Exhibit
10.5


 


ACTINIUM
PHARMACEUTICALS, INC. 


 


Common
Stock

(par value $0.001 per share)


 


Amended
and Restated At-the-Market Market Issuance Sales Agreement


 


July
3, 2017


 


FBR
Capital Markets & Co.


1300
North 17th Street


Suite
1400


Arlington,
Virginia 22209


 


MLV
& Co. LLC


299
Park Avenue, 7th Floor


New
York, NY 10171


 


JonesTrading
Institutional Services LLC


780
Third Avenue


New
York, NY 10017


 


Ladies
and Gentlemen:


 


Actinium
Pharmaceuticals, Inc., a Delaware corporation (the “Company”), and MLV & Co. LLC (“MLV”),
are parties to that certain At-the-Market Issuance Sales Agreement dated March 24, 2014 (the “Original Sales Agreement”).
Together with FBR Capital Markets & Co. (“FBR”) and JonesTrading Institutional Services LLC (“JonesTrading”;
each of FBR, MLV and JonesTrading individually an “Agent” and collectively, the “Agents”),
the Company and the Agents desire to amend and restate the Original Sales Agreement with this agreement (the “Agreement”),
and hereby agree as follows:


 


1. Issuance
and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and
subject to the conditions set forth herein, it may issue and sell through the Agents, shares (the “Placement
Shares”) of the Company’s common stock, par value $0.001 per share (the “Common Stock”), provided
however, that in no event shall the Company issue or sell through the Agents such number of Placement Shares that (a)
exceeds the number of shares of Common Stock registered on the effective Registration Statement (as defined below) pursuant
to which the offering is being made, or (b) exceeds the number of authorized but unissued shares of Common Stock (the lesser
of (a) and (b), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the
parties hereto agree that compliance with the limitations set forth in this Section 1 on the number of Placement
Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agents shall have no
obligation in connection with such compliance. The issuance and sale of Placement Shares through the Agents will be effected
pursuant to the Registration Statement (as defined below), although nothing in this Agreement shall be construed as requiring
the Company to use the Registration Statement to issue any Placement Shares.








     

     


    

 


The
Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended, and the rules and regulations
thereunder (the “Securities Act”), with the Securities and Exchange Commission (the “Commission”),
a registration statement on Form S-3 (File No. 333-194768) (the “Current Registration Statement”), including
a base prospectus relating to certain securities, including the Placement Shares to be issued from time to time by the Company,
and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the
Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (the “Exchange Act”).
The Company has prepared a prospectus supplement specifically relating to the Placement Shares (the “Prospectus Supplement”)
to the base prospectus included as part of such registration statement. The Company will furnish to the Agents, for use by the
Agents, copies of the prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement,
relating to the Placement Shares. Except where the context otherwise requires, such registration statement, and any post-effective
amendment thereto, including all documents filed as part thereof or incorporated by reference therein, and including any information
contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities
Act or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act or any subsequent registration
statement on Form S-3 filed pursuant to Rule 415(a)(6) under the Securities Act by the Company to cover any securities registered
pursuant the Current Registration Statement, including any Placement Shares, as a result of the end of the three-year period described
in Rule 415(a)(5) of the Securities Act, is herein called the “Registration Statement.” The base prospectus,
including all documents incorporated or deemed incorporated therein by reference to the extent such information has not been superseded
or modified in accordance with Rule 412 under the Securities Act (as qualified by Rule 430B(g) of the Securities Act), included
in the Registration Statement, as it may be supplemented by the Prospectus Supplement, in the form in which such prospectus and/or
Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities
Act, is herein called the “Prospectus.” Any reference herein to the Registration Statement, the Prospectus
or any amendment or supplement thereto shall be deemed to refer to and include the documents incorporated or deemed incorporated
by reference therein, and any reference herein to the terms “amend,” “amendment” or “supplement”
with respect to the Registration Statement or the Prospectus shall be deemed to refer to and include the filing after the execution
hereof of any document with the Commission deemed to be incorporated by reference therein (the “Incorporated Documents”).


 


For
purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto
shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and
Retrieval System, or if applicable, the Interactive Data Electronic Application system when used by the Commission (collectively,
“EDGAR”).


 


2.
Placements. Each time that the Company wishes to issue and sell Placement Shares hereunder (each, a “Placement”),
it will notify an Agent (the “Designated Agent”) by email notice (or other method mutually agreed to in writing
by the Parties) of the number of Placement Shares, the time period during which sales are requested to be made, any limitation
on the number of Placement Shares that may be sold in any one day and any minimum price below which sales may not be made (a “Placement
Notice”), the form of which is attached hereto as Schedule 1. The Placement Notice shall originate from any of
the individuals from the Company set forth on Schedule 3 (with a copy to each of the other individuals from the Company
listed on such schedule), and shall be addressed to each of the individuals from the Designated Agent set forth on Schedule
3, as such Schedule 3 may be amended from time to time. Provided that the Company is otherwise in compliance with the
terms of this Agreement, the Placement Notice shall be effective immediately upon receipt by the Designated Agent unless and until
(i) the Designated Agent declines to accept the terms contained therein for any reason, in its sole discretion, (ii) the entire
amount of the Placement Shares thereunder has been sold, (iii) the Company suspends or terminates the Placement Notice or (iv)
this Agreement has been terminated under the provisions of Section 13. The amount of any discount, commission or other
compensation to be paid by the Company to the Designated Agent in connection with the sale of the Placement Shares shall be calculated
in accordance with the terms set forth in Schedule 2. It is expressly acknowledged and agreed that neither the Company
nor the Designated Agent will have any obligation whatsoever with respect to a Placement or any Placement Shares unless and until
the Company delivers a Placement Notice to the Designated Agent and the Designated Agent does not decline such Placement Notice
pursuant to the terms set forth above, and then only upon the terms specified therein and herein. In the event of a conflict between
the terms of Sections 2 or 3 of this Agreement and the terms of a Placement Notice, the terms of the Placement Notice
will control.


 






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3.
Sale of Placement Shares by the Agents. Subject to the terms and conditions of this Agreement, for the period specified
in a Placement Notice, the Designated Agent will use its commercially reasonable efforts consistent with its normal trading and
sales practices and applicable state and federal laws, rules and regulations and the rules of such national securities exchange
that the Company’s Common Stock is listed on (the “Exchange”), to sell the Placement Shares up to the
amount specified in, and otherwise in accordance with the terms of, such Placement Notice. The Designated Agent will provide written
confirmation to the Company no later than the opening of the Trading Day (as defined below) immediately following the Trading
Day on which it has made sales of Placement Shares hereunder setting forth the number of Placement Shares sold on such day, the
compensation payable by the Company to the Designated Agent pursuant to Section 2 with respect to such sales, and the Net
Proceeds (as defined below) payable to the Company, with an itemization of the deductions made by the Designated Agent (as set
forth in Section 5(b)) from the gross proceeds that it receives from such sales. Subject to the terms of a Placement Notice,
the Designated Agent may sell Placement Shares by any method permitted by law deemed to be an “at the market offering”
as defined in Rule 415 of the Securities Act. “Trading Day” means any day on which Common Stock is purchased
and sold on the Exchange.


 


4.
Suspension of Sales. The Company or the Designated Agent may, upon notice to the other party in writing (including by email
correspondence to each of the individuals of the other party set forth on Schedule 3, if receipt of such correspondence
is actually acknowledged by any of the individuals to whom the notice is sent, other than via auto-reply) or by telephone (confirmed
immediately by verifiable facsimile transmission or email correspondence to each of the individuals of the other party set forth
on Schedule 3), suspend any sale of Placement Shares; provided, however, that such suspension shall not affect or
impair any party’s obligations with respect to any Placement Shares sold hereunder prior to the receipt of such notice.
While a suspension is in effect, any obligation under Sections 7(l), 7(m), and 7(n) with respect to the delivery of certificates,
opinions, or comfort letters to the Agents, shall be waived; provided, however, that such waiver shall not apply for the
Representation Date (as defined below) occurring on the date that the Company files its annual report on Form 10-K. Each of the
parties agrees that no such notice under this Section 4 shall be effective against any other party unless it is made to
one of the individuals named on Schedule 3 hereto, as such Schedule may be amended from time to time.


 






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5.
Sale and Delivery to the Designated Agent; Settlement.


 


a.
Sale of Placement Shares. On the basis of the representations and warranties herein contained and subject to the terms
and conditions herein set forth, upon the Designated Agent’s acceptance of the terms of a Placement Notice, and unless the
sale of the Placement Shares described therein has been declined, suspended, or otherwise terminated in accordance with the terms
of this Agreement, the Designated Agent, for the period specified in the Placement Notice, will use its commercially reasonable
efforts consistent with its normal trading and sales practices to sell such Placement Shares up to the amount specified in, and
otherwise in accordance with the terms of, such Placement Notice. The Company acknowledges and agrees that (i) there can be no
assurance that the Designated Agent will be successful in selling Placement Shares, (ii) the Designated Agent will incur no liability
or obligation to the Company or any other person or entity if it does not sell Placement Shares for any reason other than a failure
by the Designated Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and
applicable law and regulations to sell such Placement Shares as required under this Agreement and (iii) the Designated Agent shall
be under no obligation to purchase Placement Shares on a principal basis pursuant to this Agreement, except as otherwise agreed
by the Designated Agent and the Company.


 


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


 


c. Delivery
of Placement Shares. On or before each Settlement Date, the Company will, or will cause its transfer agent
to, electronically transfer the Placement Shares being sold by crediting the Designated Agent’s or its designee’s
account (provided the Designated Agent shall have given the Company written notice of such designee at least one Trading Day
prior to the Settlement Date) at The Depository Trust Company through its Deposit and Withdrawal at Custodian System or by
such other means of delivery as may be mutually agreed upon by the parties hereto which in all cases shall be freely
tradable, transferable, registered shares in good deliverable form. On each Settlement Date, the Designated Agent will
deliver the related Net Proceeds in same day funds to an account designated by the Company on, or prior to, the Settlement
Date. The Company agrees that if the Company, or its transfer agent (if applicable), defaults in its obligation to deliver
Placement Shares on a Settlement Date, through no fault of the Designated Agent, the Company agrees that in addition to and
in no way limiting the rights and obligations set forth in Section 11(a) hereto, it will (i) hold the Designated Agent
harmless against any loss, claim, damage, or reasonable, documented expense (including reasonable and documented legal fees
and expenses), as incurred, arising out of or in connection with such default by the Company or its transfer agent (if
applicable) and (ii) pay to the Designated Agent (without duplication) any commission, discount, or other compensation to
which it would otherwise have been entitled absent such default.


 






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d.
Limitations on Offering Size. Under no circumstances shall the Company cause or request the offer or sale of any Placement
Shares if, after giving effect to the sale of such Placement Shares, the aggregate number of Placement Shares sold pursuant to
this Agreement would exceed the lesser of (A) together with all sales of Placement Shares under this Agreement, the Maximum Amount,
(B) the amount available for offer and sale under the currently effective Registration Statement and (C) the amount authorized
from time to time to be issued and sold under this Agreement by the Company’s board of directors, a duly authorized committee
thereof or a duly authorized executive committee, and notified to the Designated Agent in writing. Under no circumstances shall
the Company cause or request the offer or sale of any Placement Shares pursuant to this Agreement at a price lower than the minimum
price authorized from time to time by the Company’s board of directors, a duly authorized committee thereof or a duly authorized
executive committee, and notified to the Designated Agent in writing. Further, under no circumstances shall the Company cause
or permit the aggregate offering amount of Placement Shares sold pursuant to this Agreement to exceed the Maximum Amount.


 


e. Sales
Through Agents. The Company agrees that any offer to sell, any solicitation of an offer to buy, or any sales of
Common Stock or any other equity security of the Company shall only be effected by or through an Agent, and only a single
Agent, on any single given date, and in no event shall the Company request that more than one Agent sell Securities on the
same day; provided however that (i) the foregoing limitation shall not apply to (A) exercise of any option, warrant, right or
any conversion privilege set forth in the instruction governing such securities, (B) sales solely to employees, directors or
security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the
accounts of such person and (ii) such limitation shall not apply (A) on any day during which no sales are made pursuant to
this Agreement or (B) during a period in which the Company has notified the Agents that it will not sell Common Stock under
this Agreement and (1) no Placement Notice is pending or (2) after a Placement Notice has been withdrawn.


 


6.
Representations and Warranties of the Company. Except as disclosed in the Registration Statement or Prospectus (including
the Incorporated Documents), the Company represents and warrants to, and agrees with each Agent that as of the date of this Agreement
and as of each Applicable Time (as defined below), unless such representation, warranty or agreement specifies a different date
or time:


 


a.
Registration Statement and Prospectus. The Company and, assuming no act or omission on the part of the Agents that would
make such statement untrue, the transactions contemplated by this Agreement meet the requirements for and comply with the conditions
for the use of Form S-3 under the Securities Act. The Registration Statement has been filed with the Commission and has been declared
effective under the Securities Act. The Prospectus will name FBR, MLV and JonesTrading as the agents in the section entitled “Plan
of Distribution.” The Company has not received, and has no notice of, any order of the Commission preventing or suspending
the use of the Registration Statement, or threatening or instituting proceedings for that purpose. The Registration Statement
and the offer and sale of Placement Shares as contemplated hereby meet the requirements of Rule 415 under the Securities Act and
comply in all material respects with said Rule. Any statutes, regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement have been so
described or filed. Copies of the Registration Statement, the Prospectus, and any such amendments or supplements and all documents
incorporated by reference therein that were filed with the Commission on or prior to the date of this Agreement have been delivered,
or are available through EDGAR, to the Agents and their counsel. The Company has not distributed and, prior to the later to occur
of each Settlement Date and completion of the distribution of the Placement Shares, will not distribute any offering material
in connection with the offering or sale of the Placement Shares other than the Registration Statement and the Prospectus and any
Issuer Free Writing Prospectus (as defined below) to which the Agents have consented, such consent not to be unreasonably withheld,
conditioned or delayed. The Common Stock is currently listed on the Exchange. The Company has not, in the 12 months preceding
the date hereof, received notice from the Exchange to the effect that the Company is not in compliance in all material respects
with the listing or maintenance requirements of the Exchange. The Company has no reason to believe that it will not in the foreseeable
future continue to be in compliance with all such listing and maintenance requirements.


 






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b.
No Misstatement or Omission. The Registration Statement, when it became effective, and the Prospectus, and any amendment
or supplement thereto, on the date of such Prospectus or amendment or supplement, conformed and will conform in all material respects
with the requirements of the Securities Act. At each Settlement Date, the Registration Statement and the Prospectus, as of such
date, will conform in all material respects with the requirements of the Securities Act. The Registration Statement, when it became
or becomes effective, did not, and will not, contain an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading. The Prospectus and any amendment and supplement
thereto, on the date thereof and at each Applicable Time (defined below), did not or will not include an untrue statement of a
material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which
they were made, not misleading. The documents incorporated by reference in the Prospectus or any Prospectus Supplement did not,
and any further documents filed and incorporated by reference therein will not, when filed with the Commission, contain an untrue
statement of a material fact or omit to state a material fact required to be stated in such document or necessary to make the
statements in such document, in light of the circumstances under which they were made, not misleading. The foregoing shall not
apply to statements in, or omissions from, any such document made in reliance upon, and in conformity with, information furnished
to the Company by an Agent specifically for use in the preparation thereof.


 


c. Conformity
with Securities Act and Exchange Act. The Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or
any amendment or supplement thereto, and the Incorporated Documents, when such documents were or are filed with the
Commission under the Securities Act or the Exchange Act or became or become effective under the Securities Act, as the case
may be, conformed or will conform in all material respects with the requirements of the Securities Act and the Exchange Act,
as applicable.


 






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d.
Financial Information. The consolidated financial statements of the Company included or incorporated by reference in the
Registration Statement and the Prospectus, together with the related notes and schedules, present fairly, in all material respects,
the consolidated financial position of the Company and the Subsidiaries (as defined below) as of the dates indicated and the consolidated
statement of operations, consolidated statement of cash flows and consolidated statement of stockholders’ equity (deficit)
of the Company for the periods specified and have been prepared in compliance in all material respects with the requirements of
the Securities Act and Exchange Act, as applicable, and in conformity with generally accepted accounting principles (“GAAP”)
in the United States as in effect as of the time of filing applied on a consistent basis (except for such adjustments to accounting
standards and practices as are noted therein) during the periods involved (subject, in the case of unaudited financial statements,
to normal recurring adjustments and to the extent they may exclude footnotes or may be condensed or summarized statements); the
other financial and statistical data with respect to the Company and the Subsidiaries contained or incorporated by reference in
the Registration Statement and the Prospectus, are accurately and fairly presented and prepared on a basis consistent with the
financial statements and books and records of the Company; there are no financial statements (historical or pro forma) that are
required to be included or incorporated by reference in the Registration Statement, or the Prospectus that are not included or
incorporated by reference as required; the Company and the Subsidiaries do not have any material liabilities or obligations, direct
or contingent (including any off balance sheet obligations), not described in the Registration Statement, and the Prospectus which
are required to be described in the Registration Statement or Prospectus; and all disclosures contained or incorporated by reference
in the Registration Statement and the Prospectus, if any, regarding “non-GAAP financial measures” (as such term is
defined by the rules and regulations of the Commission) comply in all material respects with Regulation G of the Exchange Act
and Item 10 of Regulation S-K under the Securities Act, to the extent applicable.


 


e.
Conformity with EDGAR Filing. The Prospectus delivered to the Agents for use in connection with the sale of the Placement
Shares pursuant to this Agreement will be identical to the versions of the Prospectus created to be transmitted to the Commission
for filing via EDGAR, except to the extent permitted by Regulation S-T.


 


f.
Organization. The Company and any subsidiary that is a significant subsidiary (as such term is defined in Rule 1-02 of
Regulation S-X promulgated by the Commission) (each, a “Subsidiary”, collectively, the “Subsidiaries”),
are, and will be, duly organized, validly existing as a corporation and in good standing under the laws of their respective jurisdictions
of organization. The Company and the Subsidiaries are, and will be, duly licensed or qualified as a foreign corporation for transaction
of business and in good standing under the laws of each other jurisdiction in which their respective ownership or lease of property
or the conduct of their respective businesses requires such license or qualification, and have all corporate power and authority
necessary to own or hold their respective properties and to conduct their respective businesses as described in the Registration
Statement and the Prospectus, except where the failure to be so qualified or in good standing or have such power or authority
would not, individually or in the aggregate, have a material adverse effect or would reasonably be expected to have a material
adverse effect on the assets, business, operations, earnings, properties, condition (financial or otherwise), prospects, stockholders’
equity or results of operations of the Company and the Subsidiaries taken as a whole, or prevent the consummation of the transactions
contemplated hereby (a “Material Adverse Effect”).


 






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g.
Subsidiaries. As of the date hereof, the Company’s only Subsidiaries are set forth on Schedule 6(g). The Company
owns directly or indirectly, all of the equity interests of the Subsidiaries free and clear of any lien, charge, security interest,
encumbrance, right of first refusal or other restriction, and all the equity interests of the Subsidiaries are validly issued
and are fully paid, nonassessable and free of preemptive and similar rights.


 


h.
No Violation or Default. Neither the Company nor any Subsidiary is (i) in violation of its charter or by-laws or similar
organizational documents; (ii) in default, and no event has occurred that, 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 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; or (iii)
in violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory
authority having jurisdiction over the Company, except, in the case of each of clauses (ii) and (iii) above, for any such violation
or default that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. To the
Company’s knowledge, no other party under any material contract or other agreement to which it or any Subsidiary is a party
is in default in any respect thereunder where such default would reasonably be expected to have a Material Adverse Effect.


 


i. No
Material Adverse Effect. Since the date of the most recent financial statements of the Company included or
incorporated by reference in the Registration Statement and Prospectus, there has not been (other than those noted below in
this paragraph) (i) any Material Adverse Effect, or any development involving a prospective Material Adverse Effect, in or
affecting the business, properties, management, condition (financial or otherwise), results of operations, or prospects of
the Company and the Subsidiaries taken as a whole, (ii) any transaction which is material to the Company and the Subsidiaries
taken as a whole, (iii) any obligation or liability, direct or contingent (including any off-balance sheet obligations),
incurred by the Company or the Subsidiaries, which is material to the Company and the Subsidiaries taken as a whole, (iv) any
material change in the capital stock (other than (A) the grant of additional options or other awards under or outside the
Company’s existing stock incentive plans, (B) changes in the number of outstanding shares of Common Stock of the
Company due to the issuance of shares upon the exercise or conversion of securities exercisable for, or convertible into,
Common Stock outstanding on the date hereof, (C) as a result of the issuance of Placement Shares, (D) any repurchases of
capital stock of the Company, (E) as described in a proxy statement filed on Schedule 14A or a Registration Statement on Form
S-4, or (F) otherwise publicly announced) or outstanding long-term indebtedness of the Company or the Subsidiaries or (v) any
dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, other than
in each case above (1) in the ordinary course of business. (2) as otherwise disclosed in the Registration Statement or
Prospectus or (3) where such matter, item, change, or development, individually or in the aggregate, would not make the
statements in the Registration Statement or the Prospectus contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements therein not misleading.


 






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j. Capitalization.
The issued and outstanding shares of capital stock of the Company have been validly issued, are fully paid and non-assessable
and, other than as disclosed in the Registration Statement or the Prospectus, are not subject to any preemptive rights,
rights of first refusal or similar rights. The Company has an authorized, issued and outstanding capitalization as set forth
in the Registration Statement and the Prospectus as of the dates referred to therein (other than (i) the grant of
additional options or other awards under the Company’s existing stock incentive plans, (ii) changes in the number of
outstanding Common Stock of the Company due to the issuance of shares upon the exercise or conversion of securities
exercisable for, or convertible into, Common Stock outstanding on the date hereof, (iii) as a result of the issuance of
Placement Shares, or (iv) any repurchases of capital stock of the Company) and such authorized capital stock conforms to the
description thereof set forth in the Registration Statement and the Prospectus. The description of the Common Stock in the
Registration Statement and the Prospectus is complete and accurate in all material respects. As of the date referred to
therein, the Company did not have material outstanding any options to purchase, or any rights or warrants to subscribe for,
or any securities or obligations convertible into, or exchangeable for, or any contracts or commitments to issue or sell, any
shares of capital stock or other securities.


 


k.
S-3 Eligibility. (i) At the time of filing the Registration Statement and (ii) at the time of the most recent amendment
thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective
amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), the Company met
the then applicable requirements for use of Form S-3 under the Securities Act, including compliance with General Instruction I.B.1
of Form S-3.


 


l. Authorization;
Enforceability. The Company has full legal right, power and authority to enter into this Agreement and perform the
transactions contemplated hereby. This Agreement has been duly authorized, executed and delivered by the Company and is
a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except to
the extent that (i) enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors’ rights generally and by general equitable principles and (ii) the indemnification and contribution
provisions of Section 11 hereof may be limited by federal or state securities laws and public policy considerations in
respect thereof.


 


m. Authorization
of Placement Shares. The Placement Shares, when issued and delivered pursuant to the terms approved by the board of
directors of the Company or a duly authorized committee thereof, or a duly authorized executive officer, against
payment therefor as provided herein, will be duly and validly authorized and issued and fully paid and nonassessable, free
and clear of any pledge, lien, encumbrance, security interest or other claim (other than any pledge, lien, encumbrance,
security interest or other claim arising from an act or omission of an Agent or a purchaser), including any statutory or
contractual preemptive rights, resale rights, rights of first refusal or other similar rights, and will be registered
pursuant to Section 12 of the Exchange Act. The Placement Shares, when issued, will conform in all material respects to the
description thereof set forth in or incorporated into the Prospectus.


 






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n.
No Consents Required. No consent, approval, authorization, order, registration or qualification of or with any court or
arbitrator or any governmental or regulatory authority having jurisdiction over the Company is required for the execution, delivery
and performance by the Company of this Agreement, and the issuance and sale by the Company of the Placement Shares as contemplated
hereby, except for the registration of the Placement Shares under the Securities Act and such consents, approvals, authorizations,
orders and registrations or qualifications as may be required under applicable state securities laws or by the by-laws and rules
of the Financial Industry Regulatory Authority (“FINRA”) or the Exchange, including any notices that may be
required by Exchange, in connection with the sale of the Placement Shares by the Agents.


 


o.
No Preferential Rights. (i) No person, as such term is defined in Rule 1-02 of Regulation S-X promulgated under the Securities
Act (each, a “Person”), has the right, contractual or otherwise, to cause the Company to issue or sell to such
Person any Common Stock or shares of any other capital stock or other securities of the Company (other than upon the exercise
of options or warrants to purchase Common Stock or upon the exercise of options that may be granted, or issuances of Common Stock
or other equity awards, from time to time under or outside of the Company’s stock incentive plans), (ii) no Person has any
preemptive rights, rights of first refusal, or any other rights (whether pursuant to a “poison pill” provision or
otherwise) to purchase any Common Stock or shares of any other capital stock or other securities of the Company from the Company
which have not been duly waived with respect to the offering contemplated hereby, (iii) no Person has the right to act as an underwriter
or as a financial advisor to the Company in connection with the offer and sale of the Common Stock as contemplated by this Agreement,
and (iv) no Person has the right, contractual or otherwise, to require the Company to register under the Securities Act any Common
Stock or shares of any other capital stock or other securities of the Company, or to include any such shares or other securities
in the Registration Statement or the offering contemplated thereby, whether as a result of the filing or effectiveness of the
Registration Statement or the sale of the Placement Shares as contemplated thereby or otherwise, except for those shares and securities
currently subject to registration statements on file with the Commission.


 


p.
Independent Public Accountant. GBH CPAs, PC (the “Accountant”), whose report on the consolidated financial
statements of the Company is filed with the Commission as part of the Company’s most recent Annual Report on Form 10-K filed
with the Commission and incorporated into the Registration Statement, are and, during the periods covered by their report, were
independent public accountants within the meaning of the Securities Act and the Public Company Accounting Oversight Board (United
States). To the Company’s knowledge the Accountant is not in violation of the auditor independence requirements of the Sarbanes-Oxley
Act of 2002 (the “Sarbanes-Oxley Act”) with respect to the Company.


 


q.
Enforceability of Agreements. All agreements between the Company and third parties expressly referenced in the Prospectus,
other than such agreements that have expired by their terms or whose termination is disclosed in documents filed by the Company
on EDGAR, are legal, valid and binding obligations of the Company enforceable in accordance with their respective terms, except
to the extent that (i) enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors’ rights generally and by general equitable principles and (ii) the indemnification provisions of certain agreements
may be limited by federal or state securities laws or public policy considerations in respect thereof, and except for any unenforceability
that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.


 






    	 	10	 



     


    

 


r.
No Litigation. There are no legal, governmental or regulatory actions, suits or proceedings pending, nor, to the Company’s
knowledge, any legal, governmental or regulatory investigations, to which the Company or a Subsidiary is a party or to which any
property of the Company or any Subsidiary is the subject that, individually or in the aggregate, if determined adversely to the
Company or any Subsidiary, would reasonably be expected to have a Material Adverse Effect or materially and adversely affect the
ability of the Company to perform its obligations under this Agreement; to the Company’s knowledge, no such actions, suits
or proceedings are threatened by any governmental or regulatory authority or threatened by others that, individually or in the
aggregate, if determined adversely to the Company or any Subsidiary, would reasonably be expected to have a Material Adverse Effect;
and there are no current or pending legal, governmental or regulatory actions, suits or proceedings or, to the knowledge of the
Company, investigations that are required under the Securities Act to be described in the Prospectus that are not described in
the Prospectus including any Incorporated Document.


 


s. Licenses
and Permits. The Company and the Subsidiaries possess or have obtained, all licenses, certificates, consents,
orders, approvals, permits and other authorizations issued by, and have made all declarations and filings with,
the appropriate federal, state, local or foreign governmental or regulatory authorities that are necessary for the ownership
or lease of their respective properties or the conduct of their respective businesses as described in the Registration
Statement and the Prospectus (the “Permits”), except where the failure to possess, obtain or make the same
would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Neither the Company
nor any Subsidiary has received written notice of any proceeding relating to revocation or modification of any such Permit or
has any reason to believe that such Permit will not be renewed in the ordinary course, except where the revocation,
modification or failure to obtain the renewal of any such Permit would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.


 


t.
No Material Defaults. Neither the Company nor any Subsidiary has defaulted on any installment on indebtedness for borrowed
money or on any rental on one or more long-term leases, which defaults, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect. The Company has not filed a report pursuant to Section 13(a) or 15(d) of the Exchange
Act since the filing of its last Annual Report on Form 10-K, indicating that it (i) has failed to pay any dividend or sinking
fund installment on preferred stock or (ii) has defaulted on any installment on indebtedness for borrowed money or on any rental
on one or more long-term leases, which defaults, individually or in the aggregate, would reasonably be expected to have a Material
Adverse Effect.


 






    	 	11	 



     


    

 


u.
Certain Market Activities. Neither the Company, nor any Subsidiary, nor to the Company’s knowledge any of their respective
directors, officers or controlling persons has taken, directly or indirectly, any action designed, or that has constituted or
would reasonably be expected to cause or result in, under the Exchange Act or otherwise, the stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale of the Placement Shares.


 


v.
Broker/Dealer Relationships. Neither the Company nor any Subsidiary or any related entities (i) is required to register
as a “broker” or “dealer” in accordance with the provisions of the Exchange Act or (ii) directly or indirectly
through one or more intermediaries, controls or is a “person associated with a member” or “associated person
of a member” (within the meaning set forth in the FINRA Manual).


 


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


 


x.
Taxes. The Company and the Subsidiaries have filed all federal, state, local and foreign tax returns which have been required
to be filed and paid all taxes shown thereon through the date hereof, to the extent that such taxes have become due and are not
being contested in good faith, except where the failure to do so would not reasonably be expected to have a Material Adverse Effect.
Except as otherwise disclosed in or contemplated by the Registration Statement or the Prospectus, no tax deficiency has been determined
adversely to the Company or any Subsidiary which has had, or would reasonably be expected to have, individually or in the aggregate,
a Material Adverse Effect. The Company has no knowledge of any federal, state or other governmental tax deficiency, penalty or
assessment which has been asserted or threatened against it which could have a Material Adverse Effect.


 


y.
Title to Real and Personal Property. The Company and the Subsidiaries have good and valid title in fee simple to all items
of real property and good and valid title to all personal property (excluding Intellectual Property which is addressed below)
described in the Registration Statement or Prospectus as being owned by them that are material to the businesses of the Company
or such Subsidiary, in each case free and clear of all liens, encumbrances and claims, except those that (i) do not materially
interfere with the use made and proposed to be made of such property by the Company and the Subsidiaries or (ii) would not reasonably
be expected, individually or in the aggregate, to have a Material Adverse Effect. Any real property described in the Registration
Statement or Prospectus as being leased by the Company and the Subsidiaries is held by them under valid, existing and enforceable
leases, except those that (A) do not materially interfere with the use made or proposed to be made of such property by the Company
or the Subsidiaries or (B) would not be reasonably expected, individually or in the aggregate, to have a Material Adverse Effect.


 


z.
Intellectual Property. To the Company’s knowledge, the Company and the Subsidiaries own or possess adequate enforceable
rights to use all patents, patent applications, trademarks (both registered and unregistered), service marks, trade names, trademark
registrations, service mark registrations, copyrights, licenses and know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures) (collectively, the “Intellectual Property”),
necessary for the conduct of their respective businesses as conducted as of the date hereof, except to the extent that the failure
to own or possess adequate rights to use such Intellectual Property would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect; the Company and the Subsidiaries have not received any written notice of any claim
of infringement or conflict which asserted Intellectual Property rights of others, which infringement or conflict, if the subject
of an unfavorable decision, would reasonably be expected to result in a Material Adverse Effect; there are no pending, or to the
Company’s knowledge, threatened judicial proceedings or interference proceedings against the Company or its Subsidiaries
challenging the Company’s or any of its Subsidiary’s rights in or to or the validity of the scope of any of the Company’s
or any Subsidiary’s patents, patent applications or proprietary information, except for such right or claim that would not,
individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect; to the Company’s knowledge
no other entity or individual has any right or claim in any of the Company’s or any of its Subsidiary’s patents, patent
applications or any patent to be issued therefrom by virtue of any contract, license or other agreement entered into between such
entity or individual and the Company or any Subsidiary or by any non-contractual obligation, other than by written licenses granted
by the Company or any Subsidiary, except for such right or claim that would not, individually or in the aggregate, reasonably
be expected to result in a Material Adverse Effect; the Company and the Subsidiaries have not received any written notice of any
claim challenging the rights of the Company or its Subsidiaries in or to any Intellectual Property owned, licensed or optioned
by the Company or any Subsidiary which claim, if the subject of an unfavorable decision would result in a Material Adverse Effect.


 






    	 	12	 



     


    

 


aa. Environmental
Laws. The Company and the Subsidiaries (i) are in compliance in all material respects with any and all
applicable federal, state, local and foreign laws, rules, regulations, decisions and orders relating to the protection of
human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants
(collectively, “Environmental Laws”); (ii) have received and are in compliance in all material respects
with all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their
respective businesses as described in the Registration Statement and the Prospectus; and (iii) have not received notice of
any actual or potential liability for the investigation or remediation of any disposal or release of hazardous or toxic
substances or wastes, pollutants or contaminants, except, in the case of any of clauses (i), (ii) or (iii) above, for any
such failure to comply or failure to receive required permits, licenses, other approvals or liability as would not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.


 


bb. Disclosure
Controls. The Company maintains systems of internal accounting controls designed to provide reasonable assurance that
(i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions
are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain
asset accountability; (iii) access to assets is permitted only in accordance with management’s general or
specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences. The Company is not aware of any material
weaknesses in its internal control over financial reporting (other than as set forth in the Registration Statement or the
Prospectus). Since the date of the latest audited financial statements of the Company included in the Prospectus, there has
been 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 (other than as set
forth in the Registration Statement or the Prospectus). The Company has established disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15 and 15d-15) for the Company and designed such disclosure controls and procedures to
ensure that material information relating to the Company and the Subsidiaries is made known to the certifying officers by
others within those entities, particularly during the period in which the Company’s Annual Report on Form 10-K or
Quarterly Report on Form 10-Q, as the case may be, is being prepared. The Company’s certifying officers have evaluated
the effectiveness of the Company’s controls and procedures as of a date within 90 days prior to the filing date of the
Form 10-K for the fiscal year most recently ended (such date, the “Evaluation Date”). The Company
presented in its Form 10-K for the fiscal year most recently ended the conclusions of the certifying officers about the
effectiveness of the disclosure controls and procedures based on their evaluations as of the most recent Evaluation Date.
Since the most recent Evaluation Date, there have been no significant changes in the Company’s internal controls (as
such term is defined in Item 307(b) of Regulation S-K under the Securities Act) or, to the Company’s knowledge, in
other factors that could significantly adversely affect the Company’s internal controls.


 






    	 	13	 



     


    

 


cc. Sarbanes-Oxley
Act. There is and has been no failure on the part of the Company or, to the knowledge of the Company, any of the
Company’s directors or officers, in their capacities as such, to comply with any applicable provisions of the
Sarbanes-Oxley Act and the rules and regulations promulgated thereunder. Each of the principal executive officer and the
principal financial officer of the Company (or each former principal executive officer of the Company and each former
principal financial officer of the Company as applicable) has made all certifications required by Sections 302 and 906 of the
Sarbanes-Oxley Act with respect to all reports, schedules, forms, statements and other documents required to be filed by it
or furnished by it to the Commission during the past 12 months. For purposes of the preceding sentence, “principal
executive officer” and “principal financial officer” shall have the meanings given to such terms in the
Exchange Act Rules 13a-15 and 15d-15.


 


dd.
Finder’s Fees. Neither the Company nor any Subsidiary has incurred any liability for any finder’s fees, brokerage
commissions or similar payments in connection with the transactions herein contemplated, except as may otherwise exist with respect
to the Agents pursuant to this Agreement.


 


ee. Labor
Disputes. No labor disturbance by or dispute with employees of the Company or any Subsidiary exists or, to the
knowledge of the Company, is threatened which would reasonably be expected to result in a Material Adverse Effect.


 


ff. Investment
Company Act. Neither the Company nor any Subsidiary is or, after giving effect to the offering and sale of the Placement
Shares, will be an “investment company” or an entity “controlled” by an “investment
company,” as such terms are defined in the Investment Company Act of 1940, as amended (the “Investment Company
Act”).


 


gg. Operations.
The operations of the Company and the Subsidiaries are and have been conducted at all times in compliance in all material
respects with applicable financial record keeping and reporting requirements of the Currency and Foreign
Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions to which the Company or
the Subsidiaries are subject, the rules and regulations thereunder and any related or similar rules, regulations or
guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money Laundering
Laws”), except as would not reasonably be expected to result in a Material Adverse Effect; and no action, suit or
proceeding by or before any court or governmental agency having jurisdiction over the Company, authority or body or any
arbitrator involving the Company or any Subsidiary with respect to the Money Laundering Laws is pending or, to the knowledge
of the Company, threatened.


 






    	 	14	 



     


    

 


hh. Off-Balance
Sheet Arrangements.There are no transactions, arrangements and other relationships between and/or among the Company,
and/or, to the knowledge of the Company, any of its affiliates and any unconsolidated entity, including, but not limited to,
any structured finance, special purpose or limited purpose entity (each, an “Off Balance Sheet
Transaction”) that could reasonably be expected to affect materially the Company’s liquidity or the
availability of or requirements for its capital resources, including those Off Balance Sheet Transactions described in the
Commission’s Statement about Management’s Discussion and Analysis of Financial Conditions and Results of
Operations (Release Nos. 33-8056; 34-45321; FR-61), required to be described in the Registration Statement or the Prospectus
which have not been described as required.


 


ii. Underwriter Agreements. The Company is not a party to any agreement with an agent or underwriter for any other “at
the market” or continuous equity transaction.


 


jj.
ERISA. To the knowledge of the Company, (i) each material employee benefit plan, within the meaning of Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), that is maintained, administered
or contributed to by the Company or any of its affiliates for employees or former employees of the Company and the Subsidiaries
has been maintained in material compliance with its terms and the requirements of any applicable statutes, orders, rules and regulations,
including but not limited to ERISA and the Internal Revenue Code of 1986, as amended (the “Code”); (ii) no
prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred which would result
in a material liability to the Company with respect to any such plan excluding transactions effected pursuant to a statutory or
administrative exemption; (iii) and for each such plan that is subject to the funding rules of Section 412 of the Code or Section
302 of ERISA, no “accumulated funding deficiency” as defined in Section 412 of the Code has been incurred, whether
or not waived, and the fair market value of the assets of each such plan (excluding for these purposes accrued but unpaid contributions)
equals or exceeds the present value of all benefits accrued under such plan determined using reasonable actuarial assumptions
other than, in the case of (i), (ii) and (iii) above, as would not reasonably be expected to have a Material Adverse Effect.


 


kk.
Forward-Looking Statements. No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section
21E of the Exchange Act) (a “Forward-Looking Statement”) contained in the Registration Statement and the Prospectus
has been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith. The Forward-Looking Statements
incorporated by reference in the Registration Statement and the Prospectus from the Company’s Annual Report on Form 10-K
for the fiscal year most recently ended (i) except for any Forward-Looking Statement included in any financial statements and
notes thereto, are within the coverage of the safe harbor for forward looking statements set forth in Section 27A of the Securities
Act, Rule 175(b) under the Securities Act or Rule 3b-6 under the Exchange Act, as applicable, (ii) were made by the Company with
a reasonable basis and in good faith and reflect the Company’s good faith commercially reasonable best estimate of the matters
described therein as of the respective dates on which such statements were made, and (iii) have been prepared in accordance with
Item 10 of Regulation S-K under the Securities Act.


 






    	 	15	 



     


    

 


ll.  
Margin Rules. Neither the issuance, sale and delivery of the Placement Shares nor the application of the proceeds thereof
by the Company as described in the Registration Statement and the Prospectus will violate Regulation T, U or X of the Board of
Governors of the Federal Reserve System.


 


mm. Insurance.
The Company and the Subsidiaries carry, or are covered by, insurance in such amounts and covering such risks as the Company
and the Subsidiaries reasonably believe are adequate for the conduct of their business and as is customary for companies of
similar size engaged in similar businesses in similar industries.


 


nn.
No Improper Practices. (i) Neither the Company nor, to the Company’s knowledge, the Subsidiaries, nor to the Company’s
knowledge, any of their respective executive officers has, in the past five years, made any unlawful contributions to any candidate
for any political office (or failed fully to disclose any contribution in violation of law) or made any contribution or other
payment to any official of, or candidate for, any federal, state, municipal, or foreign office or other person charged with similar
public or quasi-public duty in violation of any law or of the character required to be disclosed in the Prospectus; (ii) to the
Company’s knowledge no relationship, direct or indirect, exists between or among the Company or, to the Company’s
knowledge, the Subsidiaries or any affiliate of any of them, on the one hand, and the directors, officers and stockholders of
the Company or, the Subsidiaries, on the other hand, that is required by the Securities Act to be described in the Registration
Statement and the Prospectus that is not so described; (iii) to the Company’s knowledge no relationship, direct or indirect,
exists between or among the Company or the Subsidiaries or any affiliate of them, on the one hand, and the directors, officers,
stockholders or directors of the Company or, the Subsidiaries, on the other hand, that is required by the rules of FINRA to be
described in the Registration Statement and the Prospectus that is not so described; (iv) there are no material outstanding loans
or advances or material guarantees of indebtedness by the Company or, to the Company’s knowledge, the Subsidiaries to or
for the benefit of any of their respective officers or directors or any of the members of the families of any of them; and (v)
to the Company’s knowledge the Company has not offered, or caused any placement agent to offer, Common Stock to any person
with the intent to influence unlawfully (A) a customer or supplier of the Company or the Subsidiaries to alter the customer’s
or supplier’s level or type of business with the Company or the Subsidiaries or (B) a trade journalist or publication to
write or publish favorable information about the Company or the Subsidiaries or any of their respective products or services,
and, (vi) neither the Company nor the Subsidiaries nor, to the Company’s knowledge, any employee or agent of the Company
or the Subsidiaries has made any payment of funds of the Company or the Subsidiaries or received or retained any funds in violation
of any law, rule or regulation (including, without limitation, the Foreign Corrupt Practices Act of 1977), which payment, receipt
or retention of funds is of a character required to be disclosed in the Registration Statement or the Prospectus.


 






    	 	16	 



     


    

 


oo.
[Reserved]


 


pp.
No Misstatement or Omission in an Issuer Free Writing Prospectus. Each Issuer Free Writing Prospectus, as of its issue
date and as of each Applicable Time (as defined in Section 25 below), did not, does not and will not include any information
that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including
any incorporated document deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not
apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information
furnished to the Company by an Agent specifically for use therein.


 


qq.
No Conflicts. Neither the execution of this Agreement, nor the issuance, offering or sale of the Placement Shares, nor
the consummation of any of the transactions contemplated herein and therein, nor the compliance by the Company with the terms
and provisions hereof and thereof will conflict with, or will result in a breach of, any of the terms and provisions of, or has
constituted or will constitute a default under, or has resulted in or will result in the creation or imposition of any lien, charge
or encumbrance upon any property or assets of the Company pursuant to the terms of any contract or other agreement to which the
Company is a party or to which any of the property or assets of the Company is subject, except (i) such conflicts, breaches or
defaults as may have been waived and (ii) such conflicts, breaches and defaults that would not reasonably be expected to have
a Material Adverse Effect; nor will such action result (x) in any violation of the provisions of the organizational or governing
documents of the Company, or (y) in any material violation of the provisions of any statute or any order, rule or regulation applicable
to the Company or of any court or of any federal, state or other regulatory authority or other government body having jurisdiction
over the Company, except where such violation would not reasonably be expected to have a Material Adverse Effect.


 


rr.
Compliance with Applicable Laws. The Company and the Subsidiaries: (A) are and at all times have been in compliance with
all statutes, rules and regulations applicable to the ownership, testing, development, manufacture, packaging, processing, use,
distribution, marketing, labeling, promotion, sale, offer for sale, storage, import, export or disposal of any product under development,
manufactured or distributed by the Company or the Subsidiaries (“Applicable Laws”) except where the failure
to be so in compliance would not reasonably be expected to result in a Material Adverse Effect, (b) have not received any Form
483 from the FDA, notice of adverse finding, warning letter, or other written correspondence or notice from the FDA, the European
Medicines Agency (the “EMA”), or any other federal, state, local or foreign governmental or regulatory authority
alleging or asserting material noncompliance with any Applicable Laws or any licenses, certificates, approvals, clearances, authorizations,
permits and supplements or amendments thereto required by any such Applicable Laws (“Authorizations”), which
would, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect; (C) possess all material
Authorizations for the Company’s current state of product development as disclosed in the Registration Statement, and such
Authorizations are valid and in full force and effect and neither the Company nor the Subsidiaries is in material violation of
any term of any such Authorizations; (D) have not received written notice of any claim, action, suit, proceeding, hearing, enforcement,
investigation, arbitration or other action from the FDA, the EMA, or any other federal, state, local or foreign governmental or
regulatory authority or third party alleging that any Company product, operation or activity is in material violation of any Applicable
Laws or Authorizations and has no knowledge that the FDA, the EMA, or any other federal, state, local or foreign governmental
or regulatory authority or third party is considering any such claim, litigation, arbitration, action, suit, investigation or
proceeding against the Company; (E) have not received notice that the FDA, EMA, or any other federal, state, local or foreign
governmental or regulatory authority has taken, is taking or intends to take action to limit, suspend, modify or revoke any material
Authorizations and has no knowledge that the FDA, EMA, or any other federal, state, local or foreign governmental or regulatory
authority is considering such action; and (F) have filed, obtained, maintained or submitted all reports, documents, forms, notices,
applications, records, claims, submissions and supplements or amendments as required by any Applicable Laws or Authorizations
for the Company’s current state of product development as disclosed in the registration Statement, except where the failure
to file such reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments would
not result in a Material Adverse Effect, and that all such reports, documents, forms, notices, applications, records, claims,
submissions and supplements or amendments were materially complete and correct on the date filed (or were corrected or supplemented
by a subsequent submission).


 






    	 	17	 



     


    

 


ss.
Clinical Studies. All animal and other preclinical studies and clinical trials conducted by the Company or to the Company’s
knowledge on behalf of the Company were, and, if still pending are, to the Company’s knowledge, being conducted in all material
respects in compliance with all Applicable Laws and in accordance with experimental protocols, procedures and controls generally
used by qualified experts in the preclinical study and clinical trials of new drugs and biologics as applied to comparable products
to those being developed by the Company; the descriptions of the results of such preclinical studies and clinical trials contained
in the Registration Statement and the Prospectus are accurate in all material respects, and, except as set forth in the Registration
Statement and the Prospectus, the Company has no knowledge of any other clinical trials or preclinical studies, the results of
which reasonably call into question the clinical trial or preclinical study results described or referred to in the Registration
Statement and the Prospectus when viewed in the context in which such results are described; and the Company has not received
any written notices or correspondence from the FDA, the EMA, or any other domestic or foreign governmental agency requiring the
termination or suspension of any preclinical studies or clinical trials conducted by or on behalf of the Company that are described
in the Registration Statement and the Prospectus or the results of which are referred to in the Registration Statement and the
Prospectus.


 


tt.
Compliance Program. The Company has taken such steps as the Company, believes are reasonable and appropriate to comply
in all material respects with applicable regulatory guidelines (including, without limitation, those administered by the FDA,
the EMA, and any other foreign, federal, state or local governmental or regulatory authority performing functions similar to those
performed by the FDA or EMA); except where such noncompliance would not reasonably be expected to have a Material Adverse Effect.


 






    	 	18	 



     


    

 


uu.
OFAC.


 


(i)
The Company represents that, neither the Company nor any Subsidiary (collectively, the “Entity”) or to
the Company’s knowledge any director, officer, employee, agent, affiliate or representative of the Entity, is a
government, individual, or entity (in this paragraph (ss), “Person”) that is, or is owned or controlled by
a Person that is:


 


(a) the subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control
(“OFAC”), the United Nations Security Council (“UNSC”), the European Union (“EU”),
Her Majesty’s Treasury (“HMT”), or other relevant sanctions authority (collectively, “Sanctions”),
nor


 


(b)
located, organized or resident in a country or territory that is the subject of Sanctions.


 


(ii)
The Company represents and covenants that it will not, directly or indirectly, knowingly use the proceeds of the offering, or
knowingly lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner or other Person:


 


(a)
to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of
such funding or facilitation, is the subject of Sanctions; or


 


(b)
in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the
offering, whether as underwriter, advisor, investor or otherwise).


 


(iii)
The Company represents and covenants that, except as detailed in the Prospectus, for the past 5 years, it has not knowingly engaged
in, is not now knowingly engaged in, and will not knowingly engage in, any dealings or transactions with any Person, or in any
country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.


 


vv.
Stock Transfer Taxes. On each Settlement Date, all stock transfer or other taxes (other than income taxes) which are required
to be paid in connection with the sale and transfer of the Placement Shares to be sold hereunder will be, or will have been, fully
paid or provided for by the Company and all laws imposing such taxes will be or will have been fully complied with by the Company.


 


Any
certificate in the form of Exhibit 7(l) signed by an officer of the Company and delivered to the Agents or to counsel for the
Agents pursuant to or in connection with this Agreement shall be deemed to be a representation and warranty by the Company, as
applicable, to the Agents as to the matters set forth therein.


 






    	 	19	 



     


    

 


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


 


a.
Registration Statement Amendments. After the date of this Agreement and during any period in which a prospectus relating
to any Placement Shares is required to be delivered by the Agents under the Securities Act (including in circumstances where such
requirement may be satisfied pursuant to Rule 172 under the Securities Act) (the “Prospectus Delivery Period”)
(i) the Company will notify the Agents promptly of the time when any subsequent amendment to the Registration Statement, other
than documents incorporated by reference or amendments not related to any Placement, has been filed with the Commission and/or
has become effective or any subsequent supplement to the Prospectus, other than documents incorporated by reference, has been
filed and of any request by the Commission for any amendment or supplement to the Registration Statement or Prospectus related
to the Placement or for additional information related to the Placement, (ii) the Company will prepare and file with the Commission,
promptly upon any Agent’s request, any amendments or supplements to the Registration Statement or Prospectus that, in such
Agent’s reasonable opinion, may be necessary or advisable in connection with the distribution of the Placement Shares by
the Agents (provided, however, that the failure of the Agents to make such request shall not relieve the Company of any
obligation or liability hereunder, or affect the Agents’ right to rely on the representations and warranties made by the
Company in this Agreement and provided, further, that the only remedy the Agents shall have with respect to the failure to make
such filing shall be to cease making sales under this Agreement until such amendment or supplement is filed); and (iii) the Company
will cause each amendment or supplement to the Prospectus to be filed with the Commission as required pursuant to the applicable
paragraph of Rule 424(b) of the Securities Act or, in the case of any document to be incorporated therein by reference, to be
filed with the Commission as required pursuant to the Exchange Act, within the time period prescribed (the determination to file
or not file any amendment or supplement with the Commission under this Section 7(a), based on the Company’s reasonable
opinion or reasonable objections, shall be made exclusively by the Company). Notwithstanding the foregoing, the Company will not
file any amendment or supplement to the Registration Statement or Prospectus, other than documents incorporated by reference,
relating to the Placement Shares or a security convertible into the Placement Shares unless a copy thereof has been submitted
to the Agents within a reasonable period of time before the filing and the Agents have not reasonably and in good faith objected
thereto (provided, however, that (A) the failure of the Agents to make such objection shall not relieve the Company of
any obligation or liability hereunder, or affect the Agents’ right to rely on the representations and warranties made by
the Company in this Agreement and (B) the Company has no obligation to provide the Agents any advance copy of such filing or to
provide the Agents an opportunity to object to such filing if the filing does not name the Agents or does not relate to the transaction
herein provided; and provided, further, that the only remedy the Agents shall have with respect to the failure by the Company
to obtain such consent shall be to cease making sales under this Agreement) and the Company will furnish to the Agents at the
time of filing thereof a copy of any document that upon filing is deemed to be incorporated by reference into the Registration
Statement or Prospectus, except for those documents available via EDGAR.


 


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


 






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c.
Delivery of Prospectus; Subsequent Changes. During the Prospectus Delivery Period, the Company will use its commercially
reasonably efforts to comply in all material respects with all requirements imposed upon it by the Securities Act, as from time
to time in force, and to file on or before their respective due dates all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14, 15(d) or any other provision of
or under the Exchange Act. If the Company has omitted any information from the Registration Statement pursuant to Rule 430A under
the Securities Act, it will use its commercially reasonable efforts to comply with the provisions of and make all requisite filings
with the Commission pursuant to said Rule 430A and to notify the Agents promptly of all such filings. If during the Prospectus
Delivery Period any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement
of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances
then existing, not misleading, or if during such Prospectus Delivery Period it is necessary to amend or supplement the Registration
Statement or Prospectus to comply with the Securities Act, the Company will promptly notify the Designated Agent to suspend the
offering of Placement Shares during such period and the Company will promptly amend or supplement the Registration Statement or
Prospectus (at the expense of the Company) so as to correct such statement or omission or effect such compliance; provided,
however, that the Company may delay the filing of any amendment or supplement, if in the judgment of the Company, it is in
the best interest of the Company.


 


d. Listing
of Placement Shares. During the Prospectus Delivery Period, the Company will use its commercially reasonable efforts to
cause the Placement Shares to be listed on the Exchange and to qualify the Placement Shares for sale under the securities
laws of such jurisdictions in the United States as the Agents reasonably designates and to continue such qualifications in
effect so long as required for the distribution of the Placement Shares; provided, however, that the Company shall not
be required in connection therewith to qualify as a foreign corporation or dealer in securities or file a general consent to
service of process in any jurisdiction.


 


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


 






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f. Earnings
Statement. The Company will make generally available to its shareholders as soon as practicable, but in any event not
later than 15 months after the end of the Company’s current fiscal year-end, an earnings statement covering a
12-month period that satisfies the provisions of Section 11(a) and Rule 158 of the Securities Act.


 


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


 


h.
Notice of Other Sales. Without the prior written consent of the Agents, the Company will not, directly or indirectly, offer
to sell, sell, contract to sell, grant any option to sell or otherwise dispose of any Common Stock (other than the Placement Shares
offered pursuant to this Agreement) or securities convertible into or exchangeable for Common Stock, warrants or any rights to
purchase or acquire, Common Stock during the period beginning on the date on which any Placement Notice is delivered to the Agents
hereunder and ending on the third (3rd) Trading Day immediately following the final Settlement Date with respect to Placement
Shares sold pursuant to such Placement Notice (or, if the Placement Notice has been terminated or suspended prior to the sale
of all Placement Shares covered by a Placement Notice, the date of such suspension or termination); and will not directly or indirectly
in any other “at the market” or continuous equity transaction offer to sell, sell, contract to sell, grant any option
to sell or otherwise dispose of any Common Stock (other than the Placement Shares offered pursuant to this Agreement) or securities
convertible into or exchangeable for Common Stock, warrants or any rights to purchase or acquire, Common Stock prior to the termination
of this Agreement; provided, however, that such restrictions will not be required in connection with the Company’s
issuance or sale of (i) Common Stock, options to purchase Common Stock or Common Stock issuable upon the exercise of options or
other equity awards, pursuant to any employee or director stock incentive or benefits plan or agreement, stock ownership plan
or dividend reinvestment plan (but not Common Stock subject to a waiver to exceed plan limits in its dividend reinvestment plan)
of the Company whether now in effect or hereafter implemented; (ii) Common Stock issuable upon conversion of securities or the
exercise of warrants, options or other rights in effect or outstanding, and disclosed in filings by the Company available on EDGAR
or otherwise in writing to the Agents, and (iii) Common Stock, or securities convertible into or exercisable for Common Stock,
offered and sold in a privately negotiated transaction to vendors, customers, strategic partners or potential strategic partners
or other investors conducted in a manner so as not to be integrated with the offering of Common Stock hereby.


 


i. Change
of Circumstances. The Company will, at any time during the pendency of a Placement Notice advise the Agents
promptly after it shall have received notice or obtained knowledge thereof, of any information or fact that would alter or
affect in any material respect any opinion, certificate, letter or other document required to be provided to the Agents
pursuant to this Agreement.


 


j. Due
Diligence Cooperation. During the term of this Agreement, the Company will cooperate with any reasonable due
diligence review conducted by the Agents or their representatives in connection with the transactions contemplated hereby,
including, without limitation, providing information and making available documents and senior corporate officers, during
regular business hours and at the Company’s principal offices, as the Agents may reasonably request.


 






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k.
Required Filings Relating to Placement of Placement Shares. The Company agrees that on such dates as the Securities Act
shall require, the Company will (i) file a prospectus supplement with the Commission under the applicable paragraph of Rule 424(b)
under the Securities Act (each and every filing under Rule 424(b), a “Filing Date”), which prospectus supplement
will set forth, within the relevant period, the amount of Placement Shares sold through the Agents, the Net Proceeds to the Company
and the compensation payable by the Company to the Agents with respect to such Placement Shares or, if any such prospectus supplement
is not filed pursuant to Rule 424(b), otherwise include such information in the Company’s Exchange Act filings on such date
as shall be required, and (ii) deliver such number of copies of each such prospectus supplement to each exchange or market on
which such sales were effected as may be required by the rules or regulations of such exchange or market.


 


l. Representation
Dates; Certificate. Each time during the term of this Agreement that the Company:


 


(i)
amends or supplements (other than a prospectus supplement relating solely to an offering of securities other than the
Placement Shares) the Registration Statement or the Prospectus relating to the Placement Shares by means of a post-effective
amendment, sticker, or supplement but not by means of incorporation of documents by reference into the Registration Statement
or the Prospectus relating to the Placement Shares;


 


(ii)
files an annual report on Form 10-K under the Exchange Act (including any Form 10-K/A containing amended financial
information or a material amendment to the previously filed Form 10-K);


 


(iii)
files its quarterly reports on Form 10-Q under the Exchange Act; or


 


(iv)
files a current report on Form 8-K containing amended financial information (other than information
“furnished” pursuant to Items 2.02 or 7.01 of Form 8-K or to provide disclosure pursuant to Item 8.01 of Form 8-K
relating to the reclassification of certain properties as discontinued operations in accordance with Statement of Financial
Accounting Standards No. 144) under the Exchange Act;


 


(Each
date of filing of one or more of the documents referred to in clauses (i) through (iv) shall be a “Representation Date.”)


 


the
Company shall furnish the Agents (but in the case of clause (iv) above only if any Agent reasonably determines that the information
contained in such Form 8-K is material) with a certificate, in the form attached hereto as Exhibit 7(1). The requirement
to provide a certificate under this Section 7(1) shall be waived for any Representation Date occurring at a time at which
no Placement Notice is pending, which waiver shall continue until the earlier to occur of the date the Company delivers a Placement
Notice hereunder (which for such calendar quarter shall be considered a Representation Date) and the next occurring Representation
Date on which the Company files its annual report on Form 10-K. Notwithstanding the foregoing, (i) upon the delivery of the first
Placement Notice hereunder and (ii) if the Company subsequently decides to sell Placement Shares following a Representation Date
when the Company relied on such waiver and did not provide the Agents with a certificate under this Section 7(1), then
before the Agents sell any Placement Shares, the Company shall provide the Agents with a certificate, in the form attached hereto
as Exhibit 7(1), dated the date of the Placement Notice.


 






    	 	23	 



     


    

 


m.
Legal Opinion. On or prior to the date of the first Placement Notice given hereunder the Company shall cause to be furnished
to the Agents written opinions and a negative assurance letter of The Matt Law Firm, PLLC (“Company Counsel”),
or other counsel reasonably satisfactory to the Agents, in the form attached hereto as Exhibit 7(m)(1) and 7(m)(2), respectively.
Thereafter, within five (5) Trading Days of each Representation Date with respect to which the Company is obligated to deliver
a certificate in the form attached hereto as Exhibit 7(l) for which no waiver is applicable, the Company shall cause to be furnished
to the Agents a written letter of Company Counsel in the form attached hereto as Exhibit 7(m)(2), modified, as necessary, to relate
to the Registration Statement and the Prospectus as then amended or supplemented; provided that, in lieu of such negative
assurance for subsequent periodic filings under the Exchange Act, counsel may furnish the Agents with a letter (a “Reliance
Letter”) to the effect that the Agents may rely on the negative assurance letter previously delivered under this Section
7(m) to the same extent as if it were dated the date of such letter (except that statements in such prior letter shall be deemed
to relate to the Registration Statement and the Prospectus as amended or supplemented as of the date of the Reliance Letter).


 


n.
Comfort Letter. On or prior to the date of the first Placement Notice given hereunder and within five (5) Trading Days
after each subsequent Representation Date, other than pursuant to Section 7(l)(iii), the Company shall cause its independent
accountants to furnish the Agents letters (the “Comfort Letters”), dated the date the Comfort Letter is delivered,
which shall meet the requirements set forth in this Section 7(n); provided, that if requested by an Agent, the Company
shall cause a Comfort Letter to be furnished to the Agents within ten (10) Trading Days of such request following the date of
occurrence of any restatement of the Company’s financial statements. The Comfort Letter from the Company’s independent
accountants shall be in a form and substance reasonably satisfactory to the Agents, (i) confirming that they are an independent
public accounting firm within the meaning of the Securities Act and the PCAOB, (ii) stating, as of such date, the conclusions
and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’
“comfort letters” to underwriters in connection with registered public offerings (the first such letter, the “Initial
Comfort Letter”) and (iii) updating the Initial Comfort Letter with any information that would have been included in
the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement and
the Prospectus, as amended and supplemented to the date of such letter.


 


o.
Market Activities. The Company will not, directly or indirectly, (i) take any action designed to cause or result in, or
that constitutes or would reasonably be expected to constitute, the stabilization or manipulation of the price of any security
of the Company to facilitate the sale or resale of Placement Shares or (ii) sell, bid for, or purchase Common Stock in violation
of Regulation M, or pay anyone any compensation for soliciting purchases of the Placement Shares other than the Agents.


 






    	 	24	 



     


    

 


p.
Investment Company Act. The Company will conduct its affairs in such a manner so as to reasonably ensure that neither it
nor the Subsidiaries will be or become, at any time prior to the termination of this Agreement, an “investment company,”
as such term is defined in the Investment Company Act.


 


q.
No Offer to Sell. Other than an Issuer Free Writing Prospectus approved in advance by the Company and the Agents in their
capacity as agents hereunder pursuant to Section 23, neither the Agents nor the Company (including its agents and representatives,
other than the Agents in their capacity as such) will make, use, prepare, authorize, approve or refer to any written communication
(as defined in Rule 405), required to be filed with the Commission, that constitutes an offer to sell or solicitation of an offer
to buy Placement Shares hereunder.


 


r. Sarbanes-Oxley
Act. The Company will maintain and keep accurate books and records reflecting its assets and maintain internal accounting
controls in a manner designed to provide reasonable assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in accordance with GAAP and including those policies and
procedures that (i) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the
transactions and dispositions of the assets of the Company, (ii) provide reasonable assurance that transactions are recorded
as necessary to permit the preparation of the Company’s consolidated financial statements in accordance with GAAP,
(iii) that receipts and expenditures of the Company are being made only in accordance with management’s and the
Company’s directors’ authorization, and (iv) provide reasonable assurance regarding prevention or timely
detection of unauthorized acquisition, use or disposition of the Company’s assets that could have a material effect on
its financial statements. The Company will maintain such controls and other procedures, including, without limitation, those
required by Sections 302 and 906 of the Sarbanes-Oxley Act, and the applicable regulations thereunder that are designed to
ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange
Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and
forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by
the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the
Company’s management, including its principal executive officer and principal financial officer, or persons performing
similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material
information relating to the Company or the Subsidiaries is made known to them by others within those entities,
particularly during the period in which such periodic reports are being prepared.


 


8.
Representations and Covenants of the Agents. Each of the Agents represents and warrants that it is duly registered as a
broker-dealer under FINRA, the Exchange Act and the applicable statutes and regulations of each state in which the Placement Shares
will be offered and sold, except such states in which such Agent is exempt from registration or such registration is not otherwise
required. Each of the Agents shall continue, for the term of this Agreement, to be duly registered as a broker-dealer under FINRA,
the Exchange Act and the applicable statutes and regulations of each state in which the Placement Shares will be offered and sold,
except such states in which such Agent is exempt from registration or such registration is not otherwise required, during the
term of this Agreement. Each of the Agents shall comply with all applicable law and regulations in connection with the transactions
contemplated by this Agreement, including the issuance and sale through the Agents of the Placement Shares.


 






    	 	25	 



     


    

 


9.
Payment of Expenses. The Company will pay all expenses incident to the performance of its obligations under this Agreement,
including (i) the preparation, filing, including any fees required by the Commission, and printing of the Registration Statement
(including financial statements and exhibits) as originally filed and of each amendment and supplement thereto and each Free Writing
Prospectus, in such number as the Agents shall deem reasonably necessary, (ii) the printing and delivery to the Agents of this
Agreement and such other documents as may be reasonably required in connection with the offering, purchase, sale, issuance or
delivery of the Placement Shares, (iii) the preparation, issuance and delivery of the certificates, if any, for the Placement
Shares to the Agents, including any stock or other transfer taxes and any capital duties, stamp duties or other duties or taxes
payable upon the sale, issuance or delivery of the Placement Shares to the Agents, (iv) the fees and disbursements of the counsel,
accountants and other advisors to the Company, (v) the reasonable fees and disbursements of counsel to the Agents up to a maximum
of $15,000; (vi) the fees and expenses of the transfer agent and registrar for the Common Stock, (vii) the filing fees incident
to any review by FINRA of the terms of the sale of the Placement Shares, and (viii) the fees and expenses incurred in connection
with the listing of the Placement Shares on the Exchange.


 


10.
Conditions to the Agents’ Obligations. The obligations of the Agents hereunder with respect to a Placement will be
subject to the continuing accuracy and completeness of the representations and warranties made by the Company herein, to the due
performance by the Company of its obligations hereunder, to the completion by the Agents of a due diligence review satisfactory
to it in its reasonable judgment, and to the continuing satisfaction (or waiver by the Agents in their sole discretion) of the
following additional conditions:


 


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


 


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


 






    	 	26	 



     


    

 


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


 


d.
Material Changes. Except as contemplated in the Prospectus, or disclosed in the Company’s reports filed with the
Commission, there shall not have been any Material Adverse Effect, or any development that could reasonably be expected to cause
a Material Adverse Effect in each case is so material as to make it impracticable or inadvisable to proceed with the offering
of the Placement Shares on the terms and in the manner contemplated in the Prospectus.


 


e. Legal
Opinion. The Agents shall have received the opinions and negative assurances of Company Counsel required to be
delivered pursuant Section 7(m) on or before the date on which such delivery of such opinions are required pursuant to Section
7(m).


 


f. Comfort
Letter. The Agents shall have received the Comfort Letter required to be delivered pursuant Section 7(n) on or
before the date on which such delivery of such letter is required pursuant to Section 7(n).


 


g. Representation
Certificate. The Agents shall have received the certificate required to be delivered pursuant to Section 7(1) on
or before the date on which delivery of such certificate is required pursuant to Section 7(1).


 


h.
Secretary’s Certificate. On or prior to the first Representation Date, the Agents shall have received a certificate,
signed on behalf of the Company by its corporate Secretary, in form and substance reasonably satisfactory to the Agents and their
counsel.


 


i. No
Suspension. Trading in the Common Stock shall not have been suspended on the Exchange and the Common Stock shall not have
been delisted from the Exchange.


 


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


 


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


 






    	 	27	 



     


    

 


l. Approval
for Listing. The Placement Shares shall either have been approved for listing on the Exchange, subject only to notice of
issuance, or the Company shall have filed an application for listing of the Placement Shares on the Exchange at, or prior to,
the issuance of any Placement Notice.


 


m. No
Termination Event. There shall not have occurred any event that would permit the Agents to terminate this
Agreement pursuant to Section 13(a).


 


11.
Indemnification and Contribution.


 


(a) Company
Indemnification. The Company agrees to indemnify and hold harmless the Agents, their partners, members,
directors, officers, employees and agents and each person, if any, who controls the Agents within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act as follows:


 


(i)
against any and all loss, liability, claim, damage and expense whatsoever, as incurred, joint or several, arising out of or
based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or
any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading, or arising out of any untrue statement or alleged untrue statement
of a material fact included in any related Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading;


 


(ii)
against any and all loss, liability, claim, damage and expense whatsoever, as incurred, joint or several, to the extent of
the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section 11(d) below) any such settlement is effected
with the written consent of the Company, which consent shall not unreasonably be delayed or withheld; and


 


(iii)
against any and all expense whatsoever, as incurred (including the reasonable documented fees and disbursements of counsel),
reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii)
above,


 


provided,
however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising
out of any untrue statement or omission or alleged untrue statement or omission made solely in reliance upon and in conformity
with written information furnished to the Company by an Agent expressly for use in the Registration Statement (or any amendment
thereto), or in any related Issuer Free Writing Prospectus or the Prospectus (or any amendment thereto).


 






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(b) Agent
Indemnification. Each Agent agrees to indemnify and hold harmless the Company and its directors and each officer of the Company
who signed the Registration Statement, and each person, if any, who (i) controls the Company within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act or (ii) is controlled by or is under common control with the Company against
any and all loss, liability, claim, damage and expense described in the indemnity contained in Section 11(a), as incurred,
but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement
(or any amendments thereto) or in any related Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with information relating to such Agent and furnished to the Company in writing by
such Agent expressly for use therein.


 


(c) Procedure. Any
party that proposes to assert the right to be indemnified under this Section 11 will, promptly after receipt of notice
of commencement of any action against such party in respect of which a claim is to be made against an indemnifying party or
parties under this Section 11, notify each such indemnifying party of the commencement of such action, enclosing a
copy of all papers served, but the omission so to notify such indemnifying party will not relieve the indemnifying party from
(i) any liability that it might have to any indemnified party otherwise than under this Section 11 and (ii) any
liability that it may have to any indemnified party under the foregoing provision of this Section 11 unless, and only
to the extent that, such omission results in the forfeiture of substantive rights or defenses by the indemnifying party. If
any such action is brought against any indemnified party and it notifies the indemnifying party of its commencement, the
indemnifying party will be entitled to participate in and, to the extent that it elects by delivering written notice to the
indemnified party promptly after receiving notice of the commencement of the action from the indemnified party, jointly with
any other indemnifying party similarly notified, to assume the defense of the action, with counsel reasonably satisfactory to
the indemnified party, and after notice from the indemnifying party to the indemnified party of its election to assume the
defense, the indemnifying party will not be liable to the indemnified party for any legal or other expenses except as
provided below and except for the reasonable costs of investigation subsequently incurred by the indemnified party in
connection with the defense. The indemnified party will have the right to employ its own counsel in any such action, but the
fees, expenses and other charges of such counsel will be at the expense of such indemnified party unless (1) the employment
of counsel by the indemnified party has been authorized in writing by the indemnifying party, (2) the indemnified party has
reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other indemnified
parties that are different from or in addition to those available to the indemnifying party, (3) a conflict or potential
conflict exists (based on advice of counsel to the indemnified party) between the indemnified party and the
indemnifying party (in which case the indemnifying party will not have the right to direct the defense of such action on
behalf of the indemnified party) or (4) the indemnifying party has not in fact employed counsel to assume the defense of such
action within a reasonable time after receiving notice of the commencement of the action, in each of which cases the
reasonable fees, disbursements and other charges of counsel will be at the expense of the indemnifying party or parties. It
is understood that the indemnifying party or parties shall not, in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm
admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees,
disbursements and other charges will be reimbursed by the indemnifying party promptly after the indemnifying party receives a
written invoice relating to fees, disbursements and other charges in reasonable detail. An indemnifying party will not, in
any event, be liable for any settlement of any action or claim effected without its written consent. No indemnifying party
shall, without the prior written consent of each indemnified party, settle or compromise or consent to the entry of any
judgment in any pending or threatened claim, action or proceeding relating to the matters contemplated by this Section
11 (whether or not any indemnified party is a party thereto), unless such settlement, compromise or consent (1) includes
an unconditional release of each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (2) 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.


 






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


 






    	 	30	 



     


    

 


12.
Representations and Agreements to Survive Delivery. The indemnity and contribution agreements contained in Section 11 of
this Agreement and all representations and warranties of the Company and the Agents herein or in certificates delivered pursuant
hereto shall survive, as of their respective dates, regardless of (i) any investigation made by or on behalf of the Agents, any
controlling persons, or the Company (or any of their respective officers, directors or controlling persons), (ii) delivery and
acceptance of the Placement Shares and payment therefor or (iii) any termination of this Agreement.


 


13.
Termination.


 


a.
An Agent may terminate this Agreement, written by notice to the Company, as hereinafter specified at any time (1) if there has
been, since the time of execution of this Agreement or since the date as of which information is given in the Prospectus, any
Material Adverse Effect, or any development that is reasonably likely to have a Material Adverse Effect or, in the reasonable
judgment of such Agent, is material and adverse and makes it impractical or inadvisable to market the Placement Shares or to enforce
contracts for the sale of the Placement Shares, (2) if there has occurred any material adverse change in the financial markets
in the United States or the international financial markets, any outbreak of hostilities or escalation thereof or other calamity
or crisis or any change or development involving a prospective change in national or international political, financial or economic
conditions, in each case the effect of which is such as to make it, in the reasonable and good faith judgment of such Agent, impracticable
or inadvisable to market the Placement Shares or to enforce contracts for the sale of the Placement Shares, (3) if trading in
the Common Stock has been suspended or limited by the Commission or the Exchange, or if trading generally on the Exchange has
been suspended or limited, or minimum prices for trading have been fixed on the Exchange, (4) if any suspension of trading of
any securities of the Company on any exchange or in the over-the-counter market shall have occurred and be continuing for a period
of at least 10 days, (5) if a major disruption of securities settlements or clearance services in the United States shall have
occurred and be continuing, or (6) if a banking moratorium has been declared by either U.S. Federal or New York authorities. Any
such termination shall be without liability of any party to any other party except that the provisions of Section 9 (Payment
of Expenses), Section 11 (Indemnification and Contribution), Section 12 (Representations and Agreements to Survive
Delivery), Section 18 (Governing Law and Time; Waiver of Jury Trial) and Section 19 (Consent to Jurisdiction) hereof
shall remain in full force and effect notwithstanding such termination. If an Agent elects to terminate this Agreement as provided
in this Section 13(a), such Agent shall provide the required notice as specified in Section 14 (Notices).


 






    	 	31	 



     


    

 


b.
The Company shall have the right, by giving ten (10) days notice as hereinafter specified to terminate this Agreement in its sole
discretion (for any reason or no reason) at any time after the date of this Agreement. Any such termination shall be without liability
of any party to any other party except that the provisions of Section 9 (Payment of Expenses), Section 11 (Indemnification
and Contribution), Section 12 (Representations and Agreements to Survive Delivery), Section 18 (Governing Law and
Time; Waiver of Jury Trial) and Section 19 (Consent to Jurisdiction) hereof shall remain in full force and effect notwithstanding
such termination.


 


c.
Each Agent shall have the right, by giving ten (10) days notice as hereinafter specified to terminate this Agreement in its
sole discretion (for any reason or no reason) at any time after the date of this Agreement. Any such termination shall be
without liability of any party to any other party except that the provisions of Section 9 (Payment of Expenses), Section
11 (Indemnification and Contribution), Section 12 (Representations and Agreements to Survive Delivery), Section
18 (Governing Law and Time; Waiver of Jury Trial) and Section 19 (Consent to Jurisdiction) hereof shall remain in
full force and effect notwithstanding such termination.


 


d.
Unless earlier terminated pursuant to this Section 13, this Agreement shall automatically terminate upon the issuance and
sale of all of the Placement Shares through the Agents on the terms and subject to the conditions set forth herein except that
the provisions of Section 9 (Payment of Expenses), Section 11 (Indemnification and Contribution), Section 12
(Representations and Agreements to Survive Delivery), Section 18 (Governing Law and Time; Waiver of Jury Trial) and
Section 19 (Consent to Jurisdiction) hereof shall remain in full force and effect notwithstanding such termination.


 


e.
This Agreement shall remain in full force and effect unless terminated pursuant to Sections 13(a), (b), (c),
or (d) above or otherwise by mutual agreement of the parties; provided, however, that any such termination by
mutual agreement shall in all cases be deemed to provide that Section 9 (Payment of Expenses), Section 11
(Indemnification and Contribution), Section 12 (Representations and Agreements to Survive Delivery), Section 18
(Governing Law and Time; Waiver of Jury Trial) and Section 19 (Consent to Jurisdiction) shall remain in full force and
effect. Upon termination of this Agreement, the Company shall not have any liability to an Agent for any discount, commission
or other compensation with respect to any Placement Shares not otherwise sold by an Agent under this Agreement.


 


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


 






    	 	32	 



     


    

 


14.  
Notices. All notices or other communications required or permitted to be given by any party to any other party pursuant
to the terms of this Agreement shall be in writing, unless otherwise specified, and if sent to the Agents, shall be delivered
to:


 


	 	FBR
    Capital Markets & Co.
	 	1300
    North 17th Street Suite 1400
	 	Arlington,  Virginia
    22209
	 	Attention:	Legal
    Department
	 	Telephone:
    	(703)
    312-9500
	 	Email:	atmdesk@fbr.com


 


	 	MLV
    & Co. LLC
	 	299
    Park Avenue, 7th  Floor
	 	New
    York, New York 10171
	 	Attention:	Legal
    Department
	 	Telephone:	(212)
    542-5880
	 	Email:	mlvlegal@mlvco.com


 


	 	JonesTrading
    Institutional Services LLC
	 	32133
    Lindero Canyon Road
	 	Suite
    208
	 	Westlake
    Village, CA 91361
	 	Fax
    No.: 	(818)
    879-5481
	 	Attn:
    	Trent
    McNair
	 	Email:
    	trentm@jonestrading.com


 


	With a copy to:
	 	 
	 	265 Franklin Street
	 	18th Floor,
	 	Boston, MA 02110
	 	Attn:	Steve
    Chmielewski, Esq.
	 	Facsimile:
    	(781)
    416-2899
	 	E-mail:
    	steve@jonestrading.com


 






    	 	33	 



     


    

 


with
a copy to:


 


	 	Duane
    Morris LLP
	 	One
    Riverfront Plaza 
	 	1037
    Raymond Boulevard, Suite 1800
	 	Newark,
    New Jersey 07102-5429
	 	Attention:	James
    T. Seery
	 	Telephone:	(973)
    424-2088
	 	Email:	jtseery@duanemorris.com


 


and
if to the Company, shall be delivered to:


 


	 	Actinium
    Pharmaceuticals, Inc.
	 	275
    Madison Avenue, 7th Floor
	 	New
    York, NY 10016
	 	Attention:  	Chief
    Executive Officer
	 	Telephone:	(646)
    677-3870
	 	Email:
    	sseth@actiniumpharma.com


 


with
a copy to:


 


	 	The
    Matt Law Firm, PLLC
	 	1701
    Genesee Street
	 	Utica,
    New York 13501
	 	Attention:	Thomas
    Slusarczyk, Esq.
	 	Telephone:
    	(315)
    235-2299
	 	Email:
    	tslusarczyk@mattlawfirm.com


 


Each
party to this Agreement may change such address for notices by sending to the parties to this Agreement written notice of a new
address for such purpose. Each such notice or other communication shall be deemed given (i) when delivered personally, by email,
or by verifiable facsimile transmission (with an original to follow) on or before 4:30 p.m., New York City time, on a Business
Day or, if such day is not a Business Day, on the next succeeding Business Day, (ii) on the next Business Day after timely delivery
to a nationally-recognized overnight courier and (iii) on the Business Day actually received if deposited in the U.S. mail (certified
or registered mail, return receipt requested, postage prepaid). For purposes of this Agreement, “Business Day”
shall mean any day on which the Exchange and commercial banks in the City of New York are open for business.


 


An
electronic communication (“Electronic Notice”) shall be deemed written notice for purposes of this Section
14 if sent to the electronic mail address specified by the receiving party under separate cover. Electronic Notice shall be
deemed received at the time the party sending Electronic Notice receives confirmation of receipt by the receiving party. Any party
receiving Electronic Notice may request and shall be entitled to receive the notice on paper, in a nonelectronic form (“Nonelectronic
Notice”) which shall be sent to the requesting party within ten (10) days of receipt of the written request for Nonelectronic
Notice.


 


15. Successors
and Assigns. This Agreement shall inure to the benefit of and be binding upon the Company and each Agent and their
respective successors and the affiliates, controlling persons, officers and directors referred to in Section 11
hereof. References to any of the parties contained in this Agreement shall be deemed to include the successors and permitted
assigns of such party. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the
parties hereto or their respective successors and permitted assigns any rights, remedies, obligations or liabilities under or
by reason of this Agreement, except as expressly provided in this Agreement. Neither party may assign its rights or
obligations under this Agreement without the prior written consent of the other party.


 






    	 	34	 



     


    

 


16. Adjustments
for Stock Splits. The parties acknowledge and agree that all share-related numbers contained in this Agreement shall be
adjusted to take into account any share consolidation, stock split, stock dividend, corporate domestication or similar event
effected with respect to the Placement Shares.


 


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


 


18. GOVERNING
LAW AND TIME; WAIVER OF JURY TRIAL. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
EACH PARTY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY
IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.


 


19. CONSENT
TO JURISDICTION. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS
SITTING IN THE CITY OF NEW YORK, BOROUGH OF MANHATTAN, FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION
WITH ANY TRANSACTION CONTEMPLATED HEREBY, AND HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUIT, ACTION OR
PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF ANY SUCH COURT, THAT SUCH SUIT, ACTION OR
PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM OR THAT THE VENUE OF SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER. EACH PARTY
HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS TO PROCESS BEING SERVED IN ANY SUCH SUIT, ACTION OR
PROCEEDING BY MAILING A COPY THEREOF (CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED) TO SUCH PARTY AT THE ADDRESS IN
EFFECT FOR NOTICES TO IT UNDER THIS AGREEMENT AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE GOOD AND SUFFICIENT SERVICE OF
PROCESS AND NOTICE THEREOF. NOTHING CONTAINED HEREIN SHALL BE DEEMED TO LIMIT IN ANY WAY ANY RIGHT TO SERVE PROCESS IN ANY
MANNER PERMITTED BY LAW.


 






    	 	35	 



     


    

 


20. Use
of Information. The Agents may not use any information gained in connection with this Agreement and the
transactions contemplated by this Agreement, including due diligence, to advise any party with respect to transactions not
expressly approved by the Company.


 


21. Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Delivery of an executed Agreement by one party to the other may be
made by facsimile transmission.


 


22. Effect
of Headings. The section and Exhibit headings herein are for convenience only and shall not affect the
construction hereof.


 


23. Permitted
Free Writing Prospectuses.


 


The
Company represents, warrants and agrees that, unless it obtains the prior consent of each Agent, which consent shall not be unreasonably
withheld, conditioned or delayed, and each Agent represents, warrants and agrees that, unless it obtains the prior consent of
the Company, which consent shall not be unreasonably withheld, conditioned or delayed, it has not made and will not make any offer
relating to the Placement Shares that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a
“free writing prospectus,” as defined in Rule 405, required to be filed with the Commission. Any such free writing
prospectus consented to by the Agents or by the Company, as the case may be, is hereinafter referred to as a “Permitted
Free Writing Prospectus.” The Company represents and warrants that it has treated and agrees that it will treat each Permitted
Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will
comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the
Commission where required, legending and record keeping. For the purposes of clarity, the parties hereto agree that all free writing
prospectuses, if any, listed in Exhibit 23 hereto are Permitted Free Writing Prospectuses.


 


24.  
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:


 


a.
Each Agent is acting solely as agent in connection with the public offering of the Placement Shares and in connection with each
transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship
between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any
other party, on the one hand, and the Agents, on the other hand, has been or will be created in respect of any of the transactions
contemplated by this Agreement, irrespective of whether or not any Agent has advised or is advising the Company on other matters,
and the Agents have no obligation to the Company with respect to the transactions contemplated by this Agreement except the obligations
expressly set forth in this Agreement;


 






    	 	36	 



     


    

 


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


 


c.
the Agents have not provided any legal, accounting, regulatory or tax advice with respect to the transactions contemplated
by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed
appropriate;


 


d.
it is aware that the Agents and their affiliates are engaged in a broad range of transactions which may involve interests that
differ from those of the Company and such Agent has no obligation to disclose such interests and transactions to the Company by
virtue of any fiduciary, advisory or agency relationship or otherwise; and


 


e.
it waives, to the fullest extent permitted by law, any claims it may have against the Agents for breach of fiduciary duty or
alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that the
Agents shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a
fiduciary duty claim or to any person asserting a fiduciary duty claim on its behalf or in right of it or the Company,
employees or creditors of Company, other than in respect of the Agents’ obligations under this Agreement and to keep
information provided by the Company to the Agents and the Agents’ counsel confidential to the extent not otherwise
publicly-available.


 


25.
  Definitions.


 


As
used in this Agreement, the following terms have the respective meanings set forth below:


 


“Applicable
Time” means (i) each Representation Date and (ii) the time of each sale of any Placement Shares pursuant to this Agreement.


 


“Issuer
Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433, relating to
the Placement Shares that (1) is required to be filed with the Commission by the Company, (2) is a “road show” that
is a “written communication” within the meaning of Rule 433(d)(8)(i) whether or not required to be filed with the
Commission, or (3) is exempt from filing pursuant to Rule 433(d)(5)(i) because it contains a description of the Placement Shares
or of the offering that does not reflect the final terms, in each case in the form filed or required to be filed with the Commission
or, if not required to be filed, in the form retained in the Company’s records pursuant to Rule 433(g) under the Securities
Act.


 


“Rule
172,” “Rule 405,” “Rule 415,” “Rule 424,” “Rule 424(b),”
“Rule 430B,” and “Rule 433” refer to such rules under the Securities Act.


 


All
references in this Agreement to financial statements and schedules and other information that is “contained,” “included”
or “stated” in the Registration Statement or the Prospectus (and all other references of like import) shall be deemed
to mean and include all such financial statements and schedules and other information that is incorporated by reference in the
Registration Statement or the Prospectus, as the case may be.


 


All
references in this Agreement to the Registration Statement, the Prospectus or any amendment or supplement to any of the foregoing
shall be deemed to include the copy filed with the Commission pursuant to EDGAR; all references in this Agreement to any Issuer
Free Writing Prospectus (other than any Issuer Free Writing Prospectuses that, pursuant to Rule 433, are not required to be filed
with the Commission) shall be deemed to include the copy thereof filed with the Commission pursuant to EDGAR; and all references
in this Agreement to “supplements” to the Prospectus shall include, without limitation, any supplements, “wrappers”
or similar materials prepared in connection with any offering, sale or private placement of any Placement Shares by the Agents
outside of the United States.


 


[Remainder
of the page intentionally left blank]


 



    	 	37	 



     


    

 


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


 


	 	Very
    truly yours,
	 	 
	 	ACTINIUM
    PHARMACEUTICALS, INC.
	 	 	 
	 	By:	/s/
    Sandesh Seth
	 	 	Name:
    Sandesh Seth
	 	 	Title:   Chairman
    of the Board and CEO


 


	 	ACCEPTED
    as of the date first-above written:
	 	 	 
	 	FBR
    CAPITAL MARKETS & CO.
	 	 	 
	 	By:	/s/
    Patrice McNicoll
	 	 	Name:  Patrice
    McNicoll
	 	 	Title:    Co-Head
    of Capital Markets


 


	 	MLV
    & CO. LLC
	 	 	 
	 	By:	/s/
    Patrice McNicoll
	 	 	Name:  Patrice
    McNicoll
	 	 	Title:    Chief
    Executive Officer


 


	 	JONESTRADING
    INSTITUTIONAL SERVICES LLC
	 	 	 
	 	By:	/s/
    Trent McNair
	 	 	Name:  Trent
    McNair
	 	 	Title:    Chief
    Financial Officer


 






     

     


    

 


SCHEDULE
1


 


 


 



 


FORM
OF PLACEMENT NOTICE


 





 



 


	 	From:	Actinium Pharmaceuticals,
    Inc.
	 	To:	[●]
	 	Attention:
    	[●]
	 	Subject:	At
    Market Issuance--Placement Notice


 


Gentlemen:


 


Pursuant
to the terms and subject to the conditions contained in the Amended and Restated At-the-Market Issuance Sales Agreement between
Actinium Pharmaceuticals, Inc., a Delaware corporation (the “Company”), and FBR Capital Markets & Co.,
MLV & Co. LLC and JonesTrading Institutional Services LLC (the “Agents”), dated July 3, 2017, the Company
hereby requests that [identify Designated Agent] sell up to [_______] shares of the Company’s Common Stock, $0.001
par value per share, at a minimum market price of $     per share, during the time period beginning [month, day, time] and ending
[month, day, time].


 






     

     


    

 


SCHEDULE
2


 





 



 


Compensation


 





 



 


The
Company shall pay to the Designated Agent in cash, upon each sale of Placement Shares pursuant to this Agreement, an amount equal
to 3.0% of the gross proceeds from each sale of Placement Shares.


 






     

     


    

 


SCHEDULE
3


 





 



 


Notice
Parties


 





 



 


	The
    Company	 
	 	 
	Sandesh
    Seth	sseth@actiniumpharma.com
	Steve
    O’Loughlin	soloughlin@actiniumpharma.com
	 	 
	FBR
    and MLV	 
	 	 
	Matthew
    Feinberg 	mfeinberg@fbr.com
	Ryan
    Loforte 	rloforte@fbr.com
	Patrice
    McNicoll 	pmcnicoll@fbr.com
	Keith
    Pompliano 	kpompliano@fbr.com
	 	 
	with
    a copy to atmdesk@fbr.com and mlvlegal@mlvco.com
	 	 
	JonesTrading	 
	 	 
	Moe
    Cohen	moec@jonestrading.com
	Bryan
    Turley 	bturley@jonestrading.com
	John
    D’Agostini 	johnd@jonestrading.com
	Ryan
    Gerety 	ryang@jonestrading.com


 


With
a copy to JTCM@jonestrading.com


 






     

     


    

 


SCHEDULE
6(g)


  


 





 



 


Subsidiaries


 





 



 


MedActinium,
Inc.


 






     

     


    

 


EXHIBIT
7(1)



 


Form
of Representation Date Certificate


 


____________________,
20___


 


This
Representation Date Certificate (this “Certificate”) is executed and delivered in connection with Section
7(1) of the Amended and Restated At-the-Market Issuance Sales Agreement (the “Agreement”), dated July 3,
2017, and entered into between Actinium Pharmaceuticals, Inc. (the “Company”) and FBR Capital Markets &
Co., MLV & Co. LLC and JonesTrading Institutional Services LLC. All capitalized terms used but not defined herein shall have
the meanings given to such terms in the Agreement.


 


The
Company hereby certifies as follows:


 


1.
As of the date of this Certificate (i) the Registration Statement does not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not
misleading and (ii) neither the Registration Statement nor the Prospectus contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading and (iii) no event has occurred as a result of which it is
necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading for this
paragraph 1 to be true.


 


2.
Each of the representations and warranties of the Company contained in the Agreement were, when originally made, and are, as
of the date of this Certificate, true and correct in all material respects.


 


3.
Except as waived by the Agents in writing, each of the covenants required to be performed by the Company in the Agreement on
or prior to the date of the Agreement, this Representation Date, and each such other date prior to the date hereof as set
forth in the Agreement, has been duly, timely and fully performed in all material respects and each condition required to be
complied with by the Company on or prior to the date of the Agreement, this Representation Date, and each such other date
prior to the date hereof as set forth in the Agreement has been duly, timely and fully complied with in all material
respects.


 


4.
Subsequent to the date of the most recent financial statements in the Prospectus, and except as described in the Prospectus,
including Incorporated Documents, there has been no Material Adverse Effect.


 


5.
No stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued, and no
proceedings for that purpose have been instituted or are pending or threatened by any securities or other governmental
authority (including, without limitation, the Commission).


 


6.
No order suspending the effectiveness of the Registration Statement or the qualification or registration of the Placement
Shares under the securities or Blue Sky laws of any jurisdiction are in effect and no proceeding for such purpose is pending
before, or threatened, to the Company’s knowledge or in writing by, any securities or other governmental authority
(including, without limitation, the Commission).


 


The
undersigned has executed this Representation Date Certificate as of the date first written above.


 


	 	ACTINIUM
    PHARMACEUTICALS, INC.
	 	 	 
	 	By:	                                     
	 	Name:
    	 
	 	Title:  	 


 






     

     


    

 


EXHIBIT
23


 


Permitted
Issuer Free Writing Prospectuses


 


None.