Exhibit 10.1


 


EXECUTION COPY


 


NOTE PURCHASE
AGREEMENT


 


This
Note Purchase Agreement (this “Agreement”) is dated as of June 20, 2016, by and among Marina Biotech, Inc.,
a Delaware corporation (the “Company”), on the one hand, and each purchaser identified on the signature pages
hereto (each, including its successors and assigns, a “Purchaser” and collectively the “Purchasers”),
on the other hand.


 


WHEREAS,
subject to the terms and conditions set forth in this Agreement, the Company desires to issue and sell to each Purchaser, and
each Purchaser, severally and not jointly, desires to purchase from the Company, Notes as more fully described in this Agreement.


 


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


 


ARTICLE I.


DEFINITIONS


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Closing
Date” means the third day following the date hereof or such earlier day as agreed to by the parties.


 


“Commission”
means the Securities and Exchange Commission.


 


“Common Stock”
means the common stock of the Company, par value $0.006 per share, and any other class of securities into which such securities
may hereafter be reclassified or changed into.


 


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


 


“Company
Counsel” means Pryor Cashman LLP, with offices located at 7 Time Square, New York, New York 10036-6569.


 




     


     


    

 


“Delay Payments”
shall have the meaning ascribed to such term in Section 4.2(b).


 


“Disclosure
Schedules” means, if disclosure schedules of the Company are delivered concurrently herewith, such disclosure schedules.


 


“Effectiveness
Deadline” shall have the meaning ascribed to such term in Section 4.2(a).


 


“Effectiveness
Failure” shall have the meaning ascribed to such term in Section 4.2(b).


 


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


 


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


 


“Exempt Issuance”
means the issuance of (a) shares of Common Stock or options to employees, officers or directors of the Company pursuant to
any stock or option plan duly adopted for such purpose, by a majority of the non-employee members of the Board of Directors or
a majority of the members of a committee of non-employee directors established for such purpose, up to a maximum of five percent
(5%) of the number of shares of Common Stock issued and outstanding on the date of this Agreement; (b) securities upon the
exercise or exchange of or conversion of the Notes issued hereunder and/or other securities exercisable or exchangeable for or
convertible into shares of Common Stock issued and outstanding on the date of this Agreement as set forth on Schedule 3.1(g);
(c) securities issued in satisfaction of trade accounts payable and other financial obligations of the Company directly to the
obligees thereof, up to a maximum of five percent (5%) of the number of shares of Common Stock issued and outstanding on the date
of this Agreement, provided that any shares of Common Stock are valued at a price that is not less than the closing price of the
Common Stock on the date immediately prior to the date on which a definitive agreement is entered into relating to the issuance
of such shares; (d) securities issued as Additional Payment Shares pursuant to that certain Asset Purchase Agreement dated as
of July 27, 2010 between and among the Company, Novosom AG and Steffen Panzner, Ph.D.; and (e) securities issued to Turing Pharmaceuticals
AG in connection with the proposed transaction described in the Current Report on Form 8-K filed by the Company with the Commission
on May 4, 2016.


 


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


 


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


 


“Filing Deadline”
shall have the meaning ascribed to such term in Section 4.2(a).


 


“Filing Failure”
shall have the meaning ascribed to such term in Section 4.2(b).


 


“Financing
Transaction” means any sale (or series of related sales) by the Company of Common Stock or Common Stock Equivalents
following the date of this Agreement primarily for capital raising purposes. For the avoidance of doubt, an Exempt Issuance shall
not be a Financing Transaction, except that any capital raising transaction effected in connection with an Exempt Transaction
shall be treated as a separate Financing Transaction and not part of an Exempt Issuance.


 


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


 


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


 


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


 


“Liens”
means a lien, charge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.


 


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


 




     


     


    

 


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


 


“Notes”
means all of the Promissory Notes issued to the Purchasers pursuant to this Agreement, which Notes shall be in the form of Exhibit
A attached hereto.


 


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


 


“Pharmaceutical
Product” shall have the meaning ascribed to such term in Section 3.1(dd).


 


“Prior Purchase
Agreement” means that certain Note and Warrant Purchase Agreement, dated as of February 10, 2012, by and among the Company,
MDRNA Research, Inc., Cequent Pharmaceuticals, Inc. and the purchasers identified on the signature pages thereto, as it has been
amended to date.


 


“Proceeding”
means an action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation or partial
proceeding, such as a deposition), whether commenced or threatened.


 


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


 


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


 


“Restated
Warrants” shall mean the Warrants as amended and restated pursuant to Section 4.1 of this Agreement.


 


“Rule 144”
means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule.


 


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


 


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


 


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


 


“Subsidiary”
means any subsidiary of the Company as set forth on Schedule 3.1(a) , and shall, where applicable, also include any direct
or indirect subsidiary of the Company formed or acquired after the date hereof.


 


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


 


“Trading
Market” means the following markets, exchanges or listing platforms on which the Common Stock is listed or quoted for
trading on the date in question: the NYSE MKT, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market,
the New York Stock Exchange or the OTC Markets Group (other than OTC Pink).


 


“Transaction
Documents” means this Agreement, the Notes and any other documents or agreements executed in connection with the transactions
contemplated hereunder.


 




     


     


    

 


“Warrants”
means, collectively, the warrants to purchase up to an aggregate of 11,890,792 shares of Common Stock that were delivered to the
purchasers pursuant to the Prior Purchase Agreement and all amendments thereto.


 


“Warrant
Shares” means the shares of Common Stock issuable upon exercise or conversion of the Warrants.


 


ARTICLE II.

PURCHASE AND SALE


 


2.1          Closing.
On the Closing Date, the Company shall sell, and the Purchasers, severally and not jointly, shall purchase, Notes in the aggregate
principal amount of $300,000. Each Purchaser shall deliver to the Company, via wire transfer of immediately available funds equal
to such Purchaser’s Subscription Amount
as set forth on the signature page hereto executed by such Purchaser and the Company shall deliver to each Purchaser its
respective Note, and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the
Closing. The Closing shall occur at the offices of the Company’s
counsel or such other location as the parties shall mutually agree.


 


2.2          Deliveries.


 


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


 


(i)           this
Agreement duly executed by the Company;


 


(ii)          a
Note registered in the name of such Purchaser in the aggregate principal amount of 100% of such Purchaser’s Subscription
Amount (such Note may be delivered within three Trading Days of the Closing Date); and


 


(iii)         the
Restated Warrants in the name of such Purchaser (or such Person as directed by such Purchaser in writing) duly executed by the
Company (provided that the Restated Warrants may be delivered promptly, but no more than five (5) Business Days, following the
Closing Date).


 


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


 


(i)           this
Agreement duly executed by such Purchaser;


 


(ii)          such
Purchaser’s Subscription Amount by wire transfer to the account as specified in writing by the Company; and


 


(iii)         the
Warrants being exchanged for the Restated Warrants (which Warrants may be delivered promptly, but no more than five (5) Business
Days, following the Closing Date).


 


ARTICLE III.

REPRESENTATIONS AND WARRANTIES


 


3.1          Representations
and Warranties of the Company. Except as set forth in the Disclosure Schedules, which Disclosure Schedules shall be deemed
a part hereof and shall qualify any representation or otherwise made herein to the extent of the disclosure contained in the corresponding
section of the Disclosure Schedules, the Company hereby makes the following representations and warranties to each Purchaser:


 


(a)          Subsidiaries.
All of the direct and indirect subsidiaries of the Company are set forth on Schedule 3.1(a). The Company owns, directly
or indirectly, all of the capital stock or other equity interests


 




     


     


    

 


of each Subsidiary free and clear of any
Liens, and all of the issued and outstanding shares of capital stock of each Subsidiary are validly issued and are fully paid,
non-assessable and free of preemptive and similar rights to subscribe for or purchase securities. If the Company has no subsidiaries,
then all other references to the Subsidiaries or any of them in the Transaction Documents shall be disregarded. Except for the
Subsidiaries, there are no Persons in which the Company has an equity interest or whose financial statements are required by GAAP
to be included as part of the Company’s consolidated financial statements or with respect to which the Company or any other
Subsidiary has made loans or advances or guaranteed obligations.


 


(b)          Organization
and Qualification. The Company and each of the Subsidiaries is an entity duly incorporated or otherwise organized, validly
existing and in good standing under the laws of the jurisdiction of its incorporation or organization (as applicable), with the
requisite power and authority to own and use its properties and assets and to carry on its business as currently conducted. Neither
the Company nor any Subsidiary is in violation nor default of any of the provisions of its respective certificate or articles
of incorporation, bylaws or other organizational or charter documents. Each of the Company and the Subsidiaries is duly qualified
to conduct business and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature
of the business conducted or property owned by it makes such qualification necessary, except where the failure to be so qualified
or in good standing, as the case may be, could not have or reasonably be expected to result in (i) a material adverse effect
on the legality, validity or enforceability of any Transaction Document, (ii) a material adverse effect on the results of
operations, assets, business, prospects or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a
whole, or (iii) a material adverse effect on the Company’s ability to perform in any material respect on a timely basis
its obligations under any Transaction Document (any of (i), (ii) or (iii), a “Material Adverse Effect”)
and no Proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or
curtail such power and authority or qualification or seeking to prohibit or restrict the Company from performing its obligations
under the Transaction Documents.


 


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


 


(d)          No
Conflicts. The execution, delivery and performance by the Company of the Transaction Documents, the issuance and sale of the
Notes and the consummation by it of the Transaction Documents to which it is a party of the other transactions contemplated hereby
and thereby do not and will not (i) conflict with or violate any provision of the Company’s or any Subsidiary’s
certificate or articles of incorporation, bylaws or other organizational or charter documents, (ii) conflict with, or constitute
a default (or an event that with notice or lapse of time or both would become a default) under, result in the creation of any
Lien upon any of the properties or assets of the Company or any Subsidiary, or give to others any rights of termination, amendment,
acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other
instrument (evidencing a Company or Subsidiary debt or otherwise) or other understanding to which the Company or any Subsidiary
is a party or by which any property or asset of the Company or any Subsidiary is bound or affected, or (iii) subject to the
Required Approvals, conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction,


 




     


     


    

 


decree or other restriction of any court
or governmental authority to which the Company or a Subsidiary is subject (including federal and state securities laws and regulations),
or by which any property or asset of the Company or a Subsidiary is bound or affected; except in the case of each of clauses (ii) and
(iii), such as could not have or reasonably be expected to result in a Material Adverse Effect.


 


(e)          Filings,
Consents and Approvals. Neither the Company nor any Subsidiary is required to obtain any consent, waiver, authorization or
order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental
authority or other Person in connection with the execution, delivery and performance by the Company or such Subsidiary of the
Transaction Documents, other than (i) the filings required pursuant to Section 4.4 of this Agreement and (ii) such filings
as are required to be made under applicable federal and state securities laws, including the filing of a Notice of Exempt Offering
of Securities on Form D (collectively, the “Required Approvals”).


 


(f)           Intentionally
Deleted.


 


(g)          Capitalization.
Except as set forth on Schedule 3.1(g) of the Disclosure Schedule, the Company has not issued any capital stock since its
most recently filed periodic report under the Exchange Act, other than pursuant to the exercise of employee stock options under
the Company’s stock option plans as set forth on said Schedule 3.1(g), the issuance of shares of Common Stock to
employees pursuant to the Company’s employee stock purchase plans and pursuant to the conversion and/or exercise of Common
Stock Equivalents outstanding as of the date of the most recently filed periodic report under the Exchange Act, all of which are
set forth on Schedule 3.1(g). No Person has any right of first refusal, preemptive right, right of participation, or any
similar right to participate in the transactions contemplated by the Transaction Documents that have not been fully satisfied.
Except as a result of the purchase and sale of the Notes, and other than as set forth in Schedule 3.1(g), there are no
outstanding options, warrants, scrip rights to subscribe to, calls or commitments of any character whatsoever relating to, or
securities, rights or obligations convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe
for or acquire any shares of Common Stock, or contracts, commitments, understandings or arrangements, whether oral or in writing,
by which the Company or any Subsidiary is or may become bound to issue additional shares of Common Stock or Common Stock Equivalents.
Except as set forth on Schedule 3.1(g) of the Disclosure Schedule, the issuance and sale of the Notes will not obligate
the Company to issue shares of Common Stock or other securities to any Person (other than the Purchasers) and will not result
in a right of any holder of Company securities to adjust the exercise, conversion, exchange or reset price under any of such securities.
All of the outstanding shares of capital stock of the Company are validly issued, fully paid and nonassessable, have been issued
in compliance with all federal and state securities laws, and none of such outstanding shares was issued in violation of any preemptive
rights or similar rights to subscribe for or purchase securities or any contractual rights granted to any other Person. No further
approval or authorization of any stockholder, the Board of Directors or others is required for the issuance and sale of the Notes.
There are no stockholders agreements, voting agreements or other similar agreements with respect to the Company’s capital
stock to which the Company is a party or, to the knowledge of the Company, between or among any of the Company’s stockholders.


 


(h)          SEC
Reports; Financial Statements. The Company has filed all reports, schedules, forms, statements and other documents required
to be filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof,
for the two years preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such
material) (the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, being collectively
referred to herein as the “SEC Reports”) on a timely basis or has received a valid extension of such time of
filing and has filed any such SEC Reports prior to the expiration of any such extension. As of their respective dates, the SEC
Reports complied in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable, and
none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they
were made, not misleading. The Company has never been an issuer subject to Rule 144(i)(i) under the Securities Act. The financial
statements of the Company included in the SEC Reports comply in all material respects with applicable accounting requirements
and the rules and regulations of the Commission with respect


 




    	 	 



     


    

 


thereto as in effect at the time of filing.
Such financial statements have been prepared in accordance with United States generally accepted accounting principles applied
on a consistent basis during the periods involved (“GAAP”), except as may be otherwise specified in such financial
statements or the notes thereto and except that unaudited financial statements may not contain all footnotes required by GAAP,
and fairly present in all material respects the financial position of the Company and its consolidated subsidiaries as of and
for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited
statements, to normal, immaterial, year-end audit adjustments.


 


(i)           Material
Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest audited financial statements included
within the SEC Reports, except as specifically disclosed in a subsequent SEC Report filed prior to the date hereof: (i) there
has been no event, occurrence or development that has had or that could reasonably be expected to result in a Material Adverse
Effect, (ii) the Company has not incurred any liabilities (contingent or otherwise) other than (A) trade payables and
accrued expenses incurred in the ordinary course of business consistent with past practice and (B) liabilities not required to
be reflected in the Company’s financial statements pursuant to GAAP or disclosed in filings made with the Commission, (iii) the
Company has not altered its method of accounting, (iv) the Company has not declared or made any dividend or distribution
of cash or other property to its stockholders or purchased, redeemed or made any agreements to purchase or redeem any shares of
its capital stock and (v) the Company has not issued any equity securities to any officer, director or Affiliate, except
pursuant to existing Company stock option plans. The Company does not have pending before the Commission any request for confidential
treatment of information. Except for the issuance of the Notes contemplated by this Agreement, no event, liability or development
has occurred or exists with respect to the Company or its Subsidiaries or their respective business, properties, operations or
financial condition, that would be required to be disclosed by the Company under applicable securities laws at the time this representation
is made or deemed made that has not been publicly disclosed at least 1 Trading Day prior to the date that this representation
is made.


 


(j)           Litigation.
There is no action, suit, inquiry, notice of violation, proceeding or investigation pending or, to the knowledge of the Company
or any Subsidiary, threatened against or affecting the Company, any Subsidiary or any of their respective properties before or
by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign)
(collectively, an “Action”) which (i) adversely affects or challenges the legality, validity or enforceability
of any of the Transaction Documents or the Notes or (ii) could, if there were an unfavorable decision, have or reasonably
be expected to result in a Material Adverse Effect. Neither the Company nor any Subsidiary, nor any director or officer thereof,
is or has been the subject of any Action involving a claim of violation of or liability under federal or state securities laws
or a claim of breach of fiduciary duty. There has not been, and to the knowledge of the Company, there is not pending or contemplated,
any investigation by the Commission involving the Company or any current or former director or officer of the Company. The Commission
has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company or
any Subsidiary under the Exchange Act or the Securities Act.


 


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


 




    	 	 



     


    

 


wages and hours, except where the failure
to be in compliance could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.


 


(l)           Compliance.
Neither the Company nor any Subsidiary: (i) is in default under or in violation of (and no event has occurred that has not
been waived that, with notice or lapse of time or both, would result in a default by the Company or any Subsidiary under), nor
has the Company or any Subsidiary received notice of a claim that it is in default under or that it is in violation of, any indenture,
loan or credit agreement or any other agreement or instrument to which it is a party or by which it or any of its properties is
bound (whether or not such default or violation has been waived), (ii) is in violation of any order of any court, arbitrator
or governmental body or (iii) is or has been in violation of any statute, rule or regulation of any governmental authority,
including without limitation all foreign, federal, state and local laws applicable to its business and all such laws that affect
the environment, except in each case as could not have or reasonably be expected to result in a Material Adverse Effect.


 


(m)         Regulatory
Permits. The Company and the Subsidiaries possess all certificates, authorizations and permits issued by the appropriate federal,
state, local or foreign regulatory authorities necessary to conduct their respective businesses as described in the SEC Reports,
except where the failure to possess such permits could not reasonably be expected to result in a Material Adverse Effect (“Material
Permits”), and neither the Company nor any Subsidiary has received any notice of proceedings relating to the revocation
or modification of any Material Permit.


 


(n)          Title
to Assets. The Company and the Subsidiaries have good and marketable title in all personal property owned by them that is
material to the business of the Company and the Subsidiaries, in each case free and clear of all Liens, except for Liens as do
not materially affect the value of such property and do not materially interfere with the use made and proposed to be made of
such property by the Company and the Subsidiaries and Liens for the payment of federal, state or other taxes, the payment of which
is neither delinquent nor subject to penalties. Any real property and facilities held under lease by the Company and the Subsidiaries
are held by them under valid, subsisting and enforceable leases with which the Company and the Subsidiaries are in compliance.
Neither the Company nor any Subsidiary owns any real property.


 


(o)          Patents
and Trademarks. The Company and the Subsidiaries have, or have rights to use, all patents, patent applications, trademarks,
trademark applications, service marks, trade names, trade secrets, inventions, copyrights, licenses and other intellectual property
rights and similar rights necessary or material for use in connection with their respective businesses as described in the SEC
Reports and which the failure to so have could have a Material Adverse Effect (collectively, the “Intellectual Property
Rights”). Neither the Company nor any Subsidiary has received a notice (written or otherwise) that any of the Intellectual
Property Rights used by the Company or any Subsidiary violates or infringes upon the rights of any Person. To the knowledge of
the Company, all such Intellectual Property Rights are enforceable and there is no existing infringement by another Person of
any of the Intellectual Property Rights. The Company and its Subsidiaries have taken reasonable security measures to protect the
secrecy, confidentiality and value of all of their intellectual properties, except where failure to do so could not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect.


 


(p)          Insurance.
The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks
and in such amounts as are prudent and customary in the businesses in which the Company and the Subsidiaries are engaged, including,
but not limited to, directors and officers insurance coverage at least equal to the aggregate Subscription Amount.


 


(q)          Transactions
With Affiliates and Employees. Except as set forth in the SEC Reports, none of the officers or directors of the Company and,
to the knowledge of the Company, none of the employees of the Company is presently a party to any transaction with the Company
or any Subsidiary (other than for services as employees, officers and directors), including any contract, agreement or other arrangement
providing for the furnishing of services to or by, providing for rental of real or personal property to or from, or otherwise
requiring payments to or from any officer, director or such employee or, to the knowledge of the Company, any entity in which
any officer, director, or any such employee has a


 




    	 	 



     


    

 


substantial interest or is an officer,
director, trustee or partner, in each case in excess of $50,000 other than for (i) payment of salary or consulting fees for
services rendered as described in the SEC Reports, (ii) reimbursement for expenses incurred on behalf of the Company in accordance
with the Company’s expense reimbursement policies and (iii) other employee benefits, including stock option agreements
under any stock option plan of the Company as disclosed in the SEC Reports.


 


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


 


(s)          Certain
Fees. No brokerage or finder’s fees or commissions are or will be payable by the Company to any broker, financial advisor
or consultant, finder, placement agent, investment banker, bank or other Person with respect to the transactions contemplated
by the Transaction Documents. The Purchasers shall have no obligation with respect to any fees or with respect to any claims made
by or on behalf of other Persons for fees of a type contemplated in this Section that may be due in connection with the transactions
contemplated by the Transaction Documents.


 


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


 


(u)          Registration
Rights. Except as set forth on Schedule 3.1(u) to the Disclosure Schedule, no Person has any right to cause the Company
to effect the registration under the Securities Act of any securities of the Company.


 


(v)          Listing
and Maintenance Requirements. The Common Stock is registered pursuant to Section 12(g) of the Exchange Act, and the Company
has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration of the
Common Stock under the Exchange Act nor has the Company received any notification that the Commission is contemplating terminating
such registration. The Company has not, in the 12 months preceding the date hereof, received notice from any Trading Market
on which the Common Stock is or has been listed or quoted to the effect that the Company is not in compliance with the listing
or maintenance requirements of such Trading Market.


 


(w)         Application
of Takeover Protections. The Company and the Board of Directors have taken all necessary action, if any, in order to render
inapplicable any control share acquisition, business combination, poison pill (including any distribution under a rights agreement)
or other similar anti-takeover


 




    	 	 



     


    

 


provision under the Company’s certificate
of incorporation (or similar charter documents) or the laws of its state of incorporation that is or could become applicable to
the Purchasers as a result of the Purchasers and the Company fulfilling its obligations or exercising its rights under the Transaction
Documents, including without limitation as a result of the Company’s issuance of the Notes and the Purchasers’ ownership
of the Notes.


 


(x)           Disclosure.
All disclosure furnished by or on behalf of the Company to the Purchasers regarding the Company, its business and the transactions
contemplated hereby, including the Disclosure Schedules to this Agreement, is true and correct and does not contain any untrue
statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in light
of the circumstances under which they were made, not misleading. The press releases disseminated by the Company during the twelve
months preceding the date of this Agreement taken as a whole do not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances
under which they were made and when made, not misleading. The Company acknowledges and agrees that no Purchaser makes or has made
any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth
in Section 3.2 hereof.


 


(y)          No
Integrated Offering. Assuming the accuracy of the Purchasers’ representations and warranties set forth in Section 3.2,
neither the Company, nor any of its Affiliates, nor any Person acting on its or their behalf has, directly or indirectly, made
any offers or sales of any security or solicited any offers to buy any security, under circumstances that would cause this offering
of the Notes to be integrated with prior offerings by the Company for purposes of any applicable shareholder approval provisions
of any Trading Market on which any of the securities of the Company are listed or designated. The issuance and sale of the Notes
hereunder does not contravene the rules and regulations of any Trading Market on which any of the securities of the Company are
listed or designated.


 


(z)           Indebtedness.
Schedule 3.1(z) sets forth as of the date thereof all outstanding secured and unsecured Indebtedness of the Company or
any Subsidiary, or for which the Company or any Subsidiary has commitments. For the purposes of this Agreement, “Indebtedness”
means: (a) any liabilities for borrowed money or amounts owed in excess of $60,000 (other than trade accounts payable incurred
in the ordinary course of business) which are not disclosed in the SEC Reports; (b) all guaranties, endorsements and other
contingent obligations in respect of indebtedness of others, whether or not the same are or should be reflected in the Company’s
balance sheet (or the notes thereto), except guaranties by endorsement of negotiable instruments for deposit or collection or
similar transactions in the ordinary course of business; and (c) the present value of any lease payments in excess of $50,000
due under leases required to be capitalized in accordance with GAAP.


 


(aa)        Tax
Status. Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result in a
Material Adverse Effect, the Company and each Subsidiary has filed all necessary federal, state and foreign income and franchise
tax returns and has paid or accrued all taxes shown as due thereon, and the Company has no knowledge of a tax deficiency which
has been asserted or threatened against the Company or any Subsidiary.


 


(bb)        Foreign
Corrupt Practices. Neither the Company, nor to the knowledge of the Company, any agent or other person acting on behalf of
the Company, has (i) directly or indirectly, used any funds for unlawful contributions, gifts, entertainment or other unlawful
expenses related to foreign or domestic political activity, (ii) made any payment to foreign or domestic government officials
or employees or to any foreign or domestic political parties or campaigns from corporate funds, (iii) failed to disclose
fully any contribution made by the Company (or made by any person acting on its behalf of which the Company is aware) which is
in violation of law, or (iv) violated in any material respect any provision of the Foreign Corrupt Practices Act of 1977,
as amended.


 


(cc)         Acknowledgment
Regarding Purchasers’ Purchase of Notes. The Company acknowledges and agrees that each Purchaser is acting solely in
the capacity of an arm’s length purchaser with respect to the Transaction Documents and the transactions contemplated thereby.
The Company


 




    	 	 



     


    

 


further acknowledges that no Purchaser
is acting as a financial advisor or fiduciary of the Company (or in any similar capacity) with respect to the Transaction Documents
and the transactions contemplated thereby and any advice given by any Purchaser or any of their respective representatives or
agents in connection with the Transaction Documents and the transactions contemplated thereby is merely incidental to the Purchasers’
purchase of the Notes.


 


(dd)        FDA.
As to each product subject to the jurisdiction of the U.S. Food and Drug Administration (“FDA”) under the Federal
Food, Drug and Cosmetic Act, as amended, and the regulations thereunder (“FDCA”) that is manufactured, packaged,
labeled, tested, distributed, sold, and/or marketed by the Company or any of its Subsidiaries (each such product, a “Pharmaceutical
Product”), such Pharmaceutical Product is being manufactured, packaged, labeled, tested, distributed, sold and/or marketed
by the Company in compliance with all applicable requirements under FDCA and similar laws, rules and regulations relating to registration,
investigational use, premarket clearance, licensure, or application approval, good manufacturing practices, good laboratory practices,
good clinical practices, product listing, quotas, labeling, advertising, record keeping and filing of reports, except where the
failure to be in compliance would not have a Material Adverse Effect. There is no pending, completed or, to the Company’s
knowledge, threatened, action (including any lawsuit, arbitration, or legal or administrative or regulatory proceeding, charge,
complaint, or investigation) against the Company or any of its Subsidiaries, and none of the Company or any of its Subsidiaries
has received any notice, warning letter or other communication from the FDA or any other governmental entity, which (i) contests
the premarket clearance, licensure, registration, or approval of, the uses of, the distribution of, the manufacturing or packaging
of, the testing of, the sale of, or the labeling and promotion of any Pharmaceutical Product, (ii) withdraws its approval
of, requests the recall, suspension, or seizure of, or withdraws or orders the withdrawal of advertising or sales promotional
materials relating to, any Pharmaceutical Product, (iii) imposes a clinical hold on any clinical investigation by the Company
or any of its Subsidiaries, (iv) enjoins production at any facility of the Company or any of its Subsidiaries, (v) enters
or proposes to enter into a consent decree of permanent injunction with the Company or any of its Subsidiaries, or (vi) otherwise
alleges any violation of any laws, rules or regulations by the Company or any of its Subsidiaries, and which, either individually
or in the aggregate, would have a Material Adverse Effect. The properties, business and operations of the Company have been and
are being conducted in all material respects in accordance with all applicable laws, rules and regulations of the FDA.  The
Company has not been informed by the FDA that the FDA will prohibit the marketing, sale, license or use in the United States of
any product proposed to be developed, produced or marketed by the Company nor has the FDA expressed any concern as to approving
or clearing for marketing any product being developed or proposed to be developed by the Company.


 


(ee)         None
of the Company, and of its predecessors, any affiliated entity, any manager, member, director, executive officer, other officer
of the Company or such Affiliate participating in the financing contemplated by the Transaction Documents, any beneficial owner
of 20% or more of the Company’s outstanding voting equity securities, calculated on the basis of voting power, nor any promoter
(as that term is defined in Rule 405 under the Securities Act) connected with the Company in any capacity at the date of this
Agreement is subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii) promulgated
by the Commission under the Securities Act (a “Disqualification Event”), except for a Disqualification Event
covered by Rule 506(d)(2) or (d)(3).


 


3.2          Representations
and Warranties of the Purchasers. Each Purchaser, for itself and for no other Purchaser, hereby represents and warrants as
of the date hereof to the Company as follows:


 


(a)          Organization;
Authority. Such Purchaser, if such Purchaser not an individual, is an entity duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization with full right, corporate or partnership power and authority
to enter into and to consummate the transactions contemplated by the Transaction Documents and otherwise to carry out its obligations
hereunder and thereunder. The execution and delivery of the Transaction Documents and performance by such Purchaser of the transactions
contemplated by the Transaction Documents have been duly authorized by all necessary corporate or similar action on the part of
such Purchaser. Each Transaction Document to which it is a party has been duly executed by such Purchaser, and when delivered
by such Purchaser in accordance with the terms hereof, will constitute the valid and legally binding obligation of such Purchaser,


 




    	 	 



     


    

 


enforceable against it in accordance with
its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium
and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating
to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification
and contribution provisions may be limited by applicable law.


 


(b)          Understandings
or Arrangements. Such Purchaser is acquiring the Notes as principal for its own account
and has no direct or indirect arrangement or understandings with any other persons to distribute or regarding the distribution
of such Notes (this representation and warranty not limiting such Purchaser’s right to sell the Notes in compliance with
applicable federal and state securities laws). Such Purchaser is acquiring the Notes hereunder in the ordinary course of its business.
Nothing in this Section 3.2(b) shall be construed to prohibit such Purchaser from selling or otherwise transferring any Notes,
Warrants, or Warrant Shares in a transaction exempt from registration pursuant to the Securities Act or pursuant to a registration
statement, each of which shall be deemed a transfer to a permitted assignee.


 


(c)          Purchaser
Status. At the time such Purchaser was offered the Notes, it was, and as of the date hereof it is, either: (i) an “accredited
investor” as defined in Rule 501(a) or (ii) a “qualified institutional buyer” as defined in Rule 144A(a)
under the Securities Act. Such Purchaser is not required to be registered as a broker-dealer under Section 15 of the Exchange
Act.


 


(d)          Securities
Act; No General Solicitation. Such Purchaser, either alone or together with its representatives, has such knowledge, sophistication
and experience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment
in the Notes, and has so evaluated the merits and risks of such investment. Such Purchaser is able to bear the economic risk of
an investment in the Notes and, at the present time, is able to afford a complete loss of such investment.


 


(e)          Legend.
Such Purchaser understands that the certificates or instruments representing the Notes shall bear such legends as may be required
pursuant to federal or state securities laws.


 


ARTICLE IV.


OTHER AGREEMENTS OF THE PARTIES


 


4.1          Modification
of Warrants. The Company hereby agrees that, notwithstanding anything set forth in the Prior Purchase Agreement or in the
Warrants to the contrary: (i) the Termination Date (as defined in the Warrants) of all of the Warrants shall be, and hereby is,
extended to February 10, 2020; (ii) the anti-dilution protection afforded by Section 3(b) of the Warrants shall be, and hereby
is, extended to one day prior to one year anniversary of the date of this Agreement and shall apply to any Financing Transaction
effected by the Company during such period, with any such adjustment only applying to 80% of the Warrants outstanding on the date
of this Agreement. Promptly, but not more than five (5) Business Days following the Closing Date, the Company shall issue the
Restated Warrants in replacement of the existing Warrants, and such Purchaser shall deliver to the Company the existing Warrants
being replaced.


 


4.2          Registration
of Warrant Shares.


 


(a)          The
Company shall, within thirty (30) days following the date of this Agreement (such date, the “Filing Deadline”),
file with the Commission a registration statement (or an amendment to an existing registration statement) to register (or to maintain
the registration of) the resale of the Warrant Shares by the current holders of the Warrants on such form as the Company is eligible
to use for such registration, and shall use its best efforts to cause such registration statement to be declared effective by
the Commission within sixty (60) days of the filing thereof (the “Effectiveness Deadline”). The Company shall
use commercially reasonable efforts to keep such registration statement effective at all times and available for use by the holders
of the Warrants until the earlier of the time at which: (i) none of the holders of the Warrants as of the date of this Agreement
holds any Warrants or Warrant Shares; (ii) the Warrants have expired; or (iii) all of the Warrant Shares are eligible for resale
under Rule 144 without limitation thereunder on volume or manner of sale (assuming the cashless exercise of the Warrants).


 




    	 	 



     


    

 


(b)          If
the registration statement referenced in Section 4.2(a) (or an amendment to an existing registration statement as contemplated
by Section 4.2(a)): (i) is not filed with the Commission on or before the Registration Deadline (a “Filing Failure”),
or (ii) is not declared effective by the Commission on or before the Effectiveness Deadline (an “Effectiveness Failure”),
then, as partial relief for the damages to any Purchaser by reason of any such delay in its ability to sell the Warrant Shares
(which remedy shall not be exclusive of any other remedies available at law or in equity), the Company shall pay to each Purchaser
an amount in cash equal to five percent (5%) of the purchase price paid by such Purchaser for the Notes purchased by such Purchaser
pursuant to this Agreement (x) on the date of such Filing Failure or Effectiveness Failure, as applicable, and (y) on every thirty
(30) day anniversary of (A) a Filing Failure until such Filing Failure is cured and (B) an Effectiveness Failure until such Effectiveness
Failure is cured (such payments being referred to herein as “Delay Payments”); provided, that the aggregate
amount of Delay Payments that would be due by the Company to the Purchasers pursuant to this Section 4.2(b) shall not exceed the
aggregate Subscription Amount paid by the Purchasers pursuant to this Agreement. Following the initial Delay Payment for any particular
event or failure, if an event or failure giving rise to the Delay Payments is cured prior to any thirty (30) day anniversary of
such event or failure, then such Delay Payment shall be made on the third Trading Day after such cure (pro-rated for the number
of days elapsed between the date on which the most recent Delay Payment was required to have been paid in accordance with this
Section 4.2(b) and the date of cure). In the event that the Company is required to make any Delay Payments pursuant to this Section
4.2(b), the Company may, with the consent of the Purchasers, satisfy such payment obligation by issuing to the Purchasers (on
a pro rata basis) such number of shares of Common Stock as is equal to the quotient obtained by dividing (I) the aggregate amount
of Delay Payments owed to the Purchasers by (II) the closing price of the Common Stock on the Trading Market on the Trading Day
on which such Delay Payments are due. Any cash payments made by the Company and received by the Purchasers pursuant to this Section
4.2(b) as a result of a Filing Failure or an Effectiveness Failure shall be applied to the repayment of the Notes, with such payments
being applied first to accrued interest and then to principal.


 


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


 


4.4          Securities
Laws Disclosure; Publicity. The Company shall, not later than the fourth Trading Day following the date hereof, issue a press
release and file a Current Report on Form 8-K, disclosing the material terms of the transactions contemplated hereby. The Company
and each Purchaser shall consult with each other in issuing any other press releases with respect to the transactions contemplated
hereby, and neither the Company nor any Purchaser shall issue any such press release nor otherwise make any such public statement
(other than filings with the Commission by any Purchaser) without the prior consent of the Company, with respect to any press
release of any Purchaser, or without the prior consent of each Purchaser, with respect to any press release of the Company, which
consent shall not unreasonably be withheld or delayed, except if such disclosure is required by law, in which case the disclosing
party shall promptly provide the other party with prior notice of such public statement or communication. Notwithstanding the
foregoing, the Company shall not publicly disclose the name of any Purchaser, or include the name of any Purchaser in any filing
with the Commission or any regulatory agency or Trading Market, without the prior written consent of such Purchaser, except (a)
as required by federal securities law in connection with the filing of final Transaction Documents (including signature pages
thereto) with the Commission and (b) to the extent such disclosure is required by law or Trading Market regulations, in which
case the Company shall provide the Purchasers with prior notice of such disclosure permitted under this clause (b).


 


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


 




    	 	 



     


    

 


purchasing Notes under the Transaction
Documents or under any other agreement between the Company and the Purchasers. The Company acknowledges that the sale of the Notes
and the issuance of the Restated Warrants has been approved by the Board of Directors prior to the issuance thereof.


 


4.6          Non-Public
Information. Except with respect to the material terms and conditions of the transactions contemplated by the Transaction
Documents, the Company covenants and agrees that neither it nor any other Person acting on its behalf will provide any Purchaser
or its agents or counsel with any information that the Company believes constitutes material non-public information, unless prior
thereto and after the date hereof, such Purchaser shall have executed a written agreement regarding the confidentiality and use
of such information. The Company understands and confirms that each Purchaser shall be relying on the foregoing covenant in effecting
transactions in securities of the Company.


 


4.7          Use
of Proceeds. The Company shall use the net proceeds from the sale of the Notes hereunder for working capital purposes, and
shall not be used for (a) the redemption of any Common Stock or Common Stock Equivalents or (b) the settlement of any
outstanding litigation.


 


4.8          Indemnification
of Purchasers. Subject to the provisions of this Section 4.8, the Company will indemnify and hold each Purchaser and
its directors, officers, shareholders, members, partners, employees and agents (and any other Persons with a functionally equivalent
role of a Person holding such titles notwithstanding a lack of such title or any other title), each Person who controls such Purchaser
(within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers,
shareholders, agents, members, partners or employees (and any other Persons with a functionally equivalent role of a Person holding
such titles notwithstanding a lack of such title or any other title) of such controlling persons (each, a “Purchaser
Party”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses,
including all judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees and costs of investigation
that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations,
warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any
action instituted against a Purchaser in any capacity, or any of them or their respective Affiliates, by any stockholder of the
Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents
(unless such action is based upon a breach of such Purchaser’s representations, warranties or covenants under the Transaction
Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser
of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct
or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant
to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to
assume the defense thereof with counsel of its own choosing reasonably acceptable to the Purchaser Party. Any Purchaser Party
shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has
been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to
assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel
of the Purchaser Party, a material conflict on any material issue between the position of the Company and the position of such
Purchaser Party, in which case the Company shall be responsible for the reasonable fees and expenses of no more than one such
separate counsel. The Company will not be liable to any Purchaser Party under this Agreement (y) for any settlement by a Purchaser
Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (z) to
the extent, but only to the extent that a loss, claim, damage or liability is attributable solely to any Purchaser Party’s
breach of any of the representations, warranties, covenants or agreements made by such Purchaser Party in this Agreement or in
the other Transaction Documents as determined by a court order, final beyond right of review, all time for appeal having lapsed.


 


4.9          Listing
of Common Stock. As long as the Notes, the Restated Warrants and the Warrant Shares are outstanding (and, with respect to
the Warrant Shares, are held by the Purchasers or any transferee of the Purchasers): (i) the Company shall maintain the listing
of the Common Stock on a Trading


 




    	 	 



     


    

 


Market; (ii) the Company will take all
action reasonably necessary to continue the listing and trading of its Common Stock on a Trading Market; and (iii) will comply
in all respects with the Company’s reporting, filing and other obligations under the bylaws or rules of the Trading Market.


 


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


 


4.11        Delivery
of Notes and Restated Warrants. The Company shall deliver, or cause to be delivered, the respective Notes purchased by each
Purchaser to such Purchaser on the Closing Date. The Company shall deliver, or cause to be delivered, the Restated Warrants promptly,
but not more than five (5) Business Days, following the Closing Date. The Purchasers shall deliver to the Company the Warrants
being replaced by the Restated Warrants promptly, but not more than five (5) Business Days, following the Closing Date.


 


4.12        SEC
Filings. As long as any Notes, Restated Warrants or Warrant Shares are outstanding (and, with respect to the Warrant Shares,
are held by the Purchasers or any transferee of the Purchasers), the Company shall timely file all reports required to be filed
pursuant to Section 13(a) or Section 15(d) of the Exchange Act. A filing on Form 10-K of Form 10-Q shall be deemed to be timely
filed if an extension is timely filed pursuant to Rule 12b-25 of the Exchange Act and the Form 10-K or Form 10-Q is filed not
later than the applicable required filing date determined pursuant to said Rule 12b-25.


 


ARTICLE V.


MISCELLANEOUS


 


5.1          Termination. 
This Agreement may be terminated by any Purchaser, as to such Purchaser’s obligations hereunder only and without any effect
whatsoever on the obligations between the Company and the other Purchasers, by written notice to the other parties, if the Closing
has not been consummated on or before June 30, 2016; provided, however, that no such termination will affect the
right of any party to sue for any breach by the other party (or parties).


 


5.2          Fees
and Expenses. Except as expressly set forth in the Transaction Documents to the contrary, each party shall pay the fees and
expenses of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident
to the negotiation, preparation, execution, delivery and performance of this Agreement. The Company shall pay all fees, stamp
taxes and other taxes and duties, if any, levied in connection with the delivery of the Notes to the Purchasers.


 


5.3          Entire
Agreement. The Transaction Documents, together with the exhibits and schedules thereto, contain the entire understanding of
the parties with respect to the subject matter hereof and supersede all prior and contemporaneous agreements and understandings,
oral or written, with respect to such matters, which the parties acknowledge have been merged into such documents, exhibits and
schedules, provided that the foregoing shall not have any effect on any agreements any Purchaser has entered into with the Company
or any of its Subsidiaries prior to the date hereof with respect to any prior investment made by such Purchaser in the Company.


 


5.4          Notices.
Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and
shall be deemed given and effective on the earliest of (a) the date of transmission, if such notice or communication is delivered
via facsimile at the facsimile number set forth on the signature pages attached hereto prior to 5:30 p.m. (New York City time)
on a Trading Day, (b) the next Trading Day after the date of transmission, if such notice or communication is delivered via
facsimile at the facsimile number set forth on the signature pages attached hereto on a day 


 




    	 	 



     


    

 


that is not a Trading Day or later than
5:30 p.m. (New York City time) on any Trading Day, (c) the 2nd Trading Day following the date of mailing, if sent by U.S.
nationally recognized overnight courier service, or (d) upon actual receipt by the party to whom such notice is required
to be given. The address for such notices and communications shall be as set forth on the signature pages attached hereto. Notwithstanding
the foregoing, notice by facsimile shall not be deemed received prior to acknowledgement of receipt.


 


5.5          Amendments;
Waivers. No provision of this Agreement may be waived or amended except in a written instrument signed by the Company and
Purchasers accounting for at least 85% of the aggregate principal amount of all Notes then outstanding; except that no waiver
or amendment to the Notes or Restated Warrants, or Section 4 or Section 5 of this Agreement, shall be effective with respect to
any Purchaser who did not expressly agree to such amendment. No waiver of any default with respect to any provision, condition
or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default
or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise
any right hereunder in any manner impair the exercise of any such right.


 


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


 


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


 


5.8          No
Third-Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective successors
and permitted assigns and is not for the benefit of, nor may any provision hereof be enforced by, any other Person, except as
otherwise set forth in Section 4.8. For the avoidance of doubt, in the event of (a) any transfer of Notes or Replacement
Warrants by the Purchasers or (b) any transfer of Warrant Shares by the Purchasers in a transaction whereby the transferee receives
restricted securities, as defined in Rule 144, the transferees of the Purchasers shall be permitted assigns and third-party beneficiaries
and shall be entitled to the benefits of this Agreement with the same effect as if they were named as Purchasers hereunder.


 


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


 




    	 	 



     


    

 


proceeding shall be reimbursed by the
other party for its reasonable attorneys’ fees and other reasonable costs and expenses incurred with the investigation,
preparation and prosecution of such action or proceeding.


 


5.10        Survival.
The representations and warranties contained herein shall survive the Closing and the delivery of the Notes for the applicable
statute of limitations.


 


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


 


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


 


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


 


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


 


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


 


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


 




    	 	 



     


    

 


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


 


5.18        Liquidated
Damages. The Company’s obligations to pay any partial liquidated damages or other amounts owing under the Transaction
Documents is a continuing obligation of the Company and shall not terminate until all unpaid partial liquidated damages and other
amounts have been paid notwithstanding the fact that the instrument or security pursuant to which such partial liquidated damages
or other amounts are due and payable shall have been canceled.


 


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


 


5.20        Construction.
The parties agree that each of them and/or their respective counsel has reviewed and had an opportunity to revise the Transaction
Documents and, therefore, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting
party shall not be employed in the interpretation of the Transaction Documents or any amendments hereto.


 


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


 


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


 


	MARINA BIOTECH, INC.	 	Address for Notice:
	 	 	 	P.O. Box 1559
	 	 	 	Bothell, WA 98041
	By:	/s/ Joseph W. Ramelli	 	Fax:
	Name:    Joseph W. Ramelli	 	 
	Title:     Interim Chief Executive Officer	 	 


 


With a copy to (which shall not constitute notice):


 


Pryor Cashman LLP


7 Times Square


New York, NY 10036-6569


Attn: Lawrence Remmel


Fax: 212-798-6365


 


[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK;


SIGNATURE PAGE FOR PURCHASER FOLLOWS]


 




    	 	 



     


    

 


[PURCHASER SIGNATURE PAGES TO NOTE PURCHASE
AGREEMENT]


 


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


 


Name of Purchaser:


 


Signature of Authorized Signatory of Purchaser:                                                                                 


 


Name of Authorized Signatory:


 


Title of Authorized Signatory:


 


Email Address of Authorized Signatory:


 


Fax Number of Authorized Signatory:


 


Address for Notice of Purchaser:


 


Address for Delivery of Notes for Purchaser (if not same as
address for notice):


 


Subscription Amount:


 


[SIGNATURE PAGES CONTINUE]