Exhibit 10.1


 


EXECUTION COPY


 


AETHLON
MEDICAL, INC.


 


$12,500,000


 


COMMON STOCK


 


SALES AGREEMENT 


 


June 28, 2016


 


H.C. Wainwright & Co. LLC


430 Park Avenue


New York, NY 10022


 


 


Ladies and Gentlemen:


 


Aethlon Medical, Inc.
(the “Company”), confirms its agreement (this “Agreement”) with H.C. Wainwright
& Co. LLC (“HCW”), as follows:


 


1.  Issuance
and Sale of Placement Shares. 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 HCW shares (the “Placement Shares”)
of the Company’s common stock, $0.001 par value per share (the “Common Stock”); provided
however, that in no event shall the Company issue or sell through HCW such number of Placement Shares that (a) exceeds the
number of shares or dollar amount of Common Stock registered on the effective Registration Statement (as defined below) pursuant
to which the offering is being made, (b) exceeds the number of shares or dollar amount registered on the Prospectus Supplement
(as defined below), or (c) would cause the Company to exceed the share amount limitations set forth in General Instruction I.B.6
of Form S-3 (the lesser of (a), (b) or (c) 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 aggregate
number of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that HCW shall
have no obligation in connection with such compliance. The issuance and sale of Placement Shares through HCW will be effected pursuant
to the Registration Statement, 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, also as
amended (the “Securities Act”), with the Securities and Exchange Commission (the “Commission”),
a registration statement on Form S-3 (File No. 333-211151), including a base prospectus (the “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, also as amended (the “Exchange Act”).
The Company has prepared a prospectus supplement (or may prepare one or more prospectus supplements or amendments thereto) to the
Base Prospectus included as part of such registration statement specifically relating to the Placement Shares (the “Prospectus
Supplement”). The Company will furnish to HCW, for use by HCW, copies of the Base 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, 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, 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 Base 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 any documents deemed incorporated by reference therein (pursuant
to the Securities Act or the Exchange Act) (the “Incorporated Documents”), 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
incorporated by reference therein.


 







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For purposes of this
Agreement, all references to the Registration Statement, to the Prospectus, to any Incorporated Documents, 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 HCW by email notice from a person identified on Schedule 2 (or other method mutually agreed to in writing
by the parties) (a “Placement Notice”) containing the parameters in accordance with which it desires
the Placement Shares to be sold, which shall at a minimum include the number of Placement Shares to be issued and sold, the time
period during which sales are requested to be made, any limitation on the number of Placement Shares that may be sold in any one
Trading Day (as defined in Section 3) and any minimum price below which Placement Shares may not be sold, a form of which containing
such minimum sales parameters necessary is attached hereto as Schedule 1. The Placement Notice shall originate from
any of the individuals from the Company set forth on Schedule 2 (with a copy to each of the other individuals from
the Company listed on such schedule), and shall be addressed to each of the individuals from HCW set forth on Schedule 2.
Schedule 2 may be amended from time to time in writing but only upon the mutual confirmation of such amendment by
HCW and the Company. The receipt of each Placement Notice shall promptly be acknowledged by HCW by providing email notice to the
Company to a person designated on Schedule 2. The Placement Notice shall be effective upon receipt by HCW unless and until
(i) in accordance with the notice requirements set forth in Section 4, HCW declines to accept the terms contained therein for any
reason, in its sole discretion, (ii) the entire amount of the Placement Shares have been sold thereunder, (iii) in accordance with
the notice requirements set forth in Section 4, the Company suspends or terminates the Placement Notice, (iv) the Company issues
a subsequent Placement Notice with parameters which supersedes an earlier dated Placement Notice, or (v) this Agreement has been
terminated under the provisions of Section 11. The amount of any commission to be paid by the Company to HCW in connection
with the sale of the Placement Shares shall be calculated in accordance with the terms set forth in Schedule 3 and
shall be set forth in the Placement Notice. It is expressly acknowledged and agreed that neither the Company nor HCW will
have any obligation whatsoever with respect to a Placement or any Placement Shares unless and until the Company delivers a Placement
Notice to HCW and HCW 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 HCW.


 


(a) Subject to
the terms and conditions herein set forth, upon the Company’s delivery of a Placement Notice, and unless the sale of the
Placement Shares described therein has been declined, suspended, or otherwise terminated in accordance with the terms of this Agreement,
HCW, for the period specified in the Placement Notice, will use its commercially reasonable efforts consistent with its normal
trading and sales practices and applicable state and federal laws, rules and regulations and the rules of NASDAQ Capital Market
(“Exchange”) to sell such Placement Shares in accordance with the terms of such Placement Notice. HCW
will provide written confirmation to the Company (including by email correspondence to each of the individuals of the Company set
forth on Schedule 2) no later than the opening of the Trading Day immediately following the Trading Day during 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 HCW pursuant to Section 2 with respect to such sales and the Net Proceeds (as defined below) payable
to the Company. HCW may sell Placement Shares only in accordance with a method permitted by law and in a manner deemed to be an
“at the market” offering as defined in Rule 415 of the Securities Act, including without limitation sales made on the
Exchange, on any other existing trading market for the Common Stock or to or through a market maker. If expressly authorized by
the Company in a Placement Notice, HCW may also sell Placement Shares in negotiated transactions. Notwithstanding the provisions
of Section 6(jj), HCW shall not purchase Placement Shares for its own account as principal unless expressly authorized to do so
by the Company in a Placement Notice. The Company acknowledges and agrees that (i) there can be no assurance that HCW will be successful
in selling Placement Shares, and (ii) HCW 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 HCW to use its commercially reasonable efforts consistent
with its normal trading and sales practices to sell such Placement Shares as required under this Section 3. For the purposes
hereof, “Trading Day” means any day on which the Company’s Common Stock is purchased and sold on
the principal market on which the Common Stock is listed or quoted.


 


(b) Limitations
on Offering Size. Under no circumstances shall the Company 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, and (B) 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 HCW in writing. Under no circumstances shall the Company 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 officers of the Company identified on Schedule 2 and notified to HCW in writing. Further, under no circumstances
shall the Company request the sale of Placement Shares pursuant to this Agreement in an aggregate offering amount that would exceed
the Maximum Amount.


 






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4.  Suspension
of Sales.


 


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


 


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


 


5.  Settlement.


 


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


 


(b) Delivery
of Placement Shares. On or before each Settlement Date, the Company will, or will cause its transfer agent to, electronically
transfer the Placement Shares being sold by crediting HCW’s or its designee’s account (provided HCW 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 (“DWAC”) 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, HCW will deliver the related Net Proceeds in same day funds to an account designated
by the Company on, or prior to, the Settlement Date. The Company agrees that if the Company, or its transfer agent (if applicable),
defaults in its obligation to deliver duly authorized Placement Shares on a Settlement Date through no fault of HCW, in addition
to and in no way limiting the rights and obligations set forth in Section 9(a) (Indemnification and Contribution) hereto,
it will (i) hold HCW 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 and (ii) pay
to HCW (without duplication) any commission, discount, or other compensation to which it would otherwise have been entitled absent
such default.


 






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


 


(a) Compliance
with Registration Requirements. The Registration Statement has been declared effective by the Commission under the Securities
Act. The Company has complied with all requests of the Commission for additional or supplemental information related to the Registration
Statement or the Prospectus. No stop order suspending the effectiveness of the Registration Statement or any Rule 462(b) Registration
Statement is in effect and no proceedings for such purpose have been instituted or are pending or, to the best knowledge of the
Company, threatened by the Commission.


 


(b)  No
Misstatement or Omission. The Prospectus when filed complied and, as amended or supplemented, if applicable, will comply in
all material respects with the Securities Act. Each of the Registration Statement, any Rule 462(b) Registration Statement,
the Prospectus and any post-effective amendments or supplements thereto, at the time it became effective or its date, as applicable,
and as of each of the Settlement Dates, if any, complied in all material respects with the Securities Act and did not and, as of
each Settlement Date, if any, will not contain any untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made, not
misleading. The Prospectus, as amended or supplemented, as of its date, and as of each of the Settlement Dates, if any, will not
contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading. The representations and warranties set forth in the
two immediately preceding sentences do not apply to statements in or omissions from the Registration Statement, any Rule 462(b)
Registration Statement, or any post-effective amendment thereto, or the Prospectus, or any amendments or supplements thereto, made
in reliance upon and in conformity with information relating to HCW furnished to the Company in writing by HCW expressly for use
therein. Except as set forth on Schedule 4, there are no contracts or other documents required to be described in
the Prospectus or to be filed as exhibits to the Registration Statement which have not been described or filed as required.


 


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


 


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



 



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(e) 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.6 of Form S-3. As of the close
of trading on the Exchange on the Trading Day immediately prior to the date of this Agreement, the aggregate market value of
the outstanding voting and non-voting common equity (as defined in Rule 405) of the Company held by persons other than affiliates
of the Company (pursuant to Rule 144 of the Securities Act, those that directly, or indirectly through one or more intermediaries,
control, or are controlled by, or are under common control with, the Company)  (the “Non-Affiliate Shares”),
was approximately $38,099,583.48  (calculated by multiplying (x) the price at which the common equity of the Company was
last sold on the Exchange on the Trading Day immediately prior to the date of this Agreement times (y) the number of Non-Affiliate
Shares). The Company is not a shell company (as defined in Rule 405) and has not been a shell company for at least 12 calendar
months previously and if it has been a shell company at any time previously, has filed current Form 10 information (as defined
in Instruction I.B.6 of Form S-3) with the Commission at least 12 calendar months previously reflecting its status as an entity
that is not a shell company.


 


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


 


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


 


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


 


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


 


 






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



 


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


 


(l) Incorporation
and Good Standing of the Company and its Subsidiaries. The Company is incorporated and is validly existing as a corporation
in good standing under the laws of the State of Nevada and has corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Prospectus and to enter into and perform its obligations under this Agreement.
Each subsidiary of the Company is organized and is validly existing as a corporation in good standing under the laws of the jurisdiction
of its organization and has the requisite power and authority to own, lease and operate its properties and to conduct its business
as described in the Prospectus. Each of the Company and the subsidiaries is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership
or leasing of property or the conduct of business, except for such jurisdictions where the failure to so qualify or to be in good
standing would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Change. Except as
described in the Prospectus, all of the issued and outstanding equity interests of the subsidiaries have been duly authorized and
validly issued, are fully paid and nonassessable and, with respect to the subsidiary shares owned by the Company, are owned by
the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or adverse claim. The Company does not
own or control, directly or indirectly, any corporation, association or other entity other than the subsidiaries listed in Exhibit 21.1
to the Company’s Annual Report on Form 10-K for the fiscal year ended March 31, 2015.


 


(m) Capital
Stock Matters. Except as set forth in the Prospectus and Registration Statement, the Common Stock conforms in all material
respects to the description thereof contained in the Prospectus. All of the issued and outstanding shares of Common Stock have
been duly authorized and validly issued, are fully paid and nonassessable and, to the Company’s knowledge, have been issued
in compliance with federal and state securities laws. None of the outstanding shares of Common Stock were issued in violation of
any preemptive rights, rights of first refusal or other similar rights to subscribe for or purchase securities of the Company.
Except as set forth on Schedule 4 and except as described in the Prospectus or Registration Statement, there are
no authorized or outstanding options, warrants, preemptive rights, rights of first refusal or other rights to purchase, or equity
or debt securities convertible into or exchangeable or exercisable for any capital stock of the Company or any of its subsidiaries.
The description of the Company’s stock option, stock bonus and other stock plans or arrangements, and the options or other
rights granted thereunder, set forth in the Prospectus accurately and fairly presents in all material respects the information
required to be shown with respect to such plans, arrangements, options and rights under the Exchange Act or the Securities Act,
as applicable.


 






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


 


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


 


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


 


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


 






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(r) Company
Not an “Investment Company”. The Company has been advised of the rules and requirements under the Investment Company
Act of 1940, as amended (the “Investment Company Act”). The Company is not, and after receipt of payment
for the Placement Shares will not be, an “investment company” within the meaning of Investment Company Act.


 


(s) Insurance.
Except as otherwise described in the Prospectus, each of the Company and its subsidiaries are insured by insurers of recognized
financial responsibility with policies in such amounts and with such deductibles and covering such risks as are generally deemed
prudent and customary for their respective businesses as currently conducted and described in the Prospectus. The Company has no
reason to believe that it or any subsidiary will not be able (i) to renew its existing insurance coverage as and when such
policies expire or (ii) to obtain comparable coverage from similar institutions as may be necessary or appropriate to conduct
its business as now conducted and at a cost that would not result in a Material Adverse Change.


 


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


 


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


 


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


 


(w) No
Unlawful Contributions or Other Payments. Neither the Company nor any of its subsidiaries nor, to the Company’s knowledge,
any director, officer, employee or agent of the Company or any subsidiary acting on behalf of the Company or any of its subsidiaries
has  taken any action, directly or indirectly, that would result in a violation by such persons of the Foreign Corrupt Practices
Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”), including, without limitation,
making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise
to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of
anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or
official thereof or any candidate for foreign political office, in contravention of the FCPA and the Company and, to the knowledge
of the Company, its controlled affiliates have conducted their businesses in compliance with the FCPA and have instituted and maintain
policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.


 






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


 


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


 


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


 


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


 






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


 


(cc)  Intellectual
Property. Except for specific matters described in the Prospectus, the Company and its subsidiaries own, possess or have sufficient
rights to use all trademarks, trade names, patent rights, copyrights, domain names, licenses, approvals, trade secrets, inventions,
technology, know-how and other intellectual property and similar rights, including registrations and applications for registration
thereof (collectively, “Intellectual Property Rights”) necessary or material to the conduct of the business
now conducted or proposed in the Prospectus to be conducted by them. Except as disclosed in the Prospectus (i) there are no rights
of third parties to any of the Intellectual Property Rights owned or purported to be owned by the Company or its subsidiaries;
(ii) to the Company’s knowledge there is no infringement, misappropriation, breach, or default by any third party of any
of the Intellectual Property Rights of the Company or any of its subsidiaries; (iii) there is no pending or, to the Company’s
knowledge, threatened action, suit, proceeding or claim by any third party challenging the Company’s or any of its subsidiaries’
rights in or to, or the violation of any of the terms of, any of their Intellectual Property Rights; (iv) there is no pending or,
to the Company’s knowledge, threatened action, suit, proceeding or claim by any third party challenging the validity, enforceability
or scope of any Intellectual Property Rights of the Company or any of its subsidiaries; (v) there is no pending or, to the Company’s
knowledge, threatened action, suit, proceeding or claim by any third party that the Company or any of its subsidiaries infringes,
misappropriates or otherwise violates or conflicts with any Intellectual Property Rights of any third party; (vi) none of the Intellectual
Property Rights used or held for use by the Company or any of its subsidiaries in their businesses has been obtained or is being
used or held for use by the Company or any of its subsidiaries in violation of any contractual obligation binding on the Company
or any of its subsidiaries, and (vii) the Company and its subsidiaries have taken reasonable steps to maintain the confidentiality
of all Intellectual Property Rights the value of which to the Company or any subsidiary is contingent upon maintaining the confidentiality
thereof, except in each case covered by clauses (i) – (vii) such as would not, if determined adversely to the Company or
any of its subsidiaries, individually or in the aggregate, result in a Material Adverse Change.


 






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(dd) Compliance
with Applicable Laws. The Company and the subsidiaries: (A) are and at all times have been in material compliance with all
statutes, rules and regulations applicable to the ownership, testing, development, manufacture, packaging, processing, use, distribution,
marketing, 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”), (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, result in a Material Adverse Effect; (C) possess all material Authorizations 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 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).


 


(ee) Clinical
Studies. All animal and other preclinical studies and clinical trials conducted by the Company or 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.


 






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(ff) Compliance
Program. The Company has established and administers a compliance program applicable to the Company, to assist the Company
and the officers and employees of the Company in complying 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.


 


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


 


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


 


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


 


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


 


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


 


Any certificate signed by an authorized
officer of the Company and required to be delivered to HCW under the terms of this Agreement shall be deemed to be a representation
and warranty by the Company to HCW as to the matters set forth therein.


 


The Company acknowledges that HCW and,
for purposes of the opinions to be delivered pursuant to Section 7 hereof, counsel to the Company and counsel to HCW will
rely upon the accuracy and truthfulness of the foregoing representations, including any representations in any certificate signed
by an authorized officer of the Company, and hereby consents to such reliance.


 


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


 






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


 


(b) Notice
of Commission Stop Orders. The Company will advise HCW, 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 use its commercially reasonable efforts to prevent the issuance
of any stop order or to obtain its withdrawal if such a stop order should be issued.


 


(c) Delivery
of Prospectus; Subsequent Changes. During any period in which a Prospectus relating to the Placement Shares is required to
be delivered by HCW under the Securities Act with respect to a pending sale of the Placement Shares, (including in circumstances
where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Company will use its commercially reasonably
efforts to comply 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 (taking into account any extensions available under the Exchange Act) all reports and any definitive
proxy or information statements required to be filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14,
15(d) or any other provision of or under the Exchange Act. If during such period any event occurs as a result of which the Prospectus
as then amended or supplemented would include an untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances then existing, not misleading, or if during such period it is
necessary to amend or supplement the Registration Statement or Prospectus to comply with the Securities Act, the Company will promptly
notify HCW to suspend the offer and sale 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 good faith judgment of the Company, and upon the advice
of counsel to the Company, it is in the best interest of the Company to do so.


 






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(d) Listing
of Placement Shares. During any period in which the Prospectus relating to the Placement Shares is required to be delivered
by HCW under the Securities Act with respect to a pending sale of the Placement Shares (including in circumstances where such requirement
may be satisfied pursuant to Rule 172 under the Securities Act), the Company will use its commercially reasonable efforts to cause
the Placement Shares to be listed on the Exchange and to qualify the Placement Shares for sale under the securities laws of such
jurisdictions in the United States as HCW 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, or subject itself
to taxation or the requirement to qualify to do business as foreign corporation in any jurisdiction if not previously required
to do so.


 


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


 


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


 


(g) Expenses.
The Company, whether or not the transactions contemplated hereunder are consummated or this Agreement is terminated, in accordance
with the provisions of Section 11 hereunder, will pay all of its own expenses incident to the performance of its obligations under
this Agreement, including (i) the preparation and filing, including any fees required by the Commission, and printing (if required
by law) of the Registration Statement (including financial statements and exhibits) as originally filed and of each amendment and
supplement thereto and each free writing prospectus, (ii) the printing (if required by law) and delivery to HCW of this Agreement
and such other documents as may be required by HCW 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 HCW, 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 HCW, (iv) the fees and disbursements of the counsel, accountants and other advisors to the
Company, (v) the fees and disbursements of counsel to HCW up to $50,000; (vi) the fees and expenses of the Company’s transfer
agent and registrar for the Common Stock, (vii) the filing fees incident to any routine review by FINRA of the terms of the sale
of the Placement Shares, (viii) the fees and expenses incurred in connection with the listing of the Placement Shares on the Exchange,
and (ix) all trading, execution, settlement, or wiring fees incurred by HCW in connection with the sale of the Placement Shares.


 


(h) Use of
Proceeds. The Company will use the Net Proceeds as described in the Prospectus in the section entitled “Use of Proceeds,”
as such disclosure may be amended or supplemented from time to time.


 






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(i) Notice
of Other Sales. During the pendency of any Placement Notice, and for 5 Trading Days following the termination of any Placement
Notice r, the Company shall provide HCW notice as promptly as reasonably possible before it offers to sell, contracts to sell,
sells, grants any option to sell or otherwise disposes of any shares of Common Stock (other than Placement Shares offered pursuant
to the provisions of this Agreement) or securities convertible into or exchangeable for Common Stock, warrants or any rights to
purchase or acquire Common Stock; provided, that such notice shall not be required in connection with the (i) issuance,
grant or sale of Common Stock, options to purchase shares of Common Stock or any other equity awards, or Common Stock issuable
upon the exercise of options or other equity awards pursuant to any stock option, stock bonus, employee stock purchase or other
stock plan or arrangement described in the Prospectus, (ii) the issuance, grant or sale of Common Stock, or securities convertible
into or exercisable for Common Stock, in connection with any joint venture, commercial, strategic or collaborative relationship,
or the acquisition or license by the Company of the securities, businesses, property or other assets of another person or entity,
(iii) the issuance or sale of Common Stock pursuant to any dividend reinvestment plan that the Company may adopt from time to time
provided the implementation of such is disclosed to HCW in advance or (iv) any shares of Common Stock issuable upon the exchange,
conversion or redemption of securities or the exercise or vesting of warrants, options or other rights in effect or outstanding.
Notwithstanding the foregoing provisions, nothing herein shall be construed to restrict the Company’s ability, or require
the Company to provide notice to HCW, to file a registration statement under the Securities Act.


 


(j) Change
of Circumstances. The Company will, at any time during a fiscal quarter in which the Company intends to tender a Placement
Notice or sell Placement Shares, advise HCW 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 HCW pursuant to this Agreement.


 


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


 


(l) Required
Filings Relating to Placement of Placement Shares. To the extent that the filing of a prospectus supplement with the Commission
with respect to a placement of Placement Shares is required under Rule 424(b) under the Securities Act, the Company agrees that
on or before 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, which prospectus supplement will set forth, to the extent
required, within the relevant period, the amount of Placement Shares sold through HCW, the Net Proceeds to the Company and the
compensation payable by the Company to HCW with respect to such Placement Shares (provided that the Company may satisfy its obligations
under this Section 7(l)(i) by making a filing in accordance with the Exchange Act with respect to such required information), and
(ii) deliver such number of copies of each such prospectus supplement to each exchange or market on which such sales were effected
as may be required by the rules or regulations of such exchange or market.


 






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(m) Representation
Dates; Certificate. On or prior to the First Delivery Date and each time the Company (i) amends or supplements the Registration
Statement or the Prospectus relating to the Placement Shares (other than a prospectus supplement filed in accordance with Section
7(l) of this Agreement) by means of a post-effective amendment, sticker, or supplement but not the filing of Incorporated Documents;
(ii) files an annual report on Form 10-K under the Exchange Act; (iii) files its quarterly reports on Form 10-Q under the Exchange
Act; or (iv) files a current report on Form 8-K under the Exchange Act containing amended audited 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) 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
HCW with a certificate, in the form attached hereto as Exhibit 7(m) within five (5) Trading Days of any Representation Date
if requested by HCW. The requirement to provide a certificate under this Section 7(m) shall be automatically 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,
including for purposes of Sections 7(n) and 7(o) hereof) and the next occurring Representation Date; provided, however,
that such waiver shall not apply for any Representation Date on which the Company files its annual report on Form 10-K. Notwithstanding
the foregoing, if the Company subsequently decides to sell Placement Shares following a Representation Date when the Company relied
on such waiver and did not provide HCW with a certificate under this Section 7(m), then before the Company delivers the
Placement Notice or HCW sells any Placement Shares, the Company shall provide HCW with a certificate, in the form attached hereto
as Exhibit 7(m), dated the date of the Placement Notice.


 


(n) Legal
Opinion. (i) On or prior to the First Delivery Date, the Company shall cause to be furnished to HCW a written opinion
and a negative assurance letter of Raines Feldman LLP, or other counsel reasonably satisfactory to HCW (“Company Counsel”),
in form and substance reasonably satisfactory to HCW and its counsel, dated the date that such opinion and negative assurance letter
are required to be delivered (the “Opinion Date”) and (ii) within the later of (A) 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(m) (to the extent that no waiver is in effect), and (B) the date a Placement Notice is first delivered by the
Company following a Representation Date, but in any event not more than once per calendar quarter, the Company shall cause to be
furnished to HCW a negative assurance letter of Company Counsel, in form and substance reasonably satisfactory to HCW and its counsel,
dated the date of delivery of such negative assurance letter, substantially similar to the forms attached hereto as Exhibit
7(n)(i) (solely with respect to the opinion and negative assurance letter to be delivered on or prior to the First Delivery
Date) and Exhibit 7(n)(ii) (for negative assurance letters to be delivered in connection with subsequent Representation
Dates), respectively, modified, as necessary, to relate to the Registration Statement and the Prospectus as then amended or supplemented;
provided, however, that in lieu of a negative assurance letter for subsequent Representation Dates, counsel may furnish
HCW with a letter (a “Reliance Letter”) to the effect that HCW may rely on a prior negative assurance
letter delivered under this Section 7(n) to the same extent as if it were dated the date of such Reliance Letter (except
that statements in such prior negative assurance letter shall be deemed to relate to the Registration Statement and the Prospectus
as amended or supplemented as of the date of such Reliance Letter).


 






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(o) Comfort
Letter. On or prior to the First Delivery Date and within five (5) Trading Days of each subsequent Representation Date with
respect to which the Company is obligated to deliver a certificate in the form attached hereto as Exhibit 7(m) (to the extent
that no waiver is in effect), other than pursuant to Section 7(m)(iii), the Company shall cause its independent accountants to
furnish HCW letters (the “Comfort Letters”), dated the date the Comfort Letter is delivered, in form
and substance reasonably satisfactory to HCW, (i) confirming that they are an independent registered public accounting firm within
the meaning of the Securities Act and the PCAOB, (ii) stating, as of such date, the conclusions and findings of such firm with
respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to
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.


 


(p) 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 the Placement Shares or (ii) sell, bid for, or purchase the Placement Shares in violation of Regulation
M, or pay anyone any compensation for soliciting purchases of the Placement Shares other than HCW; provided, however, that the
Company may bid for and purchase shares of its Common Stock in accordance with Rule 10b-18 under the Exchange Act.


 


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


 


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


 


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


 


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


 


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


 






    	 	18	 



     

    

 


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


 


8.  Conditions
to HCW’s Obligations. The obligations of HCW 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 HCW of a due diligence review satisfactory to HCW in its reasonable judgment,
and to the continuing satisfaction (or waiver by HCW in its sole discretion) of the following additional conditions:


 


(a) Registration
Statement Effective. The Registration Statement shall be effective and shall be available for the sale of all Placement Shares
contemplated to be issued under this Agreement.


 


(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 filings or submissions have not, as of the time of a Placement, been made and deemed effective;
(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 from the Commission or any other federal or state governmental authority with respect to the suspension of
the qualification or exemption from qualification of any of the Placement Shares for sale in any U.S. jurisdiction or the initiation
of any proceeding for such purpose; or (iv) the occurrence of any event that makes any material statement made in the Registration
Statement or the Prospectus or any material Incorporated Document untrue in any material respect or that requires the making of
any changes in the Registration Statement, the related Prospectus or such Incorporated Document 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, in light of the circumstances under which they were made, not misleading
and, that in the case of the Prospectus or any Incorporated Document, 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 have not, as of the time of a Placement,
been made and deemed effective.


 


(c) No
Misstatement or Material Omission. HCW 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 HCW’s reasonable opinion is material, or
omits to state a fact that in HCW’s 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 Change or any development since the date of this Agreement that could reasonably be expected
to result in a Material Adverse Change.


 






    	 	19	 



     

    

 


(e) Company
Counsel Legal Opinion. HCW shall have received the opinion and negative assurance letters or Reliance Letters of Company Counsel
required to be delivered pursuant to Section 7(n) on or before the date on which such delivery of such opinion and negative
assurance letter is required pursuant to Section 7(n).


 


(f) Information
for HCW Counsel Legal Opinion. The Company shall have furnished to HCW Counsel such documents as HCW may reasonably request
for enabling such HCW Counsel to deliver to HCW such opinion or opinions as to matters that HCW may reasonably request.


 


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


 


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


 


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


 


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


 


(k) Other
Materials. On each date on which the Company is required to deliver a certificate pursuant to Section 7(m), the Company
shall have furnished to HCW such appropriate further information, certificates and documents as HCW may have reasonably requested
in furtherance of the transactions contemplated hereby, in form and substance reasonably satisfactory to HCW and its counsel.


 


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


 


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


 


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


 






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9.  Indemnification
and Contribution.


 


(a) (i) Company
Indemnification. The Company agrees to indemnify and hold harmless HCW, the directors, officers, partners, employees and agents
of HCW and each person, if any, who (A) controls HCW within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, or (B) is controlled by or is under common control with HCW (a “HCW Affiliate”) from and
against any and all losses, claims, liabilities, expenses and damages (including, but not limited to, any and all reasonable investigative,
legal and other expenses incurred in connection with, and any and all amounts paid in settlement (in accordance with Section
9(c)) of, any action, suit or proceeding between any of the indemnified parties or between any indemnified party and any third
party, or otherwise, or any claim asserted), as and when incurred, to which HCW, or any such person, may become subject under the
Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as
such losses, claims, liabilities, expenses or damages arise out of or are based, directly or indirectly, on 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 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; provided, however, that this indemnity agreement shall not apply to the extent that such loss, claim,
liability, expense or damage arises from the sale of the Placement Shares pursuant to this Agreement and is caused directly or
indirectly by an untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with
information relating to HCW and furnished to the Company in writing by HCW expressly for use in the Registration Statement (or
any amendment thereto), the Prospectus (or any amendment thereto) or any related free writing prospectus. This indemnity agreement
will be in addition to any liability that the Company might otherwise have.


 


(ii) HCW Indemnification.
HCW agrees to indemnify and hold harmless the Company and its directors and each officer of the Company that signed the Registration
Statement, and each person, if any, who (A) controls the Company within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act or (B) 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 9(a), as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendments thereto)
or the Prospectus (or any amendment or supplement thereto) or in any related free writing prospectus in reliance upon and in conformity
with information relating to HCW and furnished to the Company in writing by HCW expressly for use therein.


 






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(b) Procedure.
Any party that proposes to assert the right to be indemnified under this Section 9 will, promptly after receipt of notice
of commencement of any action against such party in respect of which a claim is to be made against an indemnifying party or parties
under this Section 9, notify each such indemnifying party of the commencement of such action, enclosing a copy of all papers
served, but the omission so to notify such indemnifying party will not relieve the indemnifying party from (i) any liability that
it might have to any indemnified party otherwise than under this Section 9 and (ii) any liability that it may have to any
indemnified party under the foregoing provision of this Section 9 unless, and only to the extent that, such omission results
in the forfeiture of substantive rights or defenses by the indemnifying party. If any such action is brought against any indemnified
party and it notifies the indemnifying party of its commencement, the indemnifying party will be entitled to participate in and,
to the extent that it elects by delivering written notice to the indemnified party promptly after receiving notice of the commencement
of the action from the indemnified party, jointly with any other indemnifying party similarly notified, to assume the defense of
the action, with counsel reasonably satisfactory to the indemnified party, and after notice from the indemnifying party to the
indemnified party of its election to assume the defense, the indemnifying party will not be liable to the indemnified party for
any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred
by the indemnified party in connection with the defense. The indemnified party will have the right to employ its own counsel in
any such action, but the fees, expenses and other charges of such counsel will be at the expense of such indemnified party unless
(1) the employment of counsel by the indemnified party has been authorized in writing by the indemnifying party, (2) the indemnified
party has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other indemnified
parties that are different from or in addition to those available to the indemnifying party, (3) a conflict or potential conflict
of interest 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, reasonable and documented
out of pocket 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 reasonable and documented out of pocket disbursements
and other charges will be reimbursed by the indemnifying party promptly following the indemnifying party’s receipt of reasonably
detailed documentation with respect to such fees, disbursements and other charges. An indemnifying party will not, in any event,
be liable for any settlement of any action or claim effected without its written consent. No indemnifying party shall, without
the prior written consent of each indemnified party, settle or compromise or consent to the entry of any judgment in any pending
or threatened claim, action or proceeding relating to the matters contemplated by this Section 9 (whether or not any indemnified
party is a party thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each indemnified
party from all liability arising or that may arise out of such claim, action or proceeding and (ii) does not include any statement
or admission as to fault, culpability or a failure to act on the part of any indemnified party.






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


 






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


 


11.  Termination.


 


(a) HCW shall have the right by
giving written notice as hereinafter specified at any time to terminate this Agreement if (i) since the date of this Agreement
any Material Adverse Change, or any development that would reasonably be expected to result in a Material Adverse Change has occurred
that, in the reasonable judgment of HCW, may materially impair the ability of HCW to sell the Placement Shares hereunder, (ii)
the Company shall have failed, refused or been unable to perform any agreement on its part to be performed hereunder (through no
fault of HCW); provided, however, in the case of any failure of the Company to deliver (or cause another person to deliver)
any certification, opinion, or letter required under Sections 7(m), 7(n), or 7(o), HCW’s right
to terminate shall not arise unless such failure to deliver (or cause to be delivered) continues for more than thirty (30) days
from the date such delivery was required; (iii) any other condition of HCW’s obligations hereunder is not fulfilled
by the Company; or (iv) 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. Any such termination shall be without liability of any party to any other
party except that the provisions of Section 7(g) (Expenses), Section 9 (Indemnification and Contribution), Section
10 (Representations and Agreements to Survive Delivery), Section 16 (Applicable Law; Consent to Jurisdiction) and Section
17 (Waiver of Jury Trial) hereof shall remain in full force and effect notwithstanding such termination. If HCW elects to terminate
this Agreement as provided in this Section 11(a), HCW shall provide the required written notice as specified in Section
12 (Notices).


 


(b) The Company
shall have the right, by giving five (5) days’ notice as hereinafter specified to terminate this Agreement in its sole discretion
at any time after the date of this Agreement. Any such termination shall be without liability of any party to any other
party except that the provisions of Section 7(g), Section 9, Section 10, Section 16 and Section
17 hereof shall remain in full force and effect notwithstanding such termination.


 


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


 


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


 






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


 


(f) Any termination
of this Agreement shall be effective on the date specified in such notice of termination; provided, however, that such termination
shall not be effective until the close of business on the date of receipt of such notice by HCW or the Company, as the case may
be; and provided further that HCW shall suspend any ongoing Placement as soon as practicable following receipt of the notice
of termination (and in any event by the close of business on the date of receipt). 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.


 


Notices. All
notices or other communications required or permitted to be given by any party to any other party pursuant to the terms of this
Agreement shall be in writing, unless otherwise specified in this Agreement, and if sent to HCW, shall be delivered to HCW at H.C.
Wainwright & Co. LLC, 430 Park Avenue, New York, NY 10022, email atm@hcwco.com, Attention: Head of Investment Banking with
a copy to Duane Morris LLP, 1037 Raymond Boulevard, Newark, NJ 07102, attention: Dean M. Colucci, e-mail dmcolucci@duanemorris.com;
or if sent to the Company, shall be delivered to Aethlon Medical, Inc., 9635 Granite Ridge Drive, Suite 100, San Diego, CA 92123,
attention: James Frakes, Chief Financial Officer, e-mail: jfrakes@aethlonmedical.com , with a copy (which shall not constitute
notice) to Raines Feldman LLP, 9720 Wilshire Blvd., Fifth Floor, Beverly Hills, CA 90212, attention: Jennifer A. Post, Esq. e-mail:
jpost@raineslaw.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 (as defined below), or, if such day is not a Business Day on the
next succeeding Business Day, (ii) on the next Business Day after timely delivery to a nationally-recognized overnight courier,
(iii) on the Business Day actually received if deposited in the U.S. mail (certified or registered mail, return receipt
requested, postage prepaid) and (iv) if sent by e-mail, on the Business Day on which receipt is confirmed by the individual to
whom the notice is sent, other than via auto-reply. 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 purpose of this Section 11 if sent to the electronic
mail address specified by the receiving party under separate cover. Electronic Notice shall be deemed to be 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 non-electronic form (“Non-electronic Notice”)
which shall be sent to the requesting party within ten (10) days of receipt of the written request for Non-electronic Notice.


 


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


 


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


 






    	 	25	 



     

    

 


14.  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 HCW. 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.


 


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


 


16.  Waiver
of Jury Trial. The Company and HCW each hereby irrevocably waive, to the fullest extent permitted by law, any right it may
have to a trial by jury in respect of any claim based upon or arising out of this Agreement or any transaction contemplated hereby.


 


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


 


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


 


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


 


 






    	 	26	 



     

    

 


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


 


(d) the Company
waives, to the fullest extent permitted by law, any claims it may have against HCW, 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 HCW shall have no liability
(whether direct or indirect) to the Company in respect of such a fiduciary claim.


 


18.  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
or other electronic transmission.


 


[Remainder of Page Intentionally Blank]


 


 


 


 


 


 


 


 


 






    	 	27	 



     

    

 


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


 


	 	Very truly yours,
	 	 	 
	 	H.C. WAINWRIGHT & CO., LLC
	 	 	 
	 	 	 
	 	By:	/s/ Edward D. Silvera
	 	Name:	Edward D. Silvera
	 	Title: 	Head of Investment Banking
	 	 	 
	 	 	 
	 	ACCEPTED as of the date
	 	first-above written:
	 	 	 
	 	AETHLON MEDICAL, INC.
	 	 	 
	 	 	 
	 	By:	/s/ James B. Frakes
	 	Name:	James B. Frakes
		Title:	Chief Financial Officer



 


 


 


 


 






    	 	28	 



     

    

 


SCHEDULE 1


 


form
of PLACEMENT NOTICE


 


 


	From:	Aethlon Medical, Inc.
	To:	H.C. Wainwright & Co., LLC
	Subject: 	At the Market Offering—Placement
Notice
	Date:	_______________, 20___



 


Gentlemen:


 


Pursuant to the terms
and subject to the conditions contained in the Sales Agreement between Aethlon Medical, Inc. (the “Company”)
and H.C. Wainwright & Co., LLC (“HCW”) dated June 28, 2016 (the “Agreement”), I hereby
request on behalf of the Company that HCW sell up to [ ] shares of the Company’s common stock, par value $0.001 per share,
at a minimum market price of $_______ per share. Sales should begin on the date of this Notice and shall continue until [DATE]
[all shares are sold][the aggregate sales price of the shares reaches $[ ]].


 


[Add calculation of
fees, commissions and expenses]


 


 


 


 


 


 


 


 


 


 






    	 	 	 



     

    

 


SCHEDULE 2


 


Notice Parties


 


The Company


 


	James Joyce	jj@aethlonmedical.com




 


	James Frakes	jfrakes@aethlonmedical.com




 


 


HCW


 


	Michael Vasinkevich 	mv@hcwco.com




 


	Craig Schwabe	cs@hcwco.com




 


	Peter Fry	pfry@hcwco.com




 


	Charles Worthman 	csworthman@hcwco.com




 


	Norman Yun 	nyun@hcwco.com




 


With a copy to atm@hcwco.com


 


 


 


 






    	 	 	 



     

    

 


SCHEDULE 3


 


Compensation


 


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


 


 


 


 


 


 


 


 


 


 






    	 	 	 



     

    

 


SCHEDULE 4


 


Section 6(b):


 


Documents required to be filed as exhibits
to 10-K:


 


Stock Option Agreement by and between Aethlon
Medical, Inc. and Richard Tullis dated September 27, 2010


 


Stock Option Agreement by and between Aethlon
Medical, Inc. and Richard Tullis dated July 1, 2013


 


Stock Option Agreement by and between Aethlon
Medical, Inc. and Richard Tullis dated June 6, 2014


 


Amendment No. 1 to Stock Option Agreement
by and between Aethlon Medical, Inc. and Richard Tullis dated December 15, 2008


 


Amendment No. 1 to Stock Option Agreement
by and between Aethlon Medical, Inc. and Richard Tullis dated September 27, 2010


 


Amendment No. 1 to Stock Option Agreement
by and between Aethlon Medical, Inc. and Richard Tullis dated July 1, 2013


 


Amendment No. 1 to Stock Option Agreement
by and between Aethlon Medical, Inc. and Richard Tullis dated June 6, 2014


 


 


Section 6(m)


 


November 26, 2014 Investment Transaction.


 


On November 26, 2014, the Company and certain
investors entered into a Securities Purchase Agreement (the “November SPA”) whereby the Company issued and sold to
the Investors shares of the Company’s Common Stock and warrants to purchase shares of Common Stock.


 


Section 7.14 of the November SPA provides
the investors with a right of participation in offerings of securities by the Company that occur subsequent to the November SPA.
This participation right may be triggered by the Common Stock Sales Agreement. The Company has obtained a waiver of these participation
rights from the investors in connection with the Common Stock Sales Agreement.


 


Section 7.9(b) of the November SPA provides
for restrictions on certain types of capital raising programs which may include the transactions contemplated by the Common Stock
Sales Agreement. The Company has obtained a waiver of this restriction and the consent of the investors to enter into the Common
Stock Sales Agreement.


 






    	 	 	 



     

    

 


June 23, 2015 Investment Transaction.


 


On June 23, 2015, the Company and certain
investors entered into a Securities Purchase Agreement (the “June SPA”) whereby the Company issued and sold to the
Investors shares of the Company’s Common Stock and warrants to purchase shares of Common Stock.


 


Section 7.14 of the June SPA provides the
investors with a right of participation in offerings of securities by the Company that occur subsequent to the June SPA. This participation
right may be triggered by the Common Stock Sales Agreement. The Company has obtained a waiver of these participation rights from
the requisite investors in connection with the Common Stock Sales Agreement.


 


Section 7.9(b) of the June SPA provides
for restrictions on certain types of capital raising programs which may include the transactions contemplated by the Common Stock
Sales Agreement. The Company has obtained a waiver of this restriction and the consent of the requisite investors to enter into
the Common Stock Sales Agreement.


 


Section 7.9(e) of the June SPA requires
the consent of the investors prior to the issuance by the Company of Common Stock or securities convertible into, exchangeable
for, or exercisable for Common Stock, at price per share below $6.30. The Company has obtained a waiver of this restriction and
the consent of the requisite investors to enter into the Common Stock Sales Agreement which may facilitate sales of Common Stock
below $6.30 per share.


 


 


 


 






    	 	 	 



     

    

 


Exhibit 7(m) 


 


OFFICER CERTIFICATE


 


The undersigned, the duly qualified and
elected _______________________ of Aethlon Medical, Inc. (“Company”), a Nevada corporation, does
hereby certify in such capacity and on behalf of the Company, pursuant to Section 7(m) of the Sales Agreement dated June
28, 2016 (the “Sales Agreement”) between the Company and H.C. Wainwright & Co., LLC, that to the
best of the knowledge of the undersigned:


 


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


 


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


 


Capitalized terms used
but not defined herein shall have the meanings ascribed to them in the Sales Agreement.


 


 


 


 


AETHLON MEDICAL, INC.


 


 


By:                                                                                


Name:


Title:


 


 


Date: