: Jason K. Brenkert, Fax: (303)
629-3450.


 


Any such statements, requests, notices
or agreements shall take effect at the time of receipt thereof, except that any such statement, request, notice or agreement
delivered or sent by email shall take effect at the time of confirmation of receipt thereof by the recipient thereof.


 




    	 	-33-	 



     


    

 


15.   DEFINITION
OF CERTAIN TERMS. For purposes of this Agreement, “business day” means any day on which the New York Stock
Exchange, Inc. is open for trading.


 


16.   GOVERNING
LAW, AGENT FOR SERVICE AND JURISDICTION. This Agreement shall be governed by and construed in accordance with the laws of
the State of New York, including without limitation Section 5-1401 of the New York General Obligations Law. No legal proceeding
may be commenced, prosecuted or continued in any court other than the courts of the State of New York located in the City and
County of New York or in the United States District Court for the Southern District of New York, which courts shall have jurisdiction
over the adjudication of such matters, and the Company and the Placement Agent each hereby consent to the jurisdiction of such
courts and personal service with respect thereto. The Company and the Placement Agent each hereby consent to personal jurisdiction,
service and venue in any court in which any legal proceeding arising out of or in any way relating to this Agreement is brought
by any third party against the Company or the Placement Agent. The Company and the Placement Agent each hereby waive all right
to trial by jury in any legal proceeding (whether based upon contract, tort or otherwise) in any way arising out of or relating
to this Agreement. The Company agrees that a final judgment in any such legal proceeding brought in any such court shall be
conclusive and binding upon the Company and the Placement Agent and may be enforced in any other courts in the jurisdiction
of which the Company is or may be subject, by suit upon such judgment.


 


17.  PLACEMENT
AGENT’S INFORMATION. The parties hereto acknowledge and agree that, for all purposes of this Agreement, the Placement
Agent’s Information consists solely of the following information in the Prospectus: the first sentence of the first
paragraph under the subheading “Electronic Distribution” under the heading “Plan of Distribution.”


 


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


 


19.   GENERAL.
This Agreement constitutes the entire agreement of the parties to this Agreement and supersedes all prior written or oral
and all contemporaneous oral agreements, understandings and negotiations with respect to the subject matter hereof; provided,
however, that the Engagement Agreement, dated August 12, 2016, as amended on December 5, 2016, between the Company and Placement
Agent shall continue to be effective and the terms therein shall continue to survive and be enforceable by the Placement Agent
in accordance with its terms, provided that, in the event of a conflict between the terms of the Engagement Agreement and this
Agreement, the terms of this Agreement shall prevail. In this Agreement, the masculine, feminine and neuter genders and the singular
and the plural include one another. The Section headings in this Agreement are for the convenience of the parties only
and will not affect the construction or interpretation of this Agreement. This Agreement may be amended or modified, and the observance
of any term of this Agreement may be waived, only by a writing signed by the Company and the Placement Agent.


 




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20.  COUNTERPARTS.
This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as
if the signatures thereto and hereto were upon the same instrument and such signatures may be delivered by facsimile.




    	 	-35-	 



     


    

 


If the foregoing is in
accordance with your understanding of the agreement between the Company and the Placement Agent, kindly indicate your acceptance
in the space provided for that purpose below.


 





	 	Very truly yours,
	 	 
	 	GREAT BASIN SCIENTIFIC, INC.
	 	 
	 	By: 	 
	 	 	Name: 
	 	 	Title: 




 





	Accepted as of the date first above written:	 
	 	 
	ROTH CAPITAL PARTNERS, LLC	 
	 	 
	By:	 	 
	 	Name: Michael Margolis, R.Ph.	 
	 	Title: Managing Director	 




 







    	 	-36-	 



     


    

 


SCHEDULE A


 


General Use Free Writing Prospectuses


 




     


     


    

 


EXHIBIT A


 


Form of Subscription Agreement


 




     


     


    

 


EXHIBIT B


 


Form of Series I Warrant


 




    	 	B-1