Tonix Pharmaceuticals Holding Corp. 8-K


 


Exhibit
10.01


 


Execution
Version


 


PURCHASE
AGREEMENT


 


PURCHASE
AGREEMENT (the “Agreement”), dated as of August 20, 2019, by and between TONIX PHARMACEUTICALS HOLDING
CORP., a Nevada corporation, (the “Company”), LINCOLN PARK CAPITAL FUND, LLC, an Illinois limited
liability company (the “Investor”).


 


WHEREAS:



 


Subject
to the terms and conditions set forth in this Agreement, the Company wishes to sell to the Investor, and the Investor wishes to
buy from the Company, up to Fifteen Million Dollars ($15,000,000) of the Company’s common stock, $0.001 par value per share
(the “Common Stock”). The shares of Common Stock to be purchased hereunder are referred to herein as the “Purchase
Shares.”


 


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 the Investor hereby agree as follows:


 


1.        CERTAIN
DEFINITIONS. 


 


For
purposes of this Agreement, the following terms shall have the following meanings:


 


(a)       “Accelerated
Purchase Date” means, with respect to any Accelerated Purchase made pursuant to Section 2(b) hereof, the Business
Day immediately following the applicable Purchase Date with respect to the corresponding Regular Purchase referred to in clause
(i) of the second sentence of Section 2(b) hereof.


 


(b)       “Accelerated
Purchase Floor Price” means $0.50, which shall be appropriately adjusted for any reorganization, recapitalization, non-cash
dividend, stock split or other similar transaction and, effective upon the consummation of any such reorganization, recapitalization,
non-cash dividend, stock split or other similar transaction, the Accelerated Purchase Floor Price shall mean the lower
of (i) the adjusted price and (ii) $0.50.


 


(c)       “Accelerated
Purchase Minimum Price Threshold” means, with respect to any Accelerated Purchase made pursuant to Section 2(b)
hereof, the minimum per share price threshold set forth in the applicable Accelerated Purchase Notice.


 


(d)       “Accelerated
Purchase Notice” means, with respect to an Accelerated Purchase made pursuant to Section 2(b) hereof, an irrevocable
written notice from the Company to the Investor directing the Investor to purchase the number of Purchase Shares specified by
the Company therein as the Accelerated Purchase Share Amount to be purchased by the Investor (such specified Accelerated Purchase
Share Amount subject to adjustment in accordance with Section 2(b) hereof as necessary to give effect to the Purchase Share
amount limitations applicable to such Accelerated Purchase Share Amount as set forth in this Agreement) at the applicable Accelerated
Purchase Price on the applicable Accelerated Purchase Date for such Accelerated Purchase.


 


(e)       “Accelerated
Purchase Price” means, with respect to an Accelerated Purchase made pursuant to Section 2(b) hereof, the lower
of (i) ninety-six percent (96%) of the VWAP for the period beginning at 9:30:01 a.m., Eastern time, on the applicable Accelerated
Purchase Date, or such other time publicly announced by Principal Market as the official open (or commencement) of trading on
the Principal Market on such applicable Accelerated Purchase Date (the “Accelerated Purchase Commencement Time”),
and ending at the earliest of (A) 4:00:00 p.m., Eastern time, on such applicable Accelerated Purchase Date, or such other time
publicly announced by Principal Market as the official close of trading on the Principal Market on such applicable Accelerated
Purchase Date, (B) such time, from and after the Accelerated Purchase Commencement Time for such Accelerated Purchase, that total
number (or volume) of shares of Common Stock traded on the Principal Market has exceeded the applicable Accelerated Purchase Share
Volume Maximum, and (C) such time, from and after the Accelerated Purchase Commencement Time for such Accelerated Purchase, that
the Sale Price has fallen below the applicable Accelerated Purchase Minimum Price Threshold (such earliest of (i)(A), (i)(B) and
(i)(C) above, the “Accelerated Purchase Termination Time”), and (ii) the Closing Sale Price of the Common Stock
on such applicable Accelerated Purchase Date (to be appropriately adjusted for any reorganization, recapitalization, non-cash
dividend, stock split, reverse stock split or other similar transaction).


 






     


     


    

 


(f)       “Accelerated
Purchase Share Amount” means, with respect to an Accelerated Purchase made pursuant to Section 2(b) hereof, the
number of Purchase Shares directed by the Company to be purchased by the Investor in an Accelerated Purchase Notice, which number
of Purchase Shares shall not exceed the lesser of (i) 300% of the number of Purchase Shares directed by the Company to be purchased
by the Investor pursuant to the corresponding Regular Purchase Notice for the corresponding Regular Purchase referred to in clause
(i) of the second sentence of Section 2(b) hereof (subject to the Purchase Share limitations contained in Section 2(a)
hereof) and (ii) an amount equal to (A) the Accelerated Purchase Share Percentage multiplied by (B) the total number (or volume)
of shares of Common Stock traded on the Principal Market during the period on the applicable Accelerated Purchase Date beginning
at the Accelerated Purchase Commencement Time for such Accelerated Purchase and ending at the Accelerated Purchase Termination
Time for such Accelerated Purchase.


 


(g)       “Accelerated
Purchase Share Percentage” means, with respect to an Accelerated Purchase made pursuant to Section 2(b) hereof,
thirty percent (30%).


 


(h)       “Accelerated
Purchase Share Volume Maximum” means, with respect to an Accelerated Purchase made pursuant to Section 2(b) hereof,
a number of shares of Common Stock equal to (i) the number of Purchase Shares specified by the Company in the applicable Accelerated
Purchase Notice as the Accelerated Purchase Share Amount to be purchased by the Investor in such Accelerated Purchase, divided
by (ii) the Accelerated Purchase Share Percentage (to be appropriately adjusted for any reorganization, recapitalization, non-cash
dividend, stock split, reverse stock split or other similar transaction).


 


(i)       “Additional
Accelerated Purchase Date” means, with respect to an Additional Accelerated Purchase made pursuant to Section 2(c)
hereof, the Business Day (i) that is the Accelerated Purchase Date with respect to the corresponding Accelerated Purchase
referred to in clause (i) of the proviso in the second sentence of Section 2(c) hereof and (ii) on which the Investor receives,
prior to 1:00 p.m., Eastern time, on such Business Day, a valid Additional Accelerated Purchase Notice for such Additional Accelerated
Purchase in accordance with this Agreement.


 


(j)       “Additional
Accelerated Purchase Floor Price” means $0.50, which shall be appropriately adjusted for any reorganization, recapitalization,
non-cash dividend, stock split or other similar transaction and, effective upon the consummation of any such reorganization, recapitalization,
non-cash dividend, stock split or other similar transaction, the Additional Accelerated Purchase Floor Price shall mean the lower
of (i) the adjusted price and (ii) $0.50.


 


(k)       “Additional
Accelerated Purchase Minimum Price Threshold” means, with respect to an Additional Accelerated Purchase made pursuant
to Section 2(c) hereof, the minimum per share price threshold set forth in the applicable Additional Accelerated Purchase
Notice.


 






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(l)        “Additional
Accelerated Purchase Notice” means, with respect to an Additional Accelerated Purchase made pursuant to Section 2(c)
hereof, an irrevocable written notice from the Company to the Investor directing the Investor to purchase the number of Purchase
Shares specified by the Company therein as the Additional Accelerated Purchase Share Amount to be purchased by the Investor (such
specified Additional Accelerated Purchase Share Amount subject to adjustment in accordance with Section 2(c) hereof as
necessary to give effect to the Purchase Share amount limitations applicable to such Additional Accelerated Purchase Share Amount
as set forth in this Agreement) at the applicable Additional Accelerated Purchase Price on the applicable Additional Accelerated
Purchase Date for such Additional Accelerated Purchase.


 


(m)       “Additional
Accelerated Purchase Price” means, with respect to an Additional Accelerated Purchase made pursuant to Section 2(c)
hereof, the lower of (i) ninety-six percent (96%) of the VWAP for the period on the applicable Additional Accelerated Purchase
Date, beginning at the latest of (A) the applicable Accelerated Purchase Termination Time with respect to the corresponding Accelerated
Purchase referred to in clause (i) of the proviso in the second sentence of Section 2(c) hereof on such Additional Accelerated
Purchase Date, (B) the applicable Additional Accelerated Purchase Termination Time with respect to the most recently completed
prior Additional Accelerated Purchase on such Additional Accelerated Purchase Date, as applicable, and (C) the time at which all
Purchase Shares subject to all prior Accelerated Purchases and Additional Accelerated Purchases (as applicable), including, without
limitation, those that have been effected on the same Business Day as the applicable Additional Accelerated Purchase Date with
respect to which the applicable Additional Accelerated Purchase relates, have theretofore been received by the Investor as DWAC
Shares in accordance with this Agreement (such latest of (i)(A), (i)(B) and (i)(C) above, the “Additional Accelerated
Purchase Commencement Time”), and ending at the earliest of (X) 4:00 p.m., Eastern time, on such Additional Accelerated
Purchase Date, or such other time publicly announced by Principal Market as the official close of trading on the Principal Market
on such Additional Accelerated Purchase Date, (Y) such time, from and after the Additional Accelerated Purchase Commencement Time
for such Additional Accelerated Purchase, that total number (or volume) of shares of Common Stock traded on the Principal Market
has exceeded the applicable Additional Accelerated Purchase Share Volume Maximum, and (Z) such time, from and after the Additional
Accelerated Purchase Commencement Time for such Additional Accelerated Purchase, that the Sale Price has fallen below the applicable
Additional Accelerated Purchase Minimum Price Threshold (such earliest of (i)(X), (i)(Y) and (i)(Z) above, the “Additional
Accelerated Purchase Termination Time”), and (ii) the Closing Sale Price of the Common Stock on such Additional Accelerated
Purchase Date (to be appropriately adjusted for any reorganization, recapitalization, non-cash dividend, stock split, reverse
stock split or other similar transaction).


 


(n)       “Additional
Accelerated Purchase Share Amount” means, with respect to an Additional Accelerated Purchase made pursuant to Section
2(c) hereof, the number of Purchase Shares directed by the Company to be purchased by the Investor on an Additional Accelerated
Purchase Notice, which number of Purchase Shares shall not exceed the lesser of (i) 300% of the number of Purchase Shares directed
by the Company to be purchased by the Investor pursuant to the corresponding Regular Purchase Notice for the corresponding Regular
Purchase referred to in clause (i) of the proviso in the second sentence of Section 2(c) hereof (subject to the Purchase
Share limitations contained in Section 2(a) hereof) and (ii) an amount equal to (A) the Additional Accelerated Purchase
Share Percentage multiplied by (B) the total number (or volume) of shares of Common Stock traded on the Principal Market during
the period on the applicable Additional Accelerated Purchase Date beginning at the Additional Accelerated Purchase Commencement
Time for such Additional Accelerated Purchase and ending at the Additional Accelerated Purchase Termination Time for such Additional
Accelerated Purchase.


 






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(o)       “Additional
Accelerated Purchase Share Percentage” means, with respect to an Additional Accelerated Purchase made pursuant to Section
2(c) hereof, thirty percent (30%).


 


(p)       “Additional
Accelerated Purchase Share Volume Maximum” means, with respect to an Additional Accelerated Purchase made pursuant to
Section 2(c) hereof, a number of shares of Common Stock equal to (i) the number of Purchase Shares specified by the Company
in the applicable Additional Accelerated Purchase Notice as the Additional Accelerated Purchase Share Amount to be purchased by
the Investor in such Additional Accelerated Purchase, divided by (ii) the Additional Accelerated Purchase Share Percentage (to
be appropriately adjusted for any reorganization, recapitalization, non-cash dividend, stock split, reverse stock split or other
similar transaction).


 


(q)       “Alternate
Adjusted Regular Purchase Share Limit” means, with respect to a Regular Purchase made pursuant to Section 2(a)
hereof, the maximum number of Purchase Shares which, taking into account the applicable per share Purchase Price therefor calculated
in accordance with this Agreement, would enable the Company to deliver to the Investor, on the applicable Purchase Date for such
Regular Purchase, a Regular Purchase Notice for a Purchase Amount equal to, or as closely approximating without exceeding, One
Hundred Thousand Dollars ($100,000).


 


(r)
       “Available Amount” means, initially, Fifteen Million Dollars ($15,000,000)
in the aggregate, which amount shall be reduced by the Purchase Amount each time the Investor purchases Purchase Shares pursuant
to Section 2 hereof.


 


(s)       “Average
Price” means a price per Purchase Share (rounded to the nearest tenth of a cent) equal to the quotient obtained by dividing
(i) the aggregate gross purchase price paid by the Investor for all Purchase Shares purchased pursuant to this Agreement, by (ii)
the aggregate number of Purchase Shares issued pursuant to this Agreement.


 


(t)       “Bankruptcy
Law” means Title 11, U.S. Code, or any similar federal or state law for the relief of debtors.


 


(u)       “Base
Price” means a price per Purchase Share equal to the sum of (i) the Signing Market Price and (ii) $0.0967 (subject to
adjustment for any reorganization, recapitalization, non-cash dividend, stock split, reverse stock split or other similar transaction
that occurs on or after the date of this Agreement).


 


(v)       “Business
Day” means any day on which the Principal Market is open for trading, including any day on which the Principal Market
is open for trading for a period of time less than the customary time.


 


(w)       “Closing
Sale Price” means, for any security as of any date, the last closing sale price for such security on the Principal Market
as reported by the Principal Market.


 


(x)       “Confidential
Information” means any information disclosed by either party to the other party, either directly or indirectly, in writing,
orally or by inspection of tangible objects (including, without limitation, documents, prototypes, samples, plant and equipment),
which is designated as “Confidential,” “Proprietary” or some similar designation. Information communicated
orally shall be considered Confidential Information if such information is confirmed in writing as being Confidential Information
within ten (10) Business Days after the initial disclosure. Confidential Information may also include information disclosed to
a disclosing party by third parties. Confidential Information shall not, however, include any information which (i) was publicly
known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes
publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action
or inaction of the receiving party; (iii) is already in the possession of the receiving party without confidential restriction
at the time of disclosure by the disclosing party as shown by the receiving party’s files and records immediately prior
to the time of disclosure; (iv) is obtained by the receiving party from a third party without a breach of such third party’s
obligations of confidentiality; (v) is independently developed by the receiving party without use of or reference to the disclosing
party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession;
or (vi) is required by law to be disclosed by the receiving party, provided that the receiving party gives the disclosing party
prompt written notice of such requirement prior to such disclosure and assistance in obtaining an order protecting the information
from public disclosure.


 






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(y)       “Custodian”
means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.


 


(z)       “DTC”
means The Depository Trust Company, or any successor performing substantially the same function for the Company.


 


(aa)     “DWAC
Shares” means shares of Common Stock that are (i) issued in electronic form, (ii) freely tradable and transferable and
without restriction on resale and (iii) timely credited by the Company to the Investor’s or its designee’s specified
Deposit/Withdrawal at Custodian (DWAC) account with DTC under its Fast Automated Securities Transfer (FAST) Program, or any similar
program hereafter adopted by DTC performing substantially the same function.


 


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


 


(cc)     “Fully
Adjusted Regular Purchase Share Limit” means, with respect to any reorganization, recapitalization, non-cash dividend,
stock split or other similar transaction from and after the date of this Agreement, the Regular Purchase Share Limit (as defined
in Section 2(a) hereof) in effect on the applicable date of determination, after giving effect to the full proportionate
adjustment thereto made pursuant to Section 2(a) hereof for or in respect of such reorganization, recapitalization, non-cash
dividend, stock split or other similar transaction.


 


(dd)     “Material
Adverse Effect” means any material adverse effect on (i) the enforceability of any Transaction Document, (ii) the
results of operations, assets, business or financial condition of the Company and its Subsidiaries, taken as a whole, other than
any material adverse effect that resulted primarily from (A) any change in the United States or foreign economies or securities
or financial markets in general that does not have a disproportionate effect on the Company and its Subsidiaries, taken as a whole,
(B) any change that generally affects the industry in which the Company and its Subsidiaries operate that does not have a
disproportionate effect on the Company and its Subsidiaries, taken as a whole, (C) any change arising in connection with
earthquakes, hostilities, acts of war, sabotage or terrorism or military actions or any escalation or material worsening of any
such hostilities, acts of war, sabotage or terrorism or military actions existing as of the date hereof, (D) any action taken
by the Investor, its affiliates or its or their successors and assigns with respect to the transactions contemplated by this Agreement,
(E) the effect of any change in applicable laws or accounting rules that does not have a disproportionate effect on the Company
and its Subsidiaries, taken as a whole, or (F) any change resulting from compliance with terms of this Agreement or the consummation
of the transactions contemplated by this Agreement, or (iii) the Company’s ability to perform in any material respect
on a timely basis its obligations under any Transaction Document to be performed as of the date of determination.


 






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(ee)     “Maturity
Date” means the first day of the month immediately following the thirty (30) month anniversary of the Commencement Date.


 


(ff)     “PEA
Period” means the period commencing at 9:30 a.m., Eastern time, on the fifth (5th) Business Day immediately
prior to the filing of any post-effective amendment to the Registration Statement (as defined herein) or New Registration Statement
(as such term is defined in the Registration Rights Agreement), and ending at 9:30 a.m., Eastern time, on the Business Day immediately
following, the effective date of any post-effective amendment to the Registration Statement (as defined herein) or New Registration
Statement (as such term is defined in the Registration Rights Agreement).


 


(gg)     “Person”
means an individual or entity including but not limited to any limited liability company, a partnership, a joint venture, a corporation,
a trust, an unincorporated organization and a government or any department or agency thereof.


 


(hh)     “Principal
Market” means The Nasdaq Global Market (or any nationally recognized successor thereto); provided however, that in the
event the Company’s Common Stock is ever listed or traded on The Nasdaq Capital Market, The Nasdaq Global Select Market,
the New York Stock Exchange, the NYSE American, the NYSE Arca or the OTC Bulletin Board (it being understood that as used herein
“OTC Bulletin Board” shall also mean any successor or comparable market quotation system or exchange to the OTC Bulletin
Board such as the OTCQX and OTCQB operated by the OTC Markets Group, Inc.), then the “Principal Market” shall mean
such other market or exchange on which the Company’s Common Stock is then listed or traded or any successor thereto.


 


(ii)       “Purchase
Amount” means, with respect to any Regular Purchase, any Accelerated Purchase, any Additional Accelerated Purchase or
any Tranche Purchase made hereunder, as applicable, the portion of the Available Amount to be purchased by the Investor pursuant
to Section 2 hereof.


 


(jj)       “Purchase
Date” means, with respect to a Regular Purchase made pursuant to Section 2(a) hereof, the Business Day on which
the Investor receives, after 4:00 p.m., Eastern time, but prior to 5:00 p.m., Eastern time, on such Business Day, a valid Regular
Purchase Notice for such Regular Purchase in accordance with this Agreement.


 


(kk)     “Purchase
Price” means, with respect to any Regular Purchase made pursuant to Section 2(a) hereof, the lower of: (i) the
lowest Sale Price on the applicable Purchase Date for such Regular Purchase and (ii) the arithmetic average of the three (3) lowest
Closing Sale Prices for the Common Stock during the ten (10) consecutive Business Days ending on the Business Day immediately
preceding such Purchase Date for such Regular Purchase (in each case, to be appropriately adjusted for any reorganization, recapitalization,
non-cash dividend, stock split or other similar transaction that occurs on or after the date of this Agreement).


 


(ll)       “Regular
Purchase Notice” means, with respect to any Regular Purchase pursuant to Section 2(a) hereof, an irrevocable
written notice from the Company to the Investor, directing the Investor to buy such applicable amount of Purchase Shares at the
applicable Purchase Price as specified by the Company therein on the applicable Purchase Date for such Regular Purchase.


 


(mm)   “Sale
Price” means any trade price for the shares of Common Stock on the Principal Market as reported by the Principal Market.


 






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(nn)    “SEC”
means the U.S. Securities and Exchange Commission.


 


(oo)
   “Securities” means, collectively, the Purchase Shares and the Commitment
Shares.


 


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


 


(qq)
   “Signing Market Price” means $0.4579, representing the consolidated closing bid price of the Common Stock
on The Nasdaq Global Market on the date of this Agreement, which shall be the lower of (i) the closing price of the Common Stock
on The Nasdaq Global Market immediately preceding the date of this Agreement or (ii) the average closing price of the Common Stock
on The Nasdaq Global Market for the five (5) Business Days immediately preceding the date of this Agreement.


 


(rr)      “Subsidiary”
means any Person the Company wholly-owns or controls, or in which the Company, directly or indirectly, owns a majority of the
voting stock or similar voting interest, in each case that would be disclosable pursuant to Item 601(b)(21) of Regulation S-K
promulgated under the Securities Act.


 


(ss)
    “Tranche Purchase Date” means, with respect to a Tranche Purchase made pursuant to Section 2(d)
hereof, the Business Day on which the Investor receives, after 4:00 p.m., Eastern time, but prior to 5:00 p.m., Eastern time,
on such Business Day, a valid Tranche Purchase Notice that the Investor is to buy Purchase Shares pursuant to Section 2(d)
hereof.


 


(tt)      “Tranche
Purchase Notice” means, with respect to any Tranche Purchase pursuant to Section 2(d) hereof, an irrevocable
written notice from the Company to the Investor directing the Investor to buy such applicable amount of Purchase Shares at the
applicable Tranche Purchase Price, calculated in accordance with this Agreement and specified by the Company therein, on the Tranche
Purchase Date.


 


(uu)    “Tranche
Purchase Price” means, with respect to any Tranche Purchase made pursuant to Section 2(d) hereof, the lower of:
(i) $5.50 per share and (ii) ninety-six percent (96%) of the lower of (A) the lowest Sale Price on the Tranche Purchase Date and
(B) the arithmetic average of the three (3) lowest Closing Sale Prices for the Common Stock during the ten (10) consecutive Business
Days ending on the Business Day immediately preceding the Tranche Purchase Date (in each case, to be appropriately adjusted for
any reorganization, recapitalization, non-cash dividend, stock split or other similar transaction that occurs on or after the
date of this Agreement).


 


(vv)    “Transaction
Documents” means, collectively, this Agreement and the schedules and exhibits hereto, the Registration Rights Agreement
and the schedules and exhibits thereto, and each of the other agreements, documents, certificates and instruments entered into
or furnished by the parties hereto in connection with the transactions contemplated hereby and thereby.


 


(ww)   “Transfer Agent” means vStock Transfer, LLC, or such other Person who is then serving as the transfer agent
for the Company in respect of the Common Stock.


 


(xx)      “VWAP”
means in respect of an Accelerated Purchase Date and an Additional Accelerated Purchase Date, as applicable, the volume weighted
average price of the Common Stock on the Principal Market, as reported on the Principal Market.


 






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2.
PURCHASE OF COMMON STOCK. 


 


Subject
to the terms and conditions set forth in this Agreement, the Company has the right to sell to the Investor, and the Investor has
the obligation to purchase from the Company, Purchase Shares as follows:


 


(a)       Commencement
of Regular Sales of Common Stock. Upon the satisfaction of all of the conditions set forth in Sections 7 and 8
hereof (the “Commencement” and the date of satisfaction of such conditions the “Commencement Date”)
and thereafter, the Company shall have the right, but not the obligation, to direct the Investor, by its delivery to the Investor
of a Regular Purchase Notice from time to time, to purchase up to Seventy-Five Thousand (75,000) Purchase Shares, subject to adjustment
as set forth below in this Section 2(a) (such maximum number of Purchase Shares, as may be adjusted from time to time,
the “Regular Purchase Share Limit”), at the Purchase Price on the Purchase Date (each such purchase a “Regular
Purchase”); provided, however, that (i) the Regular Purchase Share Limit shall be increased to One Hundred
Thousand (100,000) Purchase Shares, if the Closing Sale Price of the Common Stock on the applicable Purchase Date is not below
$0.50, (ii) the Regular Purchase Share Limit shall be increased to One Hundred Twenty-Five Thousand (125,000) Purchase Shares,
if the Closing Sale Price of the Common Stock on the applicable Purchase Date is not below $1.00, (iii) the Regular Purchase Share
Limit shall be increased to One Hundred Fifty Thousand (150,000) Purchase Shares, if the Closing Sale Price of the Common Stock
on the applicable Purchase Date is not below $1.50, and (iv) the Regular Purchase Share Limit shall be increased to One Hundred
Seventy-Five Thousand (175,000) Purchase Shares, if the Closing Sale Price of the Common Stock on the applicable Purchase Date
is not below $2.00 (all of which share and dollar amounts shall be appropriately proportionately adjusted for any reorganization,
recapitalization, non-cash dividend, stock split or other similar transaction; provided that if, after giving effect to
the full proportionate adjustment to the Regular Purchase Share Limit therefor, the Fully Adjusted Regular Purchase Share Limit
then in effect would preclude the Company from delivering to the Investor a Regular Purchase Notice hereunder for a Purchase Amount
(calculated by multiplying (X) the number of Purchase Shares equal to the Fully Adjusted Regular Purchase Share Limit, by (Y)
the Purchase Price per Purchase Share covered by such Regular Purchase Notice on the applicable Purchase Date therefor) equal
to or greater than One Hundred Thousand Dollars ($100,000), the Regular Purchase Share Limit for such Regular Purchase Notice
shall not be fully adjusted to equal the applicable Fully Adjusted Regular Purchase Share Limit, but rather the Regular Purchase
Share Limit for such Regular Purchase Notice shall be adjusted to equal the applicable Alternate Adjusted Regular Purchase Share
Limit as of the applicable Purchase Date for such Regular Purchase Notice); and provided, further, however,
that the Investor’s committed obligation under any single Regular Purchase, other than any Regular Purchase with respect
to which an Alternate Adjusted Regular Purchase Share Limit shall apply, shall not exceed One Million Dollars ($1,000,000). If
the Company delivers any Regular Purchase Notice for a Purchase Amount in excess of the limitations contained in the immediately
preceding sentence, such Regular Purchase Notice shall be void ab initio to the extent of the amount by which the number
of Purchase Shares set forth in such Regular Purchase Notice exceeds the number of Purchase Shares which the Company is permitted
to include in such Purchase Notice in accordance herewith, and the Investor shall have no obligation to purchase such excess Purchase
Shares in respect of such Regular Purchase Notice; provided, however, that the Investor shall remain obligated to
purchase the number of Purchase Shares which the Company is permitted to include in such Regular Purchase Notice. The Company
may deliver a Regular Purchase Notice to the Investor as often as every Business Day, so long as the Company has not failed to
deliver Purchase Shares for the most recent prior Regular Purchase. Notwithstanding the foregoing, the Company shall not deliver
any Regular Purchase Notices during the PEA Period.


 






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(b)       Accelerated
Purchases. Subject to the terms and conditions of this Agreement, from and after the Commencement Date, in addition to purchases
of Purchase Shares as described in Section 2(a) above, the Company shall also have the right, but not the obligation, to
direct the Investor, by its delivery to the Investor of an Accelerated Purchase Notice from time to time in accordance with this
Agreement, to purchase the applicable Accelerated Purchase Share Amount at the Accelerated Purchase Price on the Accelerated Purchase
Date therefor in accordance with this Agreement (each such purchase, an “Accelerated Purchase”). The Company
may deliver an Accelerated Purchase Notice to the Investor only on a Purchase Date on which (i) the Company also properly submitted
a Regular Purchase Notice providing for a Regular Purchase of a number of Purchase Shares not less than the Regular Purchase Share
Limit then in effect on such Purchase Date in accordance with this Agreement (including, without limitation, giving effect to
any automatic increase to the Regular Purchase Share Limit as a result of the Closing Sale Price of the Common Stock exceeding
certain thresholds set forth in Section 2(a) above on such Purchase Date and any other adjustments to the Regular Purchase
Share Limit, in each case pursuant to Section 2(a) above), (ii) if all Purchase Shares for all prior Regular Purchases,
Accelerated Purchases, Tranche Purchases and Additional Accelerated Purchases, including, without limitation, those that have
been effected on the same Business Day as the applicable Accelerated Purchase Date, have theretofore been received by the Investor
as DWAC Shares in accordance with this Agreement and (iii) the Closing Sale Price of the Common Stock is not less than the Accelerated
Purchase Floor Price. If the Company delivers any Accelerated Purchase Notice directing the Investor to purchase an amount of
Purchase Shares that exceeds the Accelerated Purchase Share Amount that the Company is then permitted to include in such Accelerated
Purchase Notice, such Accelerated Purchase Notice shall be void ab initio to the extent of the amount by which the number
of Purchase Shares set forth in such Accelerated Purchase Notice exceeds the Accelerated Purchase Share Amount that the Company
is then permitted to include in such Accelerated Purchase Notice (which shall be confirmed in an Accelerated Purchase Confirmation),
and the Investor shall have no obligation to purchase such excess Purchase Shares in respect of such Accelerated Purchase Notice;
provided, however, that the Investor shall remain obligated to purchase the Accelerated Purchase Share Amount which
the Company is permitted to include in such Accelerated Purchase Notice. Within one (1) Business Day after completion of each
Accelerated Purchase Date for an Accelerated Purchase, the Investor will provide to the Company a written confirmation of such
Accelerated Purchase setting forth the applicable Accelerated Purchase Share Amount and Accelerated Purchase Price for such Accelerated
Purchase (each, an “Accelerated Purchase Confirmation”). Notwithstanding the foregoing, the Company shall not
deliver any Accelerated Purchase Notices during the PEA Period.


 


(c)       Additional
Accelerated Purchases. Subject to the terms and conditions of this Agreement, beginning one (1) Business Day following the
Commencement Date and thereafter, in addition to purchases of Purchase Shares as described in Section 2(a) and Section
2(b) above, the Company shall also have the right, but not the obligation, to direct the Investor, by its timely delivery
to the Investor of an Additional Accelerated Purchase Notice on an Additional Accelerated Purchase Date in accordance with this
Agreement, to purchase the applicable Additional Accelerated Purchase Share Amount at the applicable Additional Accelerated Purchase
Price therefor in accordance with this Agreement (each such purchase, an “Additional Accelerated Purchase”).
The Company may deliver multiple Additional Accelerated Purchase Notices to the Investor on an Additional Accelerated Purchase
Date; provided, however, that the Company may deliver an Additional Accelerated Purchase Notice to the Investor
only (i) on a Business Day that is also the Accelerated Purchase Date for an Accelerated Purchase with respect to which the Company
properly submitted to the Investor an Accelerated Purchase Notice in accordance with this Agreement on the applicable Purchase
Date for a Regular Purchase of a number of Purchase Shares not less than the Regular Purchase Share Limit then in effect in accordance
with this Agreement (including, without limitation, giving effect to any automatic increase to the Regular Purchase Share Limit
as a result of the Closing Sale Price of the Common Stock exceeding certain thresholds set forth in Section 2(a) above
on such Purchase Date and any other adjustments to the Regular Purchase Share Limit, in each case pursuant to Section 2(a)
above), (ii) if the Closing Sale Price of the Common Stock on the Business Day immediately preceding the Business Day on which
such Additional Accelerated Purchase Notice is delivered is not less than the Additional Accelerated Purchase Floor Price, and
(iii) if all Purchase Shares subject to all prior Regular Purchases, Accelerated Purchases and Additional Accelerated Purchases,
including, without limitation, those that have been effected on the same Business Day as the applicable Additional Accelerated
Purchase Date with respect to which the applicable Additional Accelerated Purchase relates, and, if the Tranche Purchase has occurred
prior thereto, all Purchase Shares subject to the Tranche Purchase, in each case have theretofore been received by the Investor
as DWAC Shares in accordance with this Agreement. If the Company delivers any Additional Accelerated Purchase Notice directing
the Investor to purchase an amount of Purchase Shares that exceeds the Additional Accelerated Purchase Share Amount that the Company
is then permitted to include in such Additional Accelerated Purchase Notice, such Additional Accelerated Purchase Notice shall
be void ab initio to the extent of the amount by which the number of Purchase Shares set forth in such Additional Accelerated
Purchase Notice exceeds the Additional Accelerated Purchase Share Amount that the Company is then permitted to include in such
Additional Accelerated Purchase Notice (which shall be confirmed in an Additional Accelerated Purchase Confirmation), and the
Investor shall have no obligation to purchase such excess Purchase Shares in respect of such Additional Accelerated Purchase Notice;
provided, however, that the Investor shall remain obligated to purchase the Additional Accelerated Purchase Share
Amount which the Company is permitted to include in such Additional Accelerated Purchase Notice. Within one (1) Business Day after
completion of each Additional Accelerated Purchase Date, the Investor will provide to the Company a written confirmation of each
Additional Accelerated Purchase on such Additional Accelerated Purchase Date setting forth the applicable Additional Accelerated
Purchase Share Amount and Additional Accelerated Purchase Price for each such Additional Accelerated Purchase on such Additional
Accelerated Purchase Date (each, an “Additional Accelerated Purchase Confirmation”). Notwithstanding the foregoing,
the Company shall not deliver any Additional Accelerated Purchase Notices during the PEA Period.


 






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(d)       Tranche
Purchases. Subject to the terms and conditions of this Agreement, from and after the Commencement Date, in addition to purchases
of Purchase Shares as described in Section 2(a), Section 2(b) and Section 2(c) above, the Company shall also
have the right, but not the obligation, to direct the Investor, by the Company’s delivery to the Investor of a Tranche Purchase
Notice on a Tranche Purchase Date in accordance with this Agreement, and the Investor thereupon shall have the obligation, to
buy the amount of Purchase Shares as specified by the Company therein (subject to the limitations below) at the Tranche Purchase
Price on the Tranche Purchase Date (each such purchase, a “Tranche Purchase”); provided, however,
that (i) the Company may deliver a Tranche Purchase Notice to the Investor only on a Tranche Purchase Date on which the Closing
Sale Price of the Common Stock is not below $1.00 (to be appropriately adjusted for any reorganization, recapitalization, non-cash
dividend, stock split or other similar transaction), (ii) the Company may deliver a Tranche Purchase Notice to the Investor only
if at least fifteen (15) Business Days have passed since the most recent Tranche Purchase was completed, (iii) the Investor’s
committed obligation under any single Tranche Purchase shall not exceed Four Hundred Thousand Dollars ($400,000), and (iv) the
Investor’s committed obligation under all Tranche Purchases shall not exceed Two Million Dollars ($2,000,000) in the aggregate.
If the Company delivers the Tranche Purchase Notice for a Tranche Purchase Amount in excess of the limitations contained in this
Section 2(d), such Tranche Purchase Notice shall be void ab initio to the extent of the amount by which the number
of Tranche Purchase Shares set forth in such Tranche Purchase Notice exceeds the number of Tranche Purchase Shares which the Company
is permitted to include in such Tranche Purchase Notice in accordance herewith, and the Investor shall have no obligation to purchase
such excess Purchase Shares in respect of such Tranche Purchase Notice; provided that the Investor shall remain obligated
to purchase the number of Tranche Purchase Shares which the Company is permitted to include in such Tranche Purchase Notice. Notwithstanding
the foregoing, the Company shall not deliver any Tranche Purchase Notice during the PEA Period.


 






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(e)       
Payment for Purchase Shares. For each Regular Purchase and each Tranche Purchase, the Investor shall pay to the Company
an amount equal to the Purchase Amount with respect to such Regular Purchase and Tranche Purchase, respectively, as full payment
for such Purchase Shares via wire transfer of immediately available funds on the same Business Day that the Investor receives
such Purchase Shares, if such Purchase Shares are received by the Investor before 1:00 p.m., Eastern time, or, if such Purchase
Shares are received by the Investor after 1:00 p.m., Eastern time, the next Business Day. For each Accelerated Purchase and each
Additional Accelerated Purchase, the Investor shall pay to the Company an amount equal to the Purchase Amount with respect to
such Accelerated Purchase and Additional Accelerated Purchase, respectively, as full payment for such Purchase Shares via wire
transfer of immediately available funds on the third Business Day following the date that the Investor receives such Purchase
Shares. If the Company or the Transfer Agent shall fail for any reason or for no reason to electronically transfer any Purchase
Shares as DWAC Shares in respect of a Regular Purchase, an Accelerated Purchase, an Additional Accelerated Purchase or a Tranche
Purchase (as applicable) within two (2) Business Days following the receipt by the Company of the Purchase Price, Accelerated
Purchase Price, Additional Accelerated Purchase Price and Tranche Purchase Price, respectively, therefor in compliance with this
Section 2(e), and if on or after such Business Day the Investor purchases (in an open market transaction or otherwise)
shares of Common Stock to deliver in satisfaction of a sale by the Investor of such Purchase Shares that the Investor anticipated
receiving from the Company in respect of such Regular Purchase, Accelerated Purchase, Additional Accelerated Purchase or Tranche
Purchase (as applicable), then the Company shall, within two (2) Business Days after the Investor’s request, either (i)
pay cash to the Investor in an amount equal to the Investor’s total purchase price (including brokerage commissions, if
any) for the shares of Common Stock so purchased (the “Cover Price”), at which point the Company’s obligation
to deliver such Purchase Shares as DWAC Shares shall terminate, or (ii) promptly honor its obligation to deliver to the Investor
such Purchase Shares as DWAC Shares and pay cash to the Investor in an amount equal to the excess (if any) of the Cover Price
over the total Purchase Amount paid by the Investor pursuant to this Agreement for all of the Purchase Shares to be purchased
by the Investor in connection with such Regular Purchase, Accelerated Purchase, Additional Accelerated Purchase and Tranche Purchase
(as applicable). The Company shall not issue any fraction of a share of Common Stock upon any Regular Purchase, Accelerated Purchase,
Additional Accelerated Purchase or Tranche Purchase. If the issuance would result in the issuance of a fraction of a share of
Common Stock, the Company shall round such fraction of a share of Common Stock up or down to the nearest whole share. All payments
made under this Agreement shall be made in lawful money of the United States of America or wire transfer of immediately available
funds to such account as the Company may from time to time designate by written notice in accordance with the provisions of this
Agreement. Whenever any amount expressed to be due by the terms of this Agreement is due on any day that is not a Business Day,
the same shall instead be due on the next succeeding day that is a Business Day.


 


(f)
       Compliance with Rules of Principal Market.


 


(i)       Exchange
Cap. Subject to Section 2(f)(ii) below, the Company shall not issue or sell any shares of Common Stock pursuant to
this Agreement, and the Investor shall not purchase or acquire any shares of Common Stock pursuant to this Agreement, to the extent
that after giving effect thereto, the aggregate number of shares of Common Stock that would be issued pursuant to this Agreement
and the transactions contemplated hereby would be equal or greater to 3,070,886 shares of Common Stock, representing 19.99% of
the shares of Common Stock outstanding on the date of this Agreement (which number of shares shall be reduced, on a share-for-share
basis, by the number of shares of Common Stock issued or issuable pursuant to any transaction or series of transactions that may
be aggregated with the transactions contemplated by this Agreement under applicable rules of The Nasdaq Global Market or any other
Principal Market on which the Common Stock may be listed or quoted) (the “Exchange Cap”), unless and until
the Company elects to solicit stockholder approval of the issuance of Common Stock as contemplated by this Agreement and the stockholders
of the Company have in fact approved such issuance in accordance with the applicable rules and regulations of The Nasdaq Global
Market, any other Principal Market on which the Common Stock may be listed or quoted, and the Company’s Articles of Incorporation,
as amended and as in effect on the date hereof (the “Articles of Incorporation”), and the Company’s Bylaws,
as amended and as in effect on the date hereof (the “Bylaws”). For the avoidance of doubt, the Company may,
but shall be under no obligation to, request its stockholders to approve the issuance of Common Stock as contemplated by this
Agreement; provided, that if stockholder approval is not obtained in accordance with this Section 2(f)(i), the Exchange
Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby at all times during the term
of this Agreement (except as set forth in Section 2(f)(ii) below).


 






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(ii)       At-Market
Transaction. Notwithstanding Section 2(f)(i) above and subject to the prior approval of The Nasdaq Global Market or
any other Principal Market on which the Common Stock may be listed or quoted (to the extent required), the Exchange Cap shall
not be applicable for any purposes of this Agreement and the transactions contemplated hereby, solely to the extent that (and
only for so long as) the Average Price shall equal or exceed the Base Price and in accordance with any other applicable rules
of The Nasdaq Global Market or any other Principal Market on which the Common Stock may be listed or quoted (it being hereby acknowledged
and agreed that the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby
at all other times during the term of this Agreement, unless the stockholder approval referred to in Section 2(f)(i) is
obtained).


 


(iii)       General.
The Company shall not issue any Securities pursuant to this Agreement if such issuance would reasonably be expected to result
in (A) a violation of the Securities Act or (B) a breach of the rules and regulations of the Principal Market. Furthermore, the
Company agrees that it shall not issue any Securities pursuant to this Agreement if, at the time of such issuance, (Y) the effectiveness
of the Registration Statement registering the Securities has lapsed for any reason (including, without limitation, the issuance
of a stop order or similar order) or (Z) the Registration Statement is unavailable for the sale by the Company to the Investor
(or the resale by the Investor, as the case may be) of any or all of the Securities to be issued to the Investor under the Transaction
Documents. The provisions of this Section 2(f) shall be implemented in a manner otherwise than in strict conformity with
the terms hereof only if necessary to ensure compliance with the Securities Act and the rules and regulations of the Principal
Market.


 


(g)       Beneficial
Ownership Limitation. Notwithstanding anything to the contrary contained in this Agreement, the Company shall not issue
or sell, and the Investor shall not purchase or acquire, any shares of Common Stock under this Agreement which, when
aggregated with all other shares of Common Stock then beneficially owned by the Investor and its affiliates (as calculated pursuant
to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder), would result in the beneficial ownership by the Investor
of more than 4.99% of the then issued and outstanding shares of Common Stock (the “Beneficial Ownership Limitation”).
Upon the written or oral request of the Investor, the Company shall promptly (but not later than 24 hours) confirm orally or in
writing to the Investor the number of shares of Common Stock then outstanding. The Investor and the Company shall each cooperate
in good faith in the determinations required hereby and the application hereof. The Investor’s written certification to
the Company of the applicability of the Beneficial Ownership Limitation, and the resulting effect thereof hereunder at any time,
shall be conclusive with respect to the applicability thereof and such result absent manifest error.


 






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3.       INVESTOR’S
REPRESENTATIONS AND WARRANTIES.


 


The
Investor represents and warrants to the Company that as of the date hereof and as of the Commencement Date:


 


(a)       Investment
Purpose.  The Investor is acquiring the Securities as principal for its own account and not with a view to or for distributing
or reselling such Securities or any part thereof in violation of the Securities Act or any applicable state securities law, has
no present intention of distributing any of such Securities in violation of the Securities Act or any applicable state securities
law and has no direct or indirect arrangement or understandings with any other Persons to distribute or regarding the distribution
of such Securities in violation of the Securities Act or any applicable state securities law (this representation and warranty
not limiting the Investor’s right to sell the Securities at any time pursuant to the Registration Statement described herein
or otherwise in compliance with applicable federal and state securities laws).  The Investor is acquiring the Securities
hereunder in the ordinary course of its business.


 


(b)       Accredited
Investor Status. The Investor is an “accredited investor” as that term is defined in Rule 501(a)(3) of Regulation
D promulgated under the Securities Act.


 


(c)       Reliance
on Exemptions. The Investor understands that the Securities are being offered and sold to it in reliance on specific exemptions
from the registration requirements of United States federal and state securities laws and that the Company is relying in part
upon the truth and accuracy of, and the Investor’s compliance with, the representations, warranties, agreements, acknowledgments
and understandings of the Investor set forth herein in order to determine the availability of such exemptions and the eligibility
of the Investor to acquire the Securities.


 


(d)       Information.
The Investor understands that its investment in the Securities involves a high degree of risk. The Investor (i) is able to bear
the economic risk of an investment in the Securities including a total loss thereof, (ii) has such knowledge and experience in
financial and business matters that it is capable of evaluating the merits and risks of the proposed investment in the Securities
and (iii) has had an opportunity to ask questions of and receive answers from the officers of the Company concerning the financial
condition and business of the Company and other matters related to an investment in the Securities. Neither such inquiries nor
any other due diligence investigations conducted by the Investor or its representatives shall modify, amend or affect the Investor’s
right to rely on the Company’s representations and warranties contained in Section 4 below. The Investor has sought such
accounting, legal and tax advice as it has considered necessary to make an informed investment decision with respect to its acquisition
of the Securities.


 


(e)       No
Governmental Review. The Investor understands that no U.S. federal or state agency or any other government or governmental
agency has passed on or made any recommendation or endorsement of the Securities or the fairness or suitability of an investment
in the Securities nor have such authorities passed upon or endorsed the merits of the offering of the Securities.


 


(f)       Transfer
or Sale. The Investor understands that (i) the Securities may not be offered for sale, sold, assigned or transferred unless
(A) registered pursuant to the Securities Act or (B) an exemption exists permitting such Securities to be sold, assigned or transferred
without such registration; (ii) any sale of the Securities made in reliance on Rule 144 may be made only in accordance with the
terms of Rule 144 and further, if Rule 144 is not applicable, any resale of the Securities under circumstances in which the seller
(or the Person through whom the sale is made) may be deemed to be an underwriter (as that term is defined in the Securities Act)
may require compliance with some other exemption under the Securities Act or the rules and regulations of the SEC thereunder.


 






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(g)       Validity;
Enforcement. This Agreement has been duly and validly authorized, executed and delivered on behalf of the Investor and is
a valid and binding agreement of the Investor enforceable against the Investor in accordance with its terms, subject as to enforceability
to general principles of equity and to applicable bankruptcy, insolvency, reorganization, moratorium, liquidation and other similar
laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies.


 


(h)       Residency.
The Investor is a resident of the State of Illinois.


 


(i)       No
Short Selling. The Investor represents and warrants to the Company that at no time prior to the date of this Agreement has
any of the Investor, its agents, representatives or affiliates engaged in or effected, in any manner whatsoever, directly or indirectly,
any (i) “short sale” (as such term is defined in Rule 200 of Regulation SHO of the Exchange Act) of the Common Stock
or (ii) hedging transaction, which establishes a net short position with respect to the Common Stock.


 


4.       REPRESENTATIONS
AND WARRANTIES OF THE COMPANY.


 


The
Company represents and warrants to the Investor that, except as set forth in the disclosure schedules attached hereto, which exceptions
shall be deemed to be a part of the representations and warranties made hereunder, as of the date hereof and as of the Commencement
Date:


 


(a)       Organization
and Qualification. The Company and each of its 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, with the requisite corporate
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 of its Subsidiaries is in violation or 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 its 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 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. The Company has no Subsidiaries except as set forth in the SEC Documents
(as defined below).


 


(b)       Authorization;
Enforcement; Validity. (i) The Company has the requisite corporate power and authority to enter into and perform its obligations
under this Agreement and each of the other Transaction Documents, and to issue the Securities in accordance with the terms hereof
and thereof, (ii) the execution and delivery of the Transaction Documents by the Company and the consummation by it of the transactions
contemplated hereby and thereby, including without limitation, the issuance of the Commitment Shares and the payment of the Commitment
Fee (each as defined below in Section 5(e)) and the reservation for issuance and the issuance of the Purchase Shares issuable
under this Agreement, have been duly authorized by the Company’s Board of Directors and no further consent or authorization
is required by the Company, its Board of Directors or its stockholders, (iii) this Agreement has been, and each other Transaction
Document shall be on the Commencement Date, duly executed and delivered by the Company and (iv) this Agreement constitutes, and
each other Transaction Document upon its execution on behalf of the Company, shall constitute, the valid and binding obligations
of the Company enforceable against the Company in accordance with their terms, except as such enforceability may be limited by
general principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws relating
to, or affecting generally, the enforcement of creditors’ rights and remedies. The Board of Directors of the Company has
approved resolutions substantially in the form set forth in Exhibit B attached hereto (the “Signing Resolutions”)
to authorize this Agreement, the Registration Rights Agreement and the transactions contemplated hereby and thereby. The Signing
Resolutions are valid, in full force and effect and have not been modified or supplemented in any respect. The Company has delivered
to the Investor a true and correct copy of a unanimous written consent adopting the Signing Resolutions executed by all of the
members of the Board of Directors of the Company. Except as set forth in this Agreement, no other approvals or consents of the
Company’s Board of Directors, any authorized committee thereof, and/or stockholders is necessary under applicable laws and
the Company’s Articles of Incorporation and/or Bylaws to authorize the execution and delivery of this Agreement, the Registration
Rights Agreement or any of the transactions contemplated hereby or thereby, including, but not limited to, the issuance of the
Securities.


 






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(c)       Capitalization.
As of the date hereof, the authorized capital stock of the Company is set forth in the Company’s Quarterly Report on Form
10-Q for the quarter ended June 30, 2019. Except as disclosed in the SEC Documents (as defined below), (i) no shares of the Company’s
capital stock are subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted
by the Company, (ii) there are no outstanding debt securities, (iii) there are no outstanding options, warrants, scrip, rights
to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares
of capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which
the Company or any of its Subsidiaries is or may become bound to issue additional shares of capital stock of the Company or any
of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating
to, or securities or rights convertible into, any shares of capital stock of the Company or any of its Subsidiaries, (iv) there
are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any
of their securities under the Securities Act (except the Registration Rights Agreement), (v) there are no outstanding securities
or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no
contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound
to redeem a security of the Company or any of its Subsidiaries, (vi) there are no securities or instruments containing anti-dilution
or similar provisions that will be triggered by the issuance of the Securities as described in this Agreement and (vii) the Company
does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement.
The Company has furnished to the Investor true and correct copies of the Company’s Articles of Incorporation, as amended
and as in effect on the date hereof (the “Articles of Incorporation”), and the Company’s Bylaws, as amended
and as in effect on the date hereof (the “Bylaws”), and summaries of the terms of all securities convertible
into or exercisable for Common Stock, if any, and copies of any documents containing the material rights of the holders thereof
in respect thereto.


 


(d)       Issuance
of Securities. Upon issuance and payment therefor in accordance with the terms and conditions of this Agreement, the Purchase
Shares shall be validly issued, fully paid and nonassessable and free from all taxes, liens, charges, restrictions, rights of
first refusal and preemptive rights with respect to the issue thereof, with the holders being entitled to all rights accorded
to a holder of Common Stock. 5,000,000 shares of Common Stock have been duly authorized and reserved for issuance upon purchase
under this Agreement as Purchase Shares. Upon issuance in accordance with the terms and conditions of this Agreement, the Commitment
Shares shall be validly issued, fully paid and nonassessable and free from all taxes, liens, charges, restrictions, rights of
first refusal and preemptive rights with respect to the issue thereof, with the holders being entitled to all rights accorded
to a holder of Common Stock.


 






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(e)       No
Conflicts. The execution, delivery and performance of the Transaction Documents by the Company and the consummation by the
Company of the transactions contemplated hereby and thereby (including, without limitation, the issuance of the Commitment Shares,
the payment of the Commitment Fee and the reservation for issuance and issuance of the Purchase Shares) will not (i) result in
a violation of the Articles of Incorporation, any Certificate of Designations, Preferences and Rights of any outstanding series
of preferred stock of the Company or the Bylaws or (ii) conflict with, or constitute a default (or an event which with notice
or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or
cancellation of, any agreement, indenture or instrument to which the Company or any of its Subsidiaries is a party, or result
in a violation of any law, rule, regulation, order, judgment or decree (including federal and state securities laws and regulations
and the rules and regulations of the Principal Market applicable to the Company or any of its Subsidiaries) or by which any property
or asset of the Company or any of its Subsidiaries is bound or affected, except in the case of conflicts, defaults, terminations,
amendments, accelerations, cancellations and violations under clause (ii), which would not reasonably be expected to result in
a Material Adverse Effect. Neither the Company nor its Subsidiaries is in violation of any term of or in default under its Articles
of Incorporation, any Certificate of Designation, Preferences and Rights of any outstanding series of preferred stock of the Company
or Bylaws or their organizational charter or bylaws, respectively. Neither the Company nor any of its Subsidiaries is in violation
of any term of or is in default under any material contract, agreement, mortgage, indebtedness, indenture, instrument, judgment,
decree or order or any statute, rule or regulation applicable to the Company or its Subsidiaries, except for possible conflicts,
defaults, terminations or amendments that would not reasonably be expected to have a Material Adverse Effect. The business of
the Company and its Subsidiaries is not being conducted, and shall not be conducted, in violation of any law, ordinance, regulation
of any governmental entity, except for possible violations, the sanctions for which either individually or in the aggregate would
not reasonably be expected to have a Material Adverse Effect. Except as specifically contemplated by this Agreement and as required
under the Securities Act or applicable state securities laws and the rules and regulations of the Principal Market, the Company
is not required to obtain any consent, authorization or order of, or make any filing or registration with, any court or governmental
agency or any regulatory or self-regulatory agency in order for it to execute, deliver or perform any of its obligations under
or contemplated by the Transaction Documents in accordance with the terms hereof or thereof. Except as set forth elsewhere in
this Agreement, all consents, authorizations, orders, filings and registrations which the Company is required to obtain pursuant
to the preceding sentence shall be obtained or effected on or prior to the Commencement Date.


 


(f)       SEC
Documents; 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 twelve months 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 Documents”).  As of their respective dates, the SEC Documents
complied in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable. None of the
SEC Documents, 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 financial statements of the Company included in the SEC Documents comply in all material respects with applicable
accounting requirements and the rules and regulations of the SEC 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. The SEC has not commenced any enforcement proceedings against the
Company or any of its Subsidiaries.


 






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(g)       Absence
of Certain Changes. Except as disclosed in the SEC Documents, since December 31, 2017, there has been no material adverse
change in the business, properties, operations, financial condition or results of operations of the Company or its Subsidiaries.
The Company has not taken any steps, and does not currently expect to take any steps, to seek protection pursuant to any Bankruptcy
Law nor does the Company or any of its Subsidiaries have any knowledge or reason to believe that its creditors intend to initiate
involuntary bankruptcy or insolvency proceedings. The Company is financially solvent and is generally able to pay its debts as
they become due.


 


(h)       Absence
of Litigation. There is no action, suit, proceeding, inquiry or investigation before or by any court, public board, government
agency, self-regulatory organization or body pending or, to the knowledge of the Company or any of its Subsidiaries, threatened
against or affecting the Company, the Common Stock or any of the Company’s or its Subsidiaries’ officers or directors
in their capacities as such, which could reasonably be expected to have a Material Adverse Effect.


 


(i)       Acknowledgment
Regarding Investor’s Status. The Company acknowledges and agrees that the Investor is acting solely in the capacity
of arm’s length purchaser with respect to the Transaction Documents and the transactions contemplated hereby and thereby.
The Company further acknowledges that the Investor is not 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 hereby and thereby and any advice
given by the Investor or any of its representatives or agents in connection with the Transaction Documents and the transactions
contemplated hereby and thereby is merely incidental to the Investor’s purchase of the Securities. The Company further represents
to the Investor that the Company’s decision to enter into the Transaction Documents has been based solely on the independent
evaluation by the Company and its representatives and advisors.


 


(j)       No
General Solicitation; No Aggregated Offering. Neither the Company, nor any of its affiliates, nor any Person acting on its
or their behalf, has engaged in any form of general solicitation or general advertising (within the meaning of Regulation D under
the Securities Act) in connection with the offer or sale of the Securities. Neither the Company, nor or any of its affiliates,
nor any Person acting on 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 require registration of the offer and sale of any of the Securities under
the Securities Act, whether through integration with prior offerings or otherwise, or cause this offering of the Securities to
be aggregated with prior offerings by the Company in a manner that would require stockholder approval pursuant to the rules of
the Principal Market on which any of the securities of the Company are listed or designated. The issuance and sale of the Securities
hereunder does not contravene the rules and regulations of the Principal Market.


 


(k)       Intellectual
Property Rights. The Company and its Subsidiaries own or possess adequate rights or licenses to use all material trademarks,
trade names, service marks, service mark registrations, service names, patents, patent rights, copyrights, inventions, licenses,
approvals, governmental authorizations, trade secrets and rights necessary to conduct their respective businesses as now conducted.
None of the Company’s material trademarks, trade names, service marks, service mark registrations, service names, patents,
patent rights, copyrights, inventions, licenses, approvals, government authorizations, trade secrets or other intellectual property
rights have expired or terminated, or, by the terms and conditions thereof, could expire or terminate within two years from the
date of this Agreement. The Company and its Subsidiaries do not have any knowledge of any infringement by the Company or its Subsidiaries
of any material trademark, trade name rights, patents, patent rights, copyrights, inventions, licenses, service names, service
marks, service mark registrations, trade secret or other similar rights of others, or of any such development of similar or identical
trade secrets or technical information by others, and there is no claim, action or proceeding being made or brought against, or
to the Company’s knowledge, being threatened against, the Company or its Subsidiaries regarding trademark, trade name, patents,
patent rights, invention, copyright, license, service names, service marks, service mark registrations, trade secret or other
infringement, which could reasonably be expected to have a Material Adverse Effect.


 






    -17- 


     


    

 


(l)       Environmental
Laws. The Company and its Subsidiaries (i) are in compliance with any and all applicable foreign, federal, state and local
laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants (“Environmental Laws”), (ii) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct their respective businesses and (iii) are in compliance
with all terms and conditions of any such permit, license or approval, except where, in each of the three foregoing clauses, the
failure to so comply could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.


 


(m)       Title.
The Company and its Subsidiaries have good and marketable title in fee simple to all real property owned by them and good and
marketable title in all personal property owned by them that is material to the business of the Company and its Subsidiaries,
in each case free and clear of all liens, encumbrances and defects (“Liens”) and, 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 its 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
its Subsidiaries are held by them under valid, subsisting and enforceable leases with which the Company and its Subsidiaries are
in compliance with such exceptions as are not material and do not interfere with the use made and proposed to be made of such
property and buildings by the Company and its Subsidiaries.


 


(n)       Insurance.
The Company and each of its Subsidiaries are insured by insurers of recognized financial responsibility against such losses and
risks and in such amounts as management of the Company believes to be prudent and customary in the businesses in which the Company
and its Subsidiaries are engaged. Neither the Company nor any such Subsidiary has been refused any insurance coverage sought or
applied for and neither the Company nor any such Subsidiary has any reason to believe that it will not be able to renew its existing
insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not materially and adversely affect the condition, financial or otherwise, or the earnings,
business or operations of the Company and its Subsidiaries, taken as a whole.


 


(o)       Regulatory
Permits. The Company and its Subsidiaries possess all material certificates, authorizations and permits issued by the appropriate
federal, state or foreign regulatory authorities necessary to conduct their respective businesses, and neither the Company nor
any such Subsidiary has received any notice of proceedings relating to the revocation or modification of any such certificate,
authorization or permit.


 


(p)       Tax
Status. The Company and each of its Subsidiaries has made or filed all federal and state income and all other material tax
returns, reports and declarations required by any jurisdiction to which it is subject (unless and only to the extent that the
Company and each of its Subsidiaries has set aside on its books provisions reasonably adequate for the payment of all unpaid and
unreported taxes) and has paid all taxes and other governmental assessments and charges that are material in amount, shown or
determined to be due on such returns, reports and declarations, except those being contested in good faith and has set aside on
its books provision reasonably adequate for the payment of all taxes for periods subsequent to the periods to which such returns,
reports or declarations apply. There are no unpaid taxes in any material amount claimed to be due by the taxing authority of any
jurisdiction, and the officers of the Company know of no basis for any such claim.


 






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(q)       Transactions
With Affiliates.  Except as set forth in the SEC Documents, 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 $120,000 other than for (i) payment of salary or consulting fees for services rendered, (ii) reimbursement for
expenses incurred on behalf of the Company and (iii) other employee benefits, including stock option agreements under any stock
option plan of the Company.


 


(r)       Application
of Takeover Protections. The Company and its board of directors have taken or will take prior to the Commencement Date 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 Articles of Incorporation or the
laws of the state of its incorporation which is or could become applicable to the Investor as a result of the transactions contemplated
by this Agreement, including, without limitation, the Company’s issuance of the Securities and the Investor’s ownership
of the Securities.


 


(s)        Disclosure.  Except
with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents that will be timely
publicly disclosed by the Company, the Company confirms that neither it nor any other Person acting on its behalf has provided
the Investor or its agents or counsel with any information that it believes constitutes or might constitute material, non-public
information which is not otherwise disclosed in the Registration Statement or the SEC Documents.   The Company
understands and confirms that the Investor will rely on the foregoing representation in effecting purchases and sales of securities
of the Company.  All of the disclosure furnished by or on behalf of the Company to the Investor regarding the Company,
its business and the transactions contemplated hereby, including the disclosure schedules to this Agreement, is true and correct
in all material respects and does not contain any untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements made therein, in 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 the Investor neither makes nor has made any representations or warranties with respect to
the transactions contemplated hereby other than those specifically set forth in Section 3 hereof.


 






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(t)       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 unlawful payment to foreign or domestic government officials
or employees or to any foreign or domestic political parties or campaigns from corporate funds, (iii) failed to disclose fully
any contribution made by the Company (or 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.


 


(u)       DTC
Eligibility. The Company, through the Transfer Agent, currently participates in the DTC Fast Automated Securities Transfer
(FAST) Program and the Common Stock can be transferred electronically to third parties via the DTC Fast Automated Securities Transfer
(FAST) Program.


 


(v)       Sarbanes-Oxley.
The Company is in compliance with all provisions of the Sarbanes-Oxley Act of 2002, as amended, which are applicable to it as
of the date hereof.


 


(w)       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 Investor 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 4(w) that may be due in connection with
the transactions contemplated by the Transaction Documents.


 


(x)       Investment
Company. The Company is not, and immediately after receipt of payment for the Purchase Shares will not be, an “investment
company” within the meaning of the Investment Company Act of 1940, as amended.


 


(y)       Listing
and Maintenance Requirements. The Common Stock is registered pursuant to Section 12(b) 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 pursuant to the Exchange Act nor has the Company received any notification that the SEC is currently contemplating
terminating such registration. Except as disclosed in the SEC Documents, the Company has not, in the twelve (12) months preceding
the date hereof, received any notice from any Person to the effect that the Company is not in compliance with the listing or maintenance
requirements of the Principal Market. The Company is, and has no reason to believe that it will not in the foreseeable future
continue to be, in compliance with all such listing and maintenance requirements. The Principal Market has not commenced any delisting
proceedings against the Company.


 


(z)       Accountants.
The Company’s accountants are set forth in the SEC Documents and, to the knowledge of the Company, such accountants are
an independent registered public accounting firm as required by the Securities Act.


 


(aa)     No
Market Manipulation. The Company has not, and to its knowledge no Person acting on its behalf has, (i) taken, directly
or indirectly, any action designed to cause or to result in the stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of any of the Securities, (ii) sold, bid for, purchased, or, paid any compensation
for soliciting purchases of, any of the Securities, or (iii) paid or agreed to pay to any Person any compensation for soliciting
another to purchase any other securities of the Company.


 






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(bb)     Shell
Company Status. The Company is not currently, and since October 27, 2011, has not been, an issuer identified in Rule 144(i)(1)
under the Securities Act and has filed with the SEC current “Form 10 information” (as defined in Rule 144(i)(3) under
the Securities Act) at least 12 calendar months prior to the date of this Agreement reflecting its status as an entity that is
no longer an issuer identified in Rule 144(i)(1) under the Securities Act.


 


(cc)     No
Disqualification Events. None of the Company, any of its predecessors, any affiliated issuer, any director, executive officer,
other officer of the Company participating in the offering contemplated hereby, 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 time of sale (each, an “Issuer Covered
Person”) is subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii)
under the Securities Act (a “Disqualification Event”), except for a Disqualification Event covered by Rule
506(d)(2) or (d)(3) under the Securities Act. The Company has exercised reasonable care to determine whether any Issuer Covered
Person is subject to a Disqualification Event.


 


5.       COVENANTS.


 


(a)       Filing
of Current Report and Registration Statement. The Company agrees that it shall, within the time required under the Exchange
Act, file with the SEC a report on Form 8-K relating to the transactions contemplated by, and describing the material terms and
conditions of, the Transaction Documents (the “Current Report”). The Company shall also file with the SEC,
within twenty (20) Business Days from the date hereof, a new registration statement (the “Registration Statement”)
covering only the resale of the Purchase Shares and all of the Commitment Shares, in accordance with the terms of the Registration
Rights Agreement between the Company and the Investor, dated as of the date hereof (the “Registration Rights Agreement”).
The Company shall permit the Investor to review and comment upon the final pre-filing draft version of the Current Report at least
two (2) Business Days prior to its filing with the SEC, and the Company shall give due consideration to all such comments. The
Investor shall use its reasonable best efforts to comment upon the final pre-filing draft version of the Current Report within
one (1) Business Day from the date the Investor receives it from the Company.


 


(b)       Blue
Sky. The Company shall take all such action, if any, as is reasonably necessary in order to obtain an exemption for or to
register or qualify (i) the issuance of the Commitment Shares and the issuance and sale of the Purchase Shares to the Investor
under this Agreement and (ii) any subsequent resale of the Securities by the Investor, in each case, under applicable securities
or “Blue Sky” laws of the states of the United States in such states as is reasonably requested by the Investor from
time to time, and shall provide evidence of any such action so taken to the Investor.


 


(c)       Listing/DTC.
The Company shall promptly secure the listing of all of the Securities to be issued to the Investor under this Agreement on the
Principal Market (subject to official notice of issuance) and upon each other national securities exchange or automated quotation
system, if any, upon which the Common Stock is then listed, and shall use commercially reasonable efforts to maintain, so long
as any shares of Common Stock shall be so listed, such listing of all such Securities. The Company shall use commercially reasonable
efforts to maintain the listing of the Common Stock, including the Securities, on the Principal Market and shall comply in all
respects with the Company’s reporting, filing and other obligations under the bylaws or rules and regulations of the Principal
Market. Neither the Company nor any of its Subsidiaries shall take any action that would reasonably be expected to result in the
delisting or suspension of the Common Stock, including the Securities, on the Principal Market. The Company shall promptly, and
in no event later than the following Business Day, provide to the Investor copies of any notices it receives from the Principal
Market regarding the continued eligibility of the Common Stock for listing on the Principal Market; provided, however, that the
Company shall not be required to provide the Investor copies of any such notice that the Company reasonably believes constitutes
material non-public information and the Company would not be required to publicly disclose such notice in any report or statement
filed with the SEC under the Exchange Act (including on Form 8-K) or the Securities Act. The Company shall pay all fees and expenses
in connection with satisfying its obligations under this Section 5(c). The Company shall take all action necessary to ensure
that its Common Stock, including the Securities, can be transferred electronically as DWAC Shares.


 






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(d)       Prohibition
of Short Sales and Hedging Transactions. The Investor agrees that beginning on the date of this Agreement and ending on the
date of termination of this Agreement as provided in Section 11, the Investor and its agents, representatives and affiliates shall
not in any manner whatsoever enter into or effect, directly or indirectly, any (i) “short sale” (as such term is defined
in Rule 200 of Regulation SHO of the Exchange Act) of the Common Stock or (ii) hedging transaction, which establishes a net short
position with respect to the Common Stock.


 


(e)       Issuance
of Commitment Shares and Payment of Commitment Fee. In consideration for the Investor’s execution and delivery of this
Agreement, the Company shall (i) cause to be issued to the Investor a total of 355,290 shares of Common Stock (the “Commitment
Shares”) immediately upon the execution of this Agreement and shall deliver to the Transfer Agent the Irrevocable Transfer
Agent Instructions with respect to the issuance of such Commitment Shares and (ii) pay to the Investor immediately upon the execution
of this Agreement an amount in cash, by wire transfer of immediately available funds, equal to One Hundred Thousand Dollars ($100,000)
(the “Commitment Fee”). For the avoidance of doubt, all of the Commitment Shares and the Commitment Fee shall
be fully earned as of the date of this Agreement, whether or not the Commencement shall occur or any Purchase Shares are purchased
by the Investor under this Agreement and irrespective of any subsequent termination of this Agreement.


 


(f)       Due
Diligence; Non-Public Information. The Investor shall have the right, from time to time as the Investor may reasonably deem
appropriate, and upon providing reasonable advance notice, to perform reasonable due diligence on the Company during normal business
hours. The Company and its officers and employees shall provide information and reasonably cooperate with the Investor in connection
with any reasonable request by the Investor related to the Investor’s due diligence of the Company. Each party hereto agrees
not to disclose any Confidential Information of the other party to any third party and shall not use the Confidential Information
for any purpose other than in connection with, or in furtherance of, the transactions contemplated hereby. Each party hereto acknowledges
that the Confidential Information shall remain the property of the disclosing party and agrees that it shall take all reasonable
measures to protect the secrecy of any Confidential Information disclosed by the other party. The Company confirms that neither
it nor any other Person acting on its behalf shall provide the Investor or its agents or counsel with any information that constitutes
or might constitute material, non-public information, unless a simultaneous public announcement thereof is made by the Company
in the manner contemplated by Regulation FD. In the event of a breach of the foregoing covenant by the Company or any Person acting
on its behalf (as determined in the reasonable good faith judgment of the Investor), in addition to any other remedy provided
herein or in the other Transaction Documents, if the Investor is holding any Securities at the time of the disclosure of material,
non-public information, the Investor shall have the right to make a public disclosure, in the form of a press release, public
advertisement or otherwise, of such material, non-public information without the prior approval by the Company; provided the Investor
shall have first provided notice to the Company that it believes it has received information that constitutes material, non-public
information, the Company shall have at least 48 hours to publicly disclose such material, non-public information prior to any
such disclosure by the Investor or demonstrate to the Investor in writing why such information does not constitute material, non-public
information, and (assuming the Investor and Investor’s counsel disagree with the Company’s determination) the Company
shall have failed to publicly disclose such material, non-public information within such time period. The Investor shall not have
any liability to the Company, any of its Subsidiaries, or any of their respective directors, officers, employees, stockholders
or agents, for any such disclosure. The Company understands and confirms that the Investor shall be relying on the foregoing covenants
in effecting transactions in securities of the Company.


 






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(g)
     Purchase Records. The Investor and the Company shall each maintain records showing
the remaining Available Amount at any given time and the dates and Purchase Amounts for each Regular Purchase, Accelerated Purchase
and Additional Purchase or shall use such other method, reasonably satisfactory to the Investor and the Company.


 


(h)
     Taxes. The Company shall pay any and all transfer, stamp or similar taxes that
may be payable with respect to the issuance and delivery of any shares of Common Stock to the Investor made under this Agreement.


 


(i)       Use
of Proceeds. The Company will use the net proceeds from the offering as described in the Registration Statement or the SEC
Documents.


 


(j)       Other
Transactions. The Company shall not enter into, announce or recommend to its stockholders any agreement, plan, arrangement
or transaction in or of which the terms thereof would restrict, materially delay, conflict with or impair the ability or right
of the Company to perform its obligations under the Transaction Documents, including, without limitation, the obligation of the
Company to deliver the Securities to the Investor in accordance with the terms of the Transaction Documents.


 


(k)       Integration;
Aggregation. From and after the date of this Agreement, neither the Company, nor or any of its affiliates will, and the Company
shall use its reasonable best efforts to ensure that no Person acting on their behalf will, directly or indirectly, make any offers
or sales of any security or solicit any offers to buy any security, under circumstances that would (i) require registration of
the offer and sale by the Company to the Investor of any of the Securities under the Securities Act, or (ii) cause this offering
of the Securities by the Company to the Investor to be aggregated with other offerings by the Company in a manner that would require
stockholder approval pursuant to the rules of the Principal Market on which any of the securities of the Company are listed or
designated, unless in the case of this clause (ii), stockholder approval is obtained before the closing of such subsequent transaction
in accordance with the rules of such Principal Market.


 


(l)       Limitation
on Variable Rate Transactions. From and after the date of this Agreement until the later of (i) the 24-month anniversary of
the date of this Agreement or (ii) the 24-month anniversary of the Commencement Date (if the Commencement has occurred), in either
case irrespective of any earlier termination of this Agreement, the Company shall be prohibited from effecting or entering into
an agreement to effect any issuance by the Company or any of its Subsidiaries of Common Stock or Common Stock Equivalents (or
a combination of units thereof) involving a Variable Rate Transaction, other than in connection with an Exempt Issuance. The Investor
shall be entitled to seek injunctive relief against the Company and its Subsidiaries to preclude any such issuance, which remedy
shall be in addition to any right to collect damages, without the necessity of showing economic loss and without any bond or other
security being required. “Common Stock Equivalents” means any securities of the Company or its Subsidiaries
which 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 the holder thereof to receive, Common Stock. “Variable Rate Transaction” means a transaction in which
the Company (i) issues or sells any debt or equity securities that are convertible into, exchangeable or exercisable for, or include
the right to receive additional shares of Common Stock or Common Stock Equivalents either (A) at a conversion price, exercise
price, exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for the Common Stock
at any time after the initial issuance of such debt or equity securities (other than pursuant to a customary “cashless exercise”
provision), or (B) with a conversion, exercise or exchange price that is subject to being reset at some future date after the
initial issuance of such debt or equity security or upon the occurrence of specified or contingent events directly or indirectly
related to the business of the Company or the market for the Common Stock (including, without limitation, any “full ratchet”
or “weighted average” anti-dilution provisions), (ii) issues or sells any debt or equity securities, including without
limitation, Common Stock or Common Stock Equivalents, either (A) at a price that is subject to being reset at some future date
after the initial issuance of such debt or equity security or upon the occurrence of specified or contingent events directly or
indirectly related to the business of the Company or the market for the Common Stock, or (B) that is subject to or contains any
put, call, redemption, buy-back, price-reset or other similar provision or mechanism (including, without limitation, a “Black-Scholes”
put or call right) that provides for the issuance of additional debt or equity securities of the Company or the payment of cash
by the Company, or (iii) enters into any agreement, including, but not limited to, an “equity line of credit”, “at-the-market
offering” or other continuous offering or similar offering of Common Stock or Common Stock Equivalents, whereby the Company
may sell Common Stock or Common Stock Equivalents at a future determined price. “Exempt Issuance” means the
issuance of (a) Common Stock or options to employees, officers, directors or vendors of the Company pursuant to any stock or option
plan duly adopted for such purpose, by the Board of Directors or a majority of the members of a committee of directors established
for such purpose, (b) (1) any Securities issued to the Investor pursuant to this Agreement, (2) any securities issued to the Investor
pursuant to any other agreement between the Company and the Investor, (3) any securities issued upon the exercise or exchange
of or conversion of any shares of Common Stock or Common Stock Equivalents held by the Investor at any time, or (4) any securities
issued upon the exercise or exchange of or conversion of any Common Stock Equivalents issued and outstanding on the date of this
Agreement, provided that such securities referred to in this clause (4) have not been amended since the date of this Agreement
to increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities,
(c) securities issued pursuant to acquisitions or strategic transactions approved by the Board of Directors or a majority of the
members of a committee of directors established for such purpose, which acquisitions or strategic transactions can have a Variable
Rate Transaction component, provided that any such issuance shall only be to a Person (or to the equity holders of a Person) which
is, itself or through its subsidiaries, an operating company or an asset in a business synergistic with the business of the Company
and shall provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction
in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business
is investing in securities, or (d) up to $9,500,000 of shares of Common Stock through Cowen Company, LLC, as sales agent, pursuant
to the Sales Agreement, dated May 1, 2018, by and between the Company and Cowen and Company, LLC.


 






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6.       TRANSFER
AGENT INSTRUCTIONS.


 


(a)        On the date of this Agreement, the Company shall issue irrevocable instructions to the Transfer Agent substantially in the form
attached hereto as Exhibit D to issue the Commitment Shares in accordance with the terms of this Agreement (the
“Irrevocable Transfer Agent Instructions”). The certificate(s) or book-entry statement(s) representing the
Commitment Shares, except as set forth below, shall bear the following restrictive legend (the “Restrictive Legend”):


 


THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE
STATE SECURITIES LAWS. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR
ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR APPLICABLE STATE SECURITIES LAWS, UNLESS SOLD PURSUANT TO: (1) RULE 144 UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (2)
AN OPINION OF HOLDER’S COUNSEL, IN A CUSTOMARY FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR APPLICABLE STATE
SECURITIES LAWS.


 






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(b)        On the earlier of (i) the Commencement Date and (ii) such time that the Investor shall request in connection with a sale, assignment,
transfer or other disposition of Commitment Shares, provided all conditions of Rule 144 under the Securities Act are met, the
Company shall, no later than two (2) Business Days following the delivery by the Investor to the Company or the Transfer Agent
of one or more legended certificates or book-entry statements representing Commitment Shares (which certificates or book-entry
statements the Investor shall promptly deliver on or prior to the first to occur of the events described in clauses (i) and (ii)
of this sentence), as directed by the Investor, issue and deliver (or cause to be issued and delivered) to the Investor, as requested
by the Investor, either: (A) a certificate or book-entry statement representing such Commitment Shares that is free from all restrictive
and other legends or (B) a number of shares of Common Stock equal to the number of Commitment Shares represented by the certificate(s)
or book-entry statement(s) so delivered by the Investor as DWAC Shares. The Company shall take all actions to carry out the intent
and accomplish the purposes of the immediately preceding sentence, including, without limitation, delivering all such legal opinions,
consents, certificates, resolutions and instructions to the Transfer Agent, and any successor transfer agent of the Company, as
may be requested from time to time by the Investor or necessary or desirable to carry out the intent and accomplish the purposes
of the immediately preceding sentence. On the Commencement Date, the Company shall issue to the Transfer Agent, and any subsequent
transfer agent, (i) irrevocable instructions in the form substantially similar to those used by the Investor in substantially
similar transactions (the “Commencement Irrevocable Transfer Agent Instructions”) and (ii) the notice of effectiveness
of the Registration Statement in the form attached as an exhibit to the Registration Rights Agreement (the “Notice of
Effectiveness of Registration Statement”), in each case to issue the Purchase Shares in accordance with the terms of
this Agreement and the Registration Rights Agreement. All Purchase Shares to be issued from and after Commencement to or for the
benefit of the Investor pursuant to this Agreement shall be issued only as DWAC Shares. The Company represents and warrants to
the Investor that, while this Agreement is effective, no instruction other than the Commencement Irrevocable Transfer Agent Instructions
and the Notice of Effectiveness of Registration Statement referred to in this Section 6(b) will be given by the Company
to the Transfer Agent with respect to the Purchase Shares or the Commitment Shares from and after Commencement, and the Purchase
Shares and the Commitment Shares covered by the Registration Statement shall otherwise be freely transferable on the books and
records of the Company. The Company agrees that if the Company fails to fully comply with the provisions of this Section 6(b)
within five (5) Business Days of the Investor providing the deliveries referred to above, the Company shall, at the Investor’s
written instruction, purchase such shares of Common Stock containing the Restrictive Legend from the Investor at the greater of
the (i) purchase price paid for such shares of Common Stock (as applicable) and (ii) the Closing Sale Price of the Common Stock
on the date of the Investor’s written instruction.


 






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		7.	CONDITIONS
                                         TO THE COMPANY’S RIGHT TO COMMENCE SALES
OF SHARES OF COMMON STOCK.






 


The
right of the Company hereunder to commence sales of the Purchase Shares on the Commencement Date is subject to the satisfaction
of each of the following conditions:


 


(a)      The
Investor shall have executed each of the Transaction Documents and delivered the same to the Company;


 


(b)      The
Registration Statement covering the resale of the Purchase Shares and all of the Commitment Shares shall have been declared effective
under the Securities Act by the SEC, and no stop order with respect to the Registration Statement shall be pending or threatened
by the SEC; and


 


(c)       The
representations and warranties of the Investor shall be true and correct in all material respects as of the date hereof and as
of the Commencement Date as though made at that time.


 


		8.	CONDITIONS
                                         TO THE INVESTOR’S OBLIGATION TO PURCHASE SHARES OF COMMON STOCK.



 


The
obligation of the Investor to buy Purchase Shares under this Agreement is subject to the satisfaction of each of the following
conditions on or prior to the Commencement Date and, once such conditions have been initially satisfied, there shall not be any
ongoing obligation to satisfy such conditions after the Commencement has occurred:


 


(a)       The
Company shall have executed each of the Transaction Documents and delivered the same to the Investor;


 


(b)       The
Company shall (i) have issued or caused to be issued to the Investor (1) one or more certificates or book-entry statements representing
the Commitment Shares free from all restrictive and other legends or (2) a number of shares of Common Stock equal to the number
of Commitment Shares as DWAC Shares, in each case in accordance with Section 6(b) and (ii) have paid to the Investor the
Commitment Fee;


 


(c)       The
Common Stock shall be listed or quoted on the Principal Market, trading in the Common Stock shall not have been within the last
365 days suspended by the SEC or the Principal Market, and all Securities to be issued by the Company to the Investor pursuant
to this Agreement shall have been approved for listing or quotation on the Principal Market in accordance with the applicable
rules and regulations of the Principal Market, subject only to official notice of issuance;


 


(d)       The
Investor shall have received the opinions of the Company’s legal counsel dated as of the Commencement Date substantially
in the form heretofore agreed by the parties hereto;


 


(e)       The
representations and warranties of the Company shall be true and correct in all material respects (except to the extent that any
of such representations and warranties is already qualified as to materiality in Section 4 above, in which case, the portion of
such representations and warranties so qualified shall be true and correct without further qualification) as of the date hereof
and as of the Commencement Date as though made at that time (except for representations and warranties that speak as of a specific
date, which shall be true and correct as of such date) and the Company shall have performed, satisfied and complied with the covenants,
agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at
or prior to the Commencement Date. The Investor shall have received a certificate, executed by the CEO, President or CFO of the
Company, dated as of the Commencement Date, to the foregoing effect in the form attached hereto as Exhibit A;


 






    -26- 


     


    

 


(f)       The
Board of Directors of the Company shall have adopted resolutions in substantially the form attached hereto as Exhibit B
which shall be in full force and effect without any amendment or supplement thereto as of the Commencement Date;


 


(g)       As
of the Commencement Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose
of effecting purchases of Purchase Shares hereunder, 5,000,000 shares of Common Stock;


 


(h)       The
Commencement Irrevocable Transfer Agent Instructions and the Notice of Effectiveness of Registration Statement each shall have
been delivered to and acknowledged in writing by the Company and the Company’s Transfer Agent (or any successor transfer
agent);


 


(i)       The
Company shall have delivered to the Investor a certificate evidencing the incorporation and good standing of the Company in the
State of Nevada issued by the Secretary of State of the State of Nevada as of a date within ten (10) Business Days of the Commencement
Date;


 


(j)       The
Company shall have delivered to the Investor a certified copy of the Articles of Incorporation as certified by the Secretary of
State of the State of Nevada within ten (10) Business Days of the Commencement Date;


 


(k)       The
Company shall have delivered to the Investor a secretary’s certificate executed by the Secretary of the Company, dated as
of the Commencement Date, in the form attached hereto as Exhibit C;


 


(l)       The
Registration Statement covering the resale of the Purchase Shares and all of the Commitment Shares shall have been declared effective
under the Securities Act by the SEC, and no stop order with respect to the Registration Statement shall be pending or threatened
by the SEC. The Company shall have prepared and filed with the SEC, not later than one (1) Business Day after the effective date
of the Registration Statement, a final and complete prospectus (the preliminary form of which shall be included in the Registration
Statement) and shall have delivered to the Investor a true and complete copy thereof. Such prospectus shall be current and available
for the resale by the Investor of all of the Securities covered thereby. The Current Report shall have been filed with the SEC,
as required pursuant to Section 5(a). All reports, schedules, registrations, forms, statements, information and other documents
required to have been filed by the Company with the SEC from and after the date hereof through and including the Commencement
Date pursuant to the reporting requirements of the Exchange Act shall have been filed with the SEC within the applicable time
periods prescribed for such filings under the Exchange Act;


 


(m)       No
Event of Default has occurred, or any event which, after notice and/or lapse of time, would become an Event of Default has occurred;


 


(n)       All
federal, state and local governmental laws, rules and regulations applicable to the transactions contemplated by the Transaction
Documents and necessary for the execution, delivery and performance of the Transaction Documents and the consummation of the transactions
contemplated thereby in accordance with the terms thereof shall have been complied with, and all consents, authorizations and
orders of, and all filings and registrations with, all federal, state and local courts or governmental agencies and all federal,
state and local regulatory or self-regulatory agencies necessary for the execution, delivery and performance of the Transaction
Documents and the consummation of the transactions contemplated thereby in accordance with the terms thereof shall have been obtained
or made, including, without limitation, in each case those required under the Securities Act, the Exchange Act, applicable state
securities or “Blue Sky” laws or applicable rules and regulations of the Principal Market, or otherwise required by
the SEC, the Principal Market or any state securities regulators;


 






    -27- 


     


    

 


(o)       No
statute, regulation, order, decree, writ, ruling or injunction shall have been enacted, entered, promulgated, threatened or endorsed
by any federal, state, local or foreign court or governmental authority of competent jurisdiction which prohibits the consummation
of or which would materially modify or delay any of the transactions contemplated by the Transaction Documents; and


 


(p)       No
action, suit or proceeding before any federal, state, local or foreign arbitrator or any court or governmental authority of competent
jurisdiction shall have been commenced or threatened, and no inquiry or investigation by any federal, state, local or foreign
governmental authority of competent jurisdiction shall have been commenced or threatened, against the Company, or any of the officers,
directors or affiliates of the Company, seeking to restrain, prevent or change the transactions contemplated by the Transaction
Documents, or seeking material damages in connection with such transactions.


 


		9.	INDEMNIFICATION.
                                         



 


In
consideration of the Investor’s execution and delivery of the Transaction Documents and acquiring the Securities hereunder
and in addition to all of the Company’s other obligations under the Transaction Documents, the Company shall defend, protect,
indemnify and hold harmless the Investor and all of its affiliates, stockholders, officers, directors, members, managers, employees
and direct or indirect investors and any of the foregoing Person’s agents or other representatives (including, without limitation,
those retained in connection with the transactions contemplated by this Agreement) (collectively, the “Indemnitees”)
from and against any and all actions, causes of action, suits, claims, losses, costs, penalties, fees, liabilities and damages,
and expenses in connection therewith (irrespective of whether any such Indemnitee is a party to the action for which indemnification
hereunder is sought), and including reasonable attorneys’ fees and disbursements (the “Indemnified Liabilities”),
incurred by any Indemnitee as a result of, or arising out of, or relating to (a) any misrepresentation or breach of any representation
or warranty made by the Company in the Transaction Documents or any other certificate, instrument or document contemplated hereby
or thereby, (b) any breach of any covenant, agreement or obligation of the Company contained in the Transaction Documents or any
other certificate, instrument or document contemplated hereby or thereby, or (c) any cause of action, suit or claim brought or
made against such Indemnitee and arising out of or resulting from the execution, delivery, performance or enforcement of the Transaction
Documents or any other certificate, instrument or document contemplated hereby or thereby, other than, in the case of clause (c),
with respect to Indemnified Liabilities which directly and primarily result from the fraud, gross negligence or willful misconduct
of an Indemnitee. The indemnity in this Section 9 shall not apply to amounts paid in settlement of any claim if such settlement
is effected without the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned or
delayed. To the extent that the foregoing undertaking by the Company may be unenforceable for any reason, the Company shall make
the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities which is permissible under applicable
law. Payment under this indemnification shall be made within thirty (30) days from the date the Investor makes written request
for it. A certificate containing reasonable detail as to the amount of such indemnification submitted to the Company by the Investor
shall be conclusive evidence, absent manifest error, of the amount due from the Company to the Investor. If any action shall be
brought against any Indemnitee in respect of which indemnity may be sought pursuant to this Agreement, such Indemnitee 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 Indemnitee. Any Indemnitee 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 Indemnitee, 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, a material conflict on any material issue between the position of the Company
and the position of such Indemnitee, in which case the Company shall be responsible for the reasonable fees and expenses of no
more than one such separate counsel.


 






    -28- 


     


    

 


10.       EVENTS
OF DEFAULT. 


 


An
“Event of Default” shall be deemed to have occurred at any time as any of the following events occurs:


 


(a)       the
effectiveness of a registration statement registering the resale of the Securities lapses for any reason (including, without limitation,
the issuance of a stop order or similar order) or such registration statement (or the prospectus forming a part thereof) is unavailable
to the Investor for resale of any or all of the Securities to be issued to the Investor under the Transaction Documents, and such
lapse or unavailability continues for a period of ten (10) consecutive Business Days or for more than an aggregate of thirty (30)
Business Days in any 365-day period, but excluding a lapse or unavailability where (i) the Company terminates a registration statement
after the Investor has confirmed in writing that all of the Securities covered thereby have been resold or (ii) the Company supersedes
one registration statement with another registration statement, including (without limitation) by terminating a prior registration
statement when it is effectively replaced with a new registration statement covering Securities (provided in the case of this
clause (ii) that all of the Securities covered by the superseded (or terminated) registration statement that have not theretofore
been resold are included in the superseding (or new) registration statement);


 


(b)       the
suspension of the Common Stock from trading on the Principal Market for a period of one (1) Business Day, provided that the Company
may not direct the Investor to purchase any shares of Common Stock during any such suspension;


 


(c)       the
delisting of the Common Stock from The Nasdaq Global Market, provided, however, that the Common Stock is not immediately thereafter
trading on the New York Stock Exchange, The Nasdaq Capital Market, The Nasdaq Global Select Market, the NYSE American, the NYSE
Arca, the OTC Bulletin Board or OTC Markets (or nationally recognized successor to any of the foregoing);


 


(d)       the
failure for any reason by the Transfer Agent to issue Purchase Shares to the Investor within two (2) Business Days after the Purchase
Date, Accelerated Purchase Date, Additional Accelerated Purchase Date or Tranche Purchase Date, as applicable, on which the Investor
is entitled to receive such Purchase Shares;


 


(e)       the
Company breaches any representation, warranty, covenant or other term or condition under any Transaction Document if such breach
would reasonably be expected to have a Material Adverse Effect and except, in the case of a breach of a covenant which is reasonably
curable, only if such breach continues for a period of at least five (5) Business Days;


 


(f)       if
any Person commences a proceeding against the Company pursuant to or within the meaning of any Bankruptcy Law;


 


(g)       if
the Company, pursuant to or within the meaning of any Bankruptcy Law, (i) commences a voluntary case, (ii) consents to the entry
of an order for relief against it in an involuntary case, (iii) consents to the appointment of a Custodian of it or for all or
substantially all of its property, or (iv) makes a general assignment for the benefit of its creditors or is generally unable
to pay its debts as the same become due;


 






    -29- 


     


    

 


(h)       a
court of competent jurisdiction enters an order or decree under any Bankruptcy Law that (i) is for relief against the Company
in an involuntary case, (ii) appoints a Custodian of the Company or for all or substantially all of its property, or (iii) orders
the liquidation of the Company or any Subsidiary;


 


(i)       if
at any time the Company is not eligible to transfer its Common Stock electronically as DWAC Shares; or


 


(j)       if
at any time after the Commencement Date, the Exchange Cap is reached (to the extent such Exchange Cap is applicable pursuant to
Section 2(f) hereof).


 


In
addition to any other rights and remedies under applicable law and this Agreement, so long as an Event of Default has occurred
and is continuing, or if any event which, after notice and/or lapse of time, would become an Event of Default, has occurred and
is continuing, the Company shall not deliver to the Investor any Regular Purchase Notice, Accelerated Purchase Notice, Additional
Accelerated Purchase Notice or Tranche Purchase Notice.


 


11.       TERMINATION


 


This
Agreement may be terminated only as follows:


 


(a)       If
pursuant to or within the meaning of any Bankruptcy Law, the Company commences a voluntary case or any Person commences a proceeding
against the Company, a Custodian is appointed for the Company or for all or substantially all of its property, or the Company
makes a general assignment for the benefit of its creditors (any of which would be an Event of Default as described in Sections
10(f), 10(g) and 10(h) hereof), this Agreement shall automatically terminate without any liability or payment
to the Company (except as set forth below) without further action or notice by any Person.


 


(b)       In
the event that (i) the Company fails to file the Registration Statement with the SEC within the period specified in Section
5(a) hereof in accordance with the terms of the Registration Rights Agreement or (ii) the Commencement shall not have occurred
on or before November 30, 2019, due to the failure to satisfy the conditions set forth in Sections 7 and 8 above
with respect to the Commencement, then, in the case of clause (i) above, this Agreement may be terminated by the Investor at any
time prior to the filing of the Registration Statement and, in the case of clause (ii) above, this Agreement may be terminated
by either party at the close of business on November 30, 2019 or thereafter, in each case without liability of such party to the
other party (except as set forth below); provided, however, that the right to terminate this Agreement under this Section 11(b)
shall not be available to any party if such party is then in breach of any covenant or agreement contained in this Agreement
or any representation or warranty of such party contained in this Agreement fails to be true and correct such that the conditions
set forth in Section 7(c) or Section 8(e), as applicable, could not then be satisfied.


 


(c)       
At any time after the Commencement Date, the Company shall have the option to terminate this Agreement for any reason or for no
reason by delivering notice (a “Company Termination Notice”) to the Investor electing to terminate this Agreement
without any liability whatsoever of any party to any other party under this Agreement (except as set forth below). The Company
Termination Notice shall not be effective until one (1) Business Day after it has been received by the Investor.


 






    -30- 


     


    

 


(d)       This
Agreement shall automatically terminate on the date that the Company sells and the Investor purchases the full Available Amount
as provided herein, without any action or notice on the part of any party and without any liability whatsoever of any party to
any other party under this Agreement (except as set forth below).


 


(e)       If,
for any reason or for no reason, the full Available Amount has not been purchased in accordance with Section 2 of
this Agreement by the Maturity Date, this Agreement shall automatically terminate on the Maturity Date, without any action or
notice on the part of any party and without any liability whatsoever of any party to any other party under this Agreement (except
as set forth below).


 


Except
as set forth in Sections 11(a) (in respect of an Event of Default under Sections 10(f), 10(g) and 10(h)),
11(d) and 11(e), any termination of this Agreement pursuant to this Section 11 shall be effected by written
notice from the Company to the Investor, or the Investor to the Company, as the case may be, setting forth the basis for the termination
hereof. The representations and warranties and covenants of the Company and the Investor contained in Sections 3, 4,
5, and 6 hereof, the indemnification provisions set forth in Section 9 hereof and the agreements and covenants
set forth in Sections 10, 11 and 12 shall survive the execution and delivery of this Agreement and any termination
of this Agreement. No termination of this Agreement shall (i) affect the Company’s or the Investor’s rights or obligations
under (A) this Agreement with respect to any pending Regular Purchase, Accelerated Purchase, Additional Accelerated Purchase or
Tranche Purchase, and the Company and the Investor shall complete their respective obligations with respect to any pending Regular
Purchase, Accelerated Purchase, Additional Accelerated Purchase and Tranche Purchase under this Agreement and (B) the Registration
Rights Agreement, which shall survive any such termination, or (ii) be deemed to release the Company or the Investor from any
liability for intentional misrepresentation or willful breach of any of the Transaction Documents.


 


12.       MISCELLANEOUS.


 


(a)       Governing
Law; Jurisdiction; Jury Trial. The corporate laws of the State of Nevada shall govern all issues concerning the relative rights
of the Company and its stockholders. All other questions concerning the construction, validity, enforcement and interpretation
of this Agreement and the other Transaction Documents shall be governed by the internal laws of the State of Illinois, without
giving effect to any choice of law or conflict of law provision or rule (whether of the State of Illinois or any other jurisdictions)
that would cause the application of the laws of any jurisdictions other than the State of Illinois. Each party hereby irrevocably
submits to the exclusive jurisdiction of the state and federal courts sitting in the State of Illinois, County of Cook, for the
adjudication of any dispute hereunder or under the other Transaction Documents or in connection herewith or therewith, or with
any transaction contemplated hereby or discussed herein, 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 to such party at the address for such 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. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY
HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR ARISING
OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.


 






    -31- 


     


    

 


(b)         Counterparts.
This Agreement may be executed in two or more identical counterparts, all of which 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; provided that a
facsimile signature or signature delivered by e-mail in a “.pdf” format data file shall be considered due execution
and shall be binding upon the signatory thereto with the same force and effect as if the signature were an original signature.


 


(c)         Headings.
The headings of this Agreement are for convenience of reference and shall not form part of, or affect the interpretation of, this
Agreement.


 


(d)         Severability.
If any provision of this Agreement shall be invalid or unenforceable in any jurisdiction, such invalidity or unenforceability
shall not affect the validity or enforceability of the remainder of this Agreement in that jurisdiction or the validity or enforceability
of any provision of this Agreement in any other jurisdiction.


 


(e)         Entire
Agreement. The Transaction Documents supersede all other prior oral or written agreements between the Investor, the Company,
their affiliates and Persons acting on their behalf with respect to the subject matter thereof, and this Agreement, the other
Transaction Documents and the instruments referenced herein contain the entire understanding of the parties with respect to the
matters covered herein and therein and, except as specifically set forth herein or therein, neither the Company nor the Investor
makes any representation, warranty, covenant or undertaking with respect to such matters. The Company acknowledges and agrees
that is has not relied on, in any manner whatsoever, any representations or statements, written or oral, other than as expressly
set forth in the Transaction Documents.


 


(f)         Notices.
Any notices, consents or other communications required or permitted to be given under the terms of this Agreement must be in writing
and will be deemed to have been delivered: (i) upon receipt when delivered personally; (ii) upon receipt when sent by facsimile
or email (provided confirmation of transmission is mechanically or electronically generated and kept on file by the sending party);
or (iii) one Business Day after deposit with a nationally recognized overnight delivery service, in each case properly addressed
to the party to receive the same. The addresses for such communications shall be:


 


If
to the Company:





Tonix
Pharmaceuticals Holding Corp.





509
Madison Avenue, Suite 1608





New
York, New York 10022





		Telephone:	(212)
980-9155






		Facsimile:	(212)
923-5700






		E-mail:	seth.lederman@tonixpharma.com






		Attention:	Seth
Lederman



 


With
a copy to (which shall not constitute notice or service of process):





Lowenstein
Sandler LLP





One
Lowenstein Drive





Roseland,
NJ 07068





		Telephone:	(973)
597-2900






		Facsimile:	(973)
597-2400






		E-mail:	sskolnick@lowenstein.com






		Attention:	Steven
M. Skolnick, Esq.



 






    -32- 


     


    

 


If
to the Investor:





Lincoln
Park Capital Fund, LLC





440
North Wells, Suite 410





Chicago,
IL 60654





		Telephone:	312-822-9300






		Facsimile:	312-822-9301






		E-mail:	jscheinfeld@lpcfunds.com/jcope@lpcfunds.com






		Attention:	Josh
Scheinfeld/Jonathan Cope



 


With
a copy to (which shall not constitute notice or service of process):





K&L
Gates, LLP





200
S. Biscayne Blvd., Ste. 3900





Miami,
Florida 33131





		Telephone:	305.539.3306






		Facsimile:	305.358.7095






		E-mail:	clayton.parker@klgates.com






		Attention:	Clayton
E. Parker, Esq.



 


If
to the Transfer Agent:





vStock
Transfer, LLC





18
Lafayette Place





Woodmere,
NY 11598





		Telephone:	(212)
828-8436






		Facsimile:	(646)
536-3179






		E-mail:	info@vstocktransfer.com






		Attention:	Yoel
Goldfeder



 


or
at such other address, email address and/or facsimile number and/or to the attention of such other Person as the recipient party
has specified by written notice given to each other party three (3) Business Days prior to the effectiveness of such change. Written
confirmation of receipt (A) given by the recipient of such notice, consent or other communication, (B) mechanically or electronically
generated by the sender’s facsimile machine or email account containing the time, date, and recipient facsimile number or
email address, as applicable, and an image of the first page of such transmission or (C) provided by a nationally recognized overnight
delivery service, shall be rebuttable evidence of personal service, receipt by facsimile or receipt from a nationally recognized
overnight delivery service in accordance with clause (i), (ii) or (iii) above, respectively.


 


(g)       Successors
and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and any permitted successors and
assigns of the Company. The Company shall not assign this Agreement or any rights or obligations hereunder without the prior written
consent of the Investor, including by merger or consolidation. The Investor may not assign its rights or obligations under this
Agreement.


 


(h)       No
Third Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and any permitted successors and
assigns of the Company and, except as set forth in Section 9, is not for the benefit of, nor may any provision hereof be enforced
by, any other Person.


 


(i)       Publicity.
The Company shall afford the Investor and its counsel with the opportunity to review and comment upon the form and substance of,
and shall give reasonable consideration to all such comments from the Investor or its counsel on, any press release, SEC filing
or any other public disclosure by or on behalf of the Company relating to the Investor, its purchases hereunder or any aspect
of the Securities, the Transaction Documents or the transactions contemplated thereby, not less than 24 hours prior to the issuance,
filing or public disclosure thereof. The Investor must be provided with a final version of any such press release, SEC filing
or other public disclosure at least 24 hours prior to any release, filing or use by the Company thereof. The Company agrees and
acknowledges that its failure to fully comply with this provision constitutes a Material Adverse Effect.


 






    -33- 


     


    

 


(j)       Further
Assurances. Each party shall do and perform, or cause to be done and performed, all such further acts and things, and shall
execute and deliver all such other agreements, certificates, instruments and documents, as the other party may reasonably request
in order to consummate and make effective, as soon as reasonably possible, the Commencement, and to carry out the intent and accomplish
the purposes of this Agreement and the consummation of the transactions contemplated hereby.


 


(k)       No
Financial Advisor, Placement Agent, Broker or Finder. The Company represents and warrants to the Investor that it has not
engaged any financial advisor, placement agent, broker or finder in connection with the transactions contemplated hereby. The
Investor represents and warrants to the Company that it has not engaged any financial advisor, placement agent, broker or finder
in connection with the transactions contemplated hereby. The Company shall be responsible for the payment of any fees or commissions,
if any, of any financial advisor, placement agent, broker or finder relating to or arising out of the transactions contemplated
hereby. The Company shall pay, and hold the Investor harmless against, any liability, loss or expense (including, without limitation,
attorneys’ fees and out of pocket expenses) arising in connection with any such claim.


 


(l)       No
Strict Construction. The language used in this Agreement will be deemed to be the language chosen by the parties to express
their mutual intent, and no rules of strict construction will be applied against any party.


 


(m)       Remedies,
Other Obligations, Breaches and Injunctive Relief. The Investor’s remedies provided in this Agreement, including, without
limitation, the Investor’s remedies provided in Section 9, shall be cumulative and in addition to all other remedies available
to the Investor under this Agreement, at law or in equity (including a decree of specific performance and/or other injunctive
relief), no remedy of the Investor contained herein shall be deemed a waiver of compliance with the provisions giving rise to
such remedy and nothing herein shall limit the Investor’s right to pursue actual damages for any failure by the Company
to comply with the terms of this Agreement. The Company acknowledges that a breach by it of its obligations hereunder will cause
irreparable harm to the Investor and that the remedy at law for any such breach may be inadequate. The Company therefore agrees
that, in the event of any such breach or threatened breach, the Investor shall be entitled, in addition to all other available
remedies, to an injunction restraining any breach, without the necessity of showing economic loss and without any bond or other
security being required.


 


(n)       Enforcement
Costs. If: (i) this Agreement is placed by the Investor in the hands of an attorney for enforcement or is enforced by the
Investor through any legal proceeding; (ii) an attorney is retained to represent the Investor in any bankruptcy, reorganization,
receivership or other proceedings affecting creditors’ rights and involving a claim under this Agreement; or (iii) an attorney
is retained to represent the Investor in any other proceedings whatsoever in connection with this Agreement, then the Company
shall pay to the Investor, as incurred by the Investor, all reasonable costs and expenses including attorneys’ fees incurred
in connection therewith, in addition to all other amounts due hereunder. If this Agreement is placed by the Company in the hands
of an attorney for enforcement or is enforced by the Company through any legal proceeding, then the Investor shall pay to the
Company, as incurred by the Company, all reasonable costs and expenses, including attorneys’ fees incurred in connection
therewith, in addition to all other amounts due hereunder.


 






    -34- 


     


    

 


(o)       Amendment
and Waiver; Failure or Indulgence Not Waiver. No provision of this Agreement may be amended or waived by the parties from
and after the date that is one (1) Business Day immediately preceding the initial filing of the Registration Statement with the
SEC. Subject to the immediately preceding sentence, (i) no provision of this Agreement may be amended other than by a written
instrument signed by both parties hereto and (ii) no provision of this Agreement may be waived other than in a written instrument
signed by the party against whom enforcement of such waiver is sought. No failure or delay in the exercise of any power, right
or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or
privilege preclude other or further exercise thereof or of any other right, power or privilege.


 


*     *     *     *     *


 




    -35- 


     


    

 


IN
WITNESS WHEREOF, the Investor and the Company have caused this Agreement to be duly executed as of the date first written
above.


 










	 	THE COMPANY:
	 	 
	 	TONIX PHARMACEUTICALS HOLDING CORP.
	 	 
	 	 
	 	By:  	/s/ Seth Lederman
	 	Name: Seth Lederman
	 	Title:   Chief Executive Officer
	 	 
	 	 
	 	INVESTOR:
	 	 
	 	LINCOLN PARK CAPITAL FUND, LLC
	 	BY: LINCOLN PARK CAPITAL, LLC
	 	BY: ROCKLEDGE CAPITAL CORPORATION
	 	 
	 	 
	 	By:  	/s/ Josh Scheinfeld
	 	Name: Josh Scheinfeld
	 	Title: President



















 






    -36- 


     


    

 


EXHIBITS


 


	ExhibitA	Form
of Officer’s Certificate






	ExhibitB	Form
of Resolutions of Board of Directors of the Company






	ExhibitC	Form
of Secretary’s Certificate






	ExhibitD	Form
of Letter to Transfer Agent



 




     


     


    

 


EXHIBIT
A


 


FORM
OF OFFICER’S CERTIFICATE


 


This
Officer’s Certificate (“Certificate”) is being delivered pursuant to Section 8(e) of that certain
Purchase Agreement dated as of August 20, 2019, (“Purchase Agreement”), by and between TONIX PHARMACEUTICALS
HOLDING CORP., a Nevada corporation (the “Company”), and LINCOLN PARK CAPITAL FUND, LLC (the “Investor”).
Terms used herein and not otherwise defined shall have the meanings ascribed to them in the Purchase Agreement.


 


The
undersigned, ___________, ______________ of the Company, hereby certifies, on behalf of the Company and not in his individual
capacity, as follows:


 


1.       I
am the _____________ of the Company and make the statements contained in this Certificate;


 


2.       The
representations and warranties of the Company are true and correct in all material respects (except to the extent that any of
such representations and warranties is already qualified as to materiality in Section 4 of the Purchase Agreement, in which case,
such representations and warranties are true and correct without further qualification) as of the date when made and as of the
Commencement Date as though made at that time (except for representations and warranties that speak as of a specific date, in
which case such representations and warranties are true and correct as of such date);


 


3.       The
Company has performed, satisfied and complied in all material respects with covenants, agreements and conditions required by the
Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Commencement Date.


 


4.       The
Company has not taken any steps, and does not currently expect to take any steps, to seek protection pursuant to any Bankruptcy
Law nor does the Company or any of its Subsidiaries have any knowledge or reason to believe that its creditors intend to initiate
involuntary bankruptcy or insolvency proceedings. The Company is financially solvent and is generally able to pay its debts as
they become due.




 


IN
WITNESS WHEREOF, I have hereunder signed my name on this ___ day of ___________.


 





	 	Name:	 
	 	Title:	 




 


The
undersigned as Secretary of TONIX PHARMACEUTICALS HOLDING CORP., a Nevada corporation, hereby certifies that ___________
is the duly elected, appointed, qualified and acting ________ of _________ and that the signature appearing above is his genuine
signature.


 





	 	Secretary	 


 






     


     


    

 


EXHIBIT B


 


FORM
OF COMPANY RESOLUTIONS





FOR
SIGNING PURCHASE AGREEMENT


 


UNANIMOUS
WRITTEN CONSENT OF





TONIX
PHARMACEUTICALS HOLDING CORP.


 


In
accordance with the corporate laws of the state of Nevada, the undersigned, being all of the directors of TONIX PHARMACEUTICALS
HOLDING CORP., a Nevada corporation (the “Corporation”) do hereby consent to and adopt the following resolutions
as the action of the Board of Directors for and on behalf of the Corporation and hereby direct that this Consent be filed with
the minutes of the proceedings of the Board of Directors:


 


WHEREAS,
there has been presented to the Board of Directors of the Corporation a draft of the Purchase Agreement (the “Purchase Agreement”)
by and between the Corporation and Lincoln Park Capital Fund, LLC (“Lincoln Park”), providing for the purchase by
Lincoln Park of up to Fifteen Million Dollars ($15,000,000) of the Corporation’s common stock, $0.001 par value per share
(the “Common Stock”); and


 


WHEREAS,
after careful consideration of the Purchase Agreement, the documents incident thereto and other factors deemed relevant by the
Board of Directors, the Board of Directors has determined that it is advisable and in the best interests of the Corporation to
engage in the transactions contemplated by the Purchase Agreement, including, but not limited to, the issuance of 355,290 shares
of Common Stock to Lincoln Park (the “Commitment Shares”) and the payment of $100,000 as a commitment fee (“Commitment
Fee”) and the sale of shares of Common Stock to Lincoln Park up to the available amount under the Purchase Agreement (the
“Purchase Shares”).


 


Transaction
Documents


 


NOW,
THEREFORE, BE IT RESOLVED, that the transactions described in the Purchase Agreement are hereby approved and ________________________________________
(the “Authorized Officers”) are severally authorized to execute and deliver the Purchase Agreement, and any other
agreements or documents contemplated thereby including, without limitation, a registration rights agreement (the “Registration
Rights Agreement”) providing for the registration of the shares of the Company’s Common Stock issuable in respect
of the Purchase Agreement on behalf of the Corporation, with such amendments, changes, additions and deletions as the Authorized
Officers may deem to be appropriate and approve on behalf of, the Corporation, such approval to be conclusively evidenced by the
signature of an Authorized Officer thereon; and


 


FURTHER
RESOLVED, that the terms and provisions of the Registration Rights Agreement by and among the Corporation and Lincoln Park are
hereby approved and the Authorized Officers are authorized to execute and deliver the Registration Rights Agreement (pursuant
to the terms of the Purchase Agreement), with such amendments, changes, additions and deletions as the Authorized Officer may
deem appropriate and approve on behalf of, the Corporation, such approval to be conclusively evidenced by the signature of an
Authorized Officer thereon; and


 


FURTHER
RESOLVED, that the terms and provisions of the forms of Irrevocable Transfer Agent Instructions and Notice of Effectiveness of
Registration Statement (collectively, the “Instructions”) are hereby approved and the Authorized Officers are authorized
to execute and deliver the Instructions on behalf of the Company in accordance with the Purchase Agreement, with such amendments,
changes, additions and deletions as the Authorized Officers may deem appropriate and approve on behalf of, the Corporation, such
approval to be conclusively evidenced by the signature of an Authorized Officer thereon; and


 






     


     


    

 


Execution
of Purchase Agreement


 


FURTHER
RESOLVED, that the Corporation be and it hereby is authorized to execute the Purchase Agreement providing for the purchase of
up to Fifteen Million Dollars ($15,000,000) of the Corporation’s common stock; and


 


Issuance
of Common Stock


 


FURTHER
RESOLVED, that the Corporation is hereby authorized to pay Lincoln Park the Commitment Fee and issue Lincoln Park Capital Fund,
LLC the Commitment Shares and that upon issuance of the Commitment Shares pursuant to the Purchase Agreement the Commitment Shares
shall be duly authorized, validly issued, fully paid and nonassessable with no personal liability attaching to the ownership thereof;
and


 


FURTHER
RESOLVED, that the Corporation is hereby authorized to issue shares of Common Stock upon the purchase of Purchase Shares up to
the Available Amount under the Purchase Agreement in accordance with the terms of the Purchase Agreement and that, upon issuance
of the Purchase Shares pursuant to the Purchase Agreement, the Purchase Shares will be duly authorized, validly issued, fully
paid and nonassessable with no personal liability attaching to the ownership thereof; and


 


FURTHER
RESOLVED, that the Corporation shall initially reserve 5,000,000 shares of Common Stock for issuance as Purchase Shares under
the Purchase Agreement. 


 


Registration
Statement


 


FURTHER
RESOLVED, that the Authorized Officers are hereby authorized, in the name and on behalf of the Corporation, to prepare and file
with the Securities and Exchange Commission (the “SEC”) a registration statement on Form S-1 or such other
form as may be applicable (the “Registration Statement”), for the offering and resale of the Commitment
Shares and the Purchase Shares (collectively, the “Equity Line Shares”) (together with any and all related
documentation).


 


NASDAQ
Listing of Additional Shares


 


FURTHER
RESOLVED, that the Authorized Officers are authorized in the name and on behalf of the Corporation to take any and all action
that he may deem necessary or advisable to effect the listing of the Equity Line Shares on The Nasdaq Global Market, including
without limitation, the filing of a Notification Form for Listing of Additional Shares and the payment of any required fees.


 


Approval
of Actions


 


FURTHER
RESOLVED, that, without limiting the foregoing, the Authorized Officers are, and each of them hereby is, authorized and directed
to proceed on behalf of the Corporation and to take all such steps as deemed necessary or appropriate, with the advice and assistance
of counsel, to cause the Corporation to consummate the agreements referred to herein and to perform its obligations under such
agreements; and


 


FURTHER
RESOLVED, that the Authorized Officers be, and each of them hereby is, authorized, empowered and directed on behalf of and in
the name of the Corporation, to take or cause to be taken all such further actions and to execute and deliver or cause to be executed
and delivered all such further agreements, amendments, documents, certificates, reports, schedules, applications, notices, letters
and undertakings and to incur and pay all such fees and expenses as in their judgment shall be necessary, proper or desirable
to carry into effect the purpose and intent of any and all of the foregoing resolutions, and that all actions heretofore taken
by any officer or director of the Corporation in connection with the transactions contemplated by the agreements described herein
are hereby approved, ratified and confirmed in all respects.


 






     


     


    

 


IN
WITNESS WHEREOF, the Board of Directors has executed and delivered this Consent effective as of __________, 2019.


______________________


 


______________________


 


______________________


 


being
all of the directors of TONIX PHARMACEUTICALS HOLDING CORP.


 




     


     


    

 


EXHIBIT
C


 


FORM
OF SECRETARY’S CERTIFICATE


 


This
Secretary’s Certificate (“Certificate”) is being delivered pursuant to Section 8(k) of that certain Purchase
Agreement dated as of August 20, 2019 (“Purchase Agreement”), by and between TONIX PHARMACEUTICALS HOLDING CORP.,
a Nevada corporation (the “Company”) and LINCOLN PARK CAPITAL FUND, LLC (the “Investor”), pursuant
to which the Company may sell to the Investor up to Fifteen Million Dollars ($15,000,000) of the Company’s Common Stock,
$0.001 par value per share (the “Common Stock”). Terms used herein and not otherwise defined shall have the meanings
ascribed to them in the Purchase Agreement.


 


The
undersigned, ____________, Secretary of the Company, hereby certifies, on behalf of the Company and not in his individual capacity,
as follows:


 


1.       I
am the Secretary of the Company and make the statements contained in this Secretary’s Certificate.


 


2.       Attached
hereto as Exhibit A and Exhibit B are true, correct and complete copies of the Company’s bylaws (“Bylaws”)
and articles of incorporation (“Charter”), in each case, as amended through the date hereof, and no action has been
taken by the Company, its directors, officers or stockholders, in contemplation of the filing of any further amendment relating
to or affecting the Bylaws or Charter.


 


3.       Attached
hereto as Exhibit C are true, correct and complete copies of the resolutions duly adopted by the Board of Directors of
the Company on _____________, at which a quorum was present and acting throughout. Such resolutions have not been amended, modified
or rescinded and remain in full force and effect and such resolutions are the only resolutions adopted by the Company’s
Board of Directors, or any committee thereof, or the stockholders of the Company relating to or affecting (i) the entering into
and performance of the Purchase Agreement, or the issuance, offering and sale of the Securities and (ii) and the performance of
the Company of its obligation under the Transaction Documents as contemplated therein.


 


4.       As
of the date hereof, the authorized, issued and reserved capital stock of the Company is as set forth on Exhibit D hereto.


 


IN
WITNESS WHEREOF, I have hereunder signed my name on this ___ day of ____________.


 





	 	Secretary	 





 


The
undersigned as ___________ of TONIX PHARMACEUTICALS HOLDING CORP., a Nevada corporation, hereby certifies that ____________
is the duly elected, appointed, qualified and acting Secretary of _________, and that the signature appearing above is his genuine
signature.


 





	 	 	 


 




     


     


    

 


EXHIBIT
D


 


FORM
OF LETTER TO THE TRANSFER AGENT FOR THE ISSUANCE OF THE COMMITMENT SHARES AT SIGNING OF THE PURCHASE AGREEMENT


 


[COMPANY
LETTERHEAD]


 


[DATE]


 


[TRANSFER
AGENT]





__________________





__________________





__________________


 


Re:
Issuance of Common Stock to Lincoln Park Capital Fund, LLC


 


Dear
________,


 


On
behalf of Tonix Pharmaceuticals Holding Corp. (the “Company”), you are hereby instructed to issue as soon as
possible a book-entry statement representing an aggregate of 355,290 shares of our common stock in the name of Lincoln
Park Capital Fund, LLC. The book-entry statement should be dated August 20, 2019. The book-entry statement should bear
the following restrictive legend:


 


THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE
STATE SECURITIES LAWS. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR
ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR APPLICABLE STATE SECURITIES LAWS, UNLESS SOLD PURSUANT TO: (1) RULE 144 UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (2)
AN OPINION OF HOLDER’S COUNSEL, IN A CUSTOMARY FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR APPLICABLE STATE
SECURITIES LAWS.


 






     


     


    

 


The
book-entry statement should be sent as soon as possible via overnight mail to the following address:


 


Lincoln
Park Capital Fund, LLC





440
North Wells, Suite 410





Chicago,
IL 60654





Attention:
Josh Scheinfeld/Jonathan Cope


 


Thank
you very much for your help. Please call me at ______________ if you have any questions or need anything further.


 


TONIX
PHARMACEUTICALS HOLDING CORP.


 


	BY:	 	 






[name]





[title]


 




     


     


    

 


FORM
OF COMPANY COUNSEL OPINION


 


Capitalized
terms used herein but not defined herein, have the meaning set forth in the Purchase Agreement. Based on the foregoing, and subject
to the assumptions and qualifications set forth herein, we are of the opinion that:


 


1.       The
Company is a corporation existing and in good standing under the laws of the State of Nevada. The Company is qualified to do business
as a foreign corporation and is in good standing in the State of New York.


 


2.       The
Company has the corporate power to execute and deliver, and perform its obligations under, each of the Purchase Agreement, the
Registration Rights Agreement and the other Transaction Documents to which it is a party. The Company has the corporate power
to conduct its business as, to the best of our knowledge, it is now conducted, and to own and use the properties owned and used
by it.


 


3.       The
execution, delivery and performance by the Company of each of the Purchase Agreement, the Registration Rights Agreement and the
other Transaction Documents to which it is a party have been duly authorized by all necessary corporate action on the part of
the Company. The execution and delivery by the Company of each of the Purchase Agreement, the Registration Rights Agreement and
the other Transaction Documents to which it is a party, the performance of the obligations of the Company thereunder and the consummation
by it of the transactions contemplated therein have been duly authorized and approved by the Company’s Board of Directors
and no further consent, approval or authorization of the Company, its Board of Directors or its stockholders is required. Each
of the Purchase Agreement, the Registration Rights Agreement and the other Transaction Documents to which the Company is a party
has been duly executed and delivered by the Company and constitutes the valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as such enforceability may be limited by general principles of equity
or applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws relating to, or affecting creditor’s
rights and remedies.


 


4.       The
execution, delivery and performance by the Company of each of the Purchase Agreement, the Registration Rights Agreement and the
other Transaction Documents to which it is a party, the consummation by the Company of the transactions contemplated thereby including
the offering, sale and issuance of the Securities in accordance with the terms and conditions of the Purchase Agreement, and fulfillment
and compliance by the Company with each of its obligations thereunder in accordance with the terms thereof, do not and will not:
(i) conflict with or violate any provision of the Articles of Incorporation or the Bylaws of the Company, (ii) conflict with,
constitute a breach of or default or an event which, with the giving of notice or lapse of time or both, constitutes or could
constitute a breach or a default under any material agreement, note, lease, mortgage, deed or other material instrument to which
the Company is a party or by which the Company or any of its assets are bound (“Material Agreements”), (iii) violate
any statute, law, rule or regulation applicable to the Company, or (iv) violate any order, writ, injunction or decree applicable
to the Company.


 


5.       The
issuance of the Securities pursuant to the terms and conditions of the Transaction Documents has been duly authorized by all necessary
corporate action on the part of the Company. The Commitment Shares are validly issued, fully paid and non-assessable, to our knowledge,
free of all taxes, liens, charges, restrictions, rights of first refusal and preemptive rights. 5,000,000 shares of Common Stock
have been properly reserved for issuance as Purchase Shares under the Purchase Agreement. When issued and paid for in accordance
with the Purchase Agreement, the Purchase Shares shall be validly issued, fully paid and non-assessable, to our knowledge, free
of all taxes, liens, charges, restrictions, rights of first refusal and preemptive rights. To our knowledge, the execution and
delivery of the Registration Rights Agreement do not, and the performance by the Company of its obligations thereunder shall not,
give rise to any rights of any other Person for the registration under the Securities Act of any shares of Common Stock or other
securities of the Company which have not been waived.


 






     


     


    

 


6.       As
of the date hereof, the authorized capital stock of the Company consists of 150,000,000 shares of common stock, par value $0.001
per share.


 


7.       Assuming
the accuracy of your representations and warranties contained in the Purchase Agreement, the offering, sale and issuance of the
Securities to you pursuant to the Purchase Agreement is exempt from registration under the Securities Act.


 


8.       Other
than that which has been obtained and completed prior to the date hereof, no authorization, approval, consent, filing or other
order of any federal or state governmental body, regulatory agency, or stock exchange or market, or any court, or, to our knowledge,
any third party is required to be obtained by the Company to enter into and perform its obligations under the Purchase Agreement,
the Registration Rights Agreement and the other Transaction Documents to which it is a party or for the Company to issue and sell
the Securities as contemplated by the Purchase Agreement.


 


9.      The Common Stock is registered pursuant to Section 12(b) of the Exchange Act. To our knowledge, since one year preceding the date
of the Purchase Agreement, the Company has been in compliance with the reporting requirements of the Exchange Act applicable to
it. To our knowledge, since one year preceding the date of the Purchase Agreement, the Company has not received any written notice
from any Person stating that the Company has not been in compliance with any of the rules and regulations (including the requirements
for continued listing) of the Principal Market.


 


10.    The Company is not, and after giving effect to the issuance and sale of the Securities under the Purchase Agreement and the application
of the proceeds therefrom as described in the Prospectus, will not be, an “investment company,” as that term is defined
in the Investment Company Act of 1940, as amended.


 


11.    Except as described in the Registration Statement and the Prospectus, none of the Material Agreements grants to any person the
right to require the Company to file a registration statement under the Securities Act with respect to any securities of the Company
owned or to be owned by such person or to require the Company to include such securities in the securities registered pursuant
to the Registration Statement or in any securities being registered pursuant to any other registration statement filed by the
Company under the Securities Act.


 


[THE
FOLLOWING MAY BE MADE IN A SEPARATE NEGATIVE ASSURANCES LETTER]


 


As
counsel to the Company, we reviewed the Registration Statement and the Prospectus, and participated in discussions with your representatives
and those of the Company, at which the contents of the Registration Statement and the Prospectus were discussed. Between the date
of the Purchase Agreement and the time of the delivery of this letter, we participated in further discussions with your representatives
and those of the Company, and we reviewed certain certificates of officers of the Company and public officials delivered to you
today.


 


The
purpose of our engagement was not to establish or to confirm factual matters set forth in the Registration Statement and the Prospectus.
Moreover, many of the determinations required to be made in the preparation of the Registration Statement and the Prospectus involve
matters of a non-legal nature.


 






     


     


    

 


The
purpose of our professional engagement was not to establish or confirm factual matters set forth in the Registration Statement
or the Prospectus. Moreover, many of the determinations required to be made in the preparation of the Registration Statement and
the Prospectus involve matters of a non-legal nature.


 


Subject
to the foregoing, we confirm to you, on the basis of the information we gained in the course of performing the services referred
to above, that (a) the Registration Statement, as of its effective date, and the Prospectus, as of its date and as of the date
hereof (except in each case as to the financial statements, schedules and other financial and accounting data, as to which we
make no comment), appeared or appears on its face to be appropriately responsive in all material respects to the applicable requirements
of the Securities Act and Form S-1, [and (b) each of the documents incorporated by reference in the Registration Statement and
the Prospectus (except as to the financial statements, schedules and other financial and accounting data, as to which we make
no comment), at the time such document was filed with the SEC, appeared on its face to be appropriately responsive in all material
respects to the applicable requirements of the Exchange Act]. Furthermore, subject to the foregoing, nothing came to our attention
that caused us to believe that (i) the Registration Statement, as of its effective date, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
or (ii) the Prospectus, as of its date and as of the date hereof, contained or contains any untrue statement of a material fact
or omitted or omits to state any 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 we do not express any belief with respect to the financial
statements, schedules, notes, other financial and accounting information derived therefrom, contained in the Registration Statement
or the Prospectus, as the case may be, at the respective times as of which the advisements set forth in this paragraph are provided.


 


We
inform you that the Registration Statement became effective under the Securities Act on [___________], 2019 and that no stop order
suspending the effectiveness of the Registration Statement has been issued under the Securities Act.


 


We
are not representing the Company in any pending litigation in which it is a named defendant that challenges the validity or enforceability
of, or seeks to enjoin the performance of, the Purchase Agreement, the Registration Rights Agreement or any of the other Transaction
Documents.