Tonix Pharmaceuticals Holding Corp. 8-K


Exhibit 10.01



 


PURCHASE AGREEMENT


 


PURCHASE AGREEMENT (the
“Agreement”), dated as of December 3, 2021, 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 Eighty Million Dollars ($80,000,000) of the Company's common stock, par value $0.001 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 an Accelerated Purchase made pursuant to Section 2(b) hereof, the Business Day
immediately following the applicable Regular 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, with respect to an Accelerated Purchase made pursuant to Section 2(b) hereof, $0.20, 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) $0.20.


 


(c)       “Accelerated
Purchase Minimum Price Threshold” means, with respect to an Accelerated Purchase made pursuant to Section 2(b) hereof,
the minimum per share price threshold set forth by the Company (if any) 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, ninety-seven
percent (97%) of the lower of (i) 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 the Principal Market as the official open (or commencement) of trading on
the Principal Market on such applicable Accelerated Purchase Date, or such later time on the applicable Accelerated Purchase Date as
mutually agreed by the Company and the Investor and set forth in the applicable Accelerated Purchase Notice for such Accelerated
Purchase (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 the 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 the 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 (if any) (such earliest of (i)(A), (i)(B) and (i)(C) above, the “Accelerated
Purchase Ending 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 applicable 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 referred to in clause (i)(A) of the second sentence of Section 2(b)
hereof (such corresponding Regular Purchase being subject to the applicable Regular Purchase Share Limit) 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 Ending Time for such Accelerated Purchase; provided, however,
that that the parties may mutually agree to increase the Accelerated Purchase Share Amount applicable to any 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 applicable 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 Minimum Price Threshold” means, with respect to an Additional Accelerated Purchase made pursuant to Section
2(c) hereof, the minimum per share price threshold (if any) set forth by the Company in the applicable Additional Accelerated Purchase
Notice.


 




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(k)       “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.


 


(l)       “Additional
Accelerated Purchase Price” means, with respect to an Additional Accelerated Purchase made pursuant to Section 2(c)
hereof, ninety-seven percent (97%) of the lower of (i) the VWAP for the period on the applicable Additional Accelerated Purchase Date,
beginning at the time mutually agreed by the Company and the Investor and set forth in the applicable Additional Accelerated Purchase
Notice delivered by the Company to the Investor with respect to such Additional Accelerated Purchase, which shall not be earlier than
the latest of (A) the applicable Accelerated Purchase Ending 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 Ending 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 mutually agreed beginning
time, 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 the 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 (if any) (such earliest of (i)(X), (i)(Y) and (i)(Z) above, the
“Additional Accelerated Purchase Ending 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).


 


(m)       “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 referred to in clause (i)(A) of the second sentence of
Section 2(b) hereof (such corresponding Regular Purchase being subject to the applicable Regular Purchase Share Limit) 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 Ending Time for such Additional Accelerated Purchase; provided, however, that that the parties may mutually agree
to increase the Additional Accelerated Purchase Share Amount applicable to any Additional Accelerated Purchase.


 






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


 


(o)       “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).


 


(p)       “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 Regular Purchase Price therefor calculated
in accordance with this Agreement, would enable the Company to deliver to the Investor, on the applicable Regular Purchase Date for such
Regular Purchase, a Regular Purchase Notice for a Purchase Amount equal to, or as closely approximating without exceeding, Five Hundred
Thousand Dollars ($500,000).


 


(q)        “Available
Amount” means, initially, Eighty Million Dollars ($80,000,000) in the aggregate, which amount shall be reduced by the Purchase
Amount each time the Investor purchases Purchase Shares pursuant to Section 2 hereof.


 


(r)       “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.


 


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


 


(t)       “Base
Price” means a price per Purchase Share equal to the sum of (i) the Signing Market Price and (ii) $0.014 (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).


 


(u)       “Base
Prospectus” shall have the meaning ascribed to such term in the Registration Rights 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.


 



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(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.


 


(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)“Floor Price”
means, with respect to a Regular Purchase made pursuant to Section 2(a) hereof, $0.10, 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 Floor Price shall mean
the lower of (i) the adjusted price and (ii) $0.10.


 


(dd)“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.


 


(ee)“Initial Prospectus
Supplement” shall have the meaning ascribed to such term in the Registration Rights Agreement.


 



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(ff)“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.


 


(gg)“Maturity Date”
means the first day of the month immediately following the thirty-six (36) month anniversary of the Commencement Date.


 


(hh)“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.


 


(ii)       “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 OTCQX or OTCQB operated by the OTC Markets Group, Inc. (or any nationally recognized
successors thereto), 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.


 


(jj)“Prospectus”
shall have the meaning ascribed to such term in the Registration Rights Agreement.


 


(kk)“Prospectus
Supplement” shall have the meaning ascribed to such term in the Registration Rights Agreement.


 


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


 


(mm)“Registration
Statement” shall have the meaning ascribed to such term in the Registration Rights Agreement.


 


(nn)“Regular 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.


 


(oo)       “Regular
Purchase Notice” means, with respect to a Regular Purchase pursuant to Section 2(a) hereof, an irrevocable written notice
from the Company to the Investor directing the Investor to buy a specified number of Purchase Shares (subject to the Purchase Share limitations
contained in Section 2(a) hereof) at the applicable Regular Purchase Price for such Regular Purchase in accordance with this Agreement.


 






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(pp)“Regular Purchase
Price” means, with respect to a Regular Purchase made pursuant to Section 2(a) hereof, the lower of: (i) the lowest
Sale Price on the applicable Regular 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 Regular 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).


 


(qq)“Regular Purchase
Share Limit” means, with respect to a Regular Purchase pursuant to Section 2(a) hereof, One Million (1,000,000) Purchase
Shares, subject to adjustment as set forth below; provided, however, that (i) the Regular Purchase Share Limit shall be
increased to One Million Two Hundred Fifty Thousand (1,250,000) Purchase Shares, if the Closing Sale Price of the Common Stock on the
applicable Regular Purchase Date is not below $1.00, and (ii) the Regular Purchase Share Limit shall be increased to One Million Five
Hundred Thousand (1,500,000) Purchase Shares, if the Closing Sale Price of the Common Stock on the applicable Regular Purchase Date is
not below $1.25 (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, on a Regular Purchase Date for a Regular Purchase hereunder, a Regular Purchase Notice for a Purchase
Amount equal to or greater than Five Hundred Thousand Dollars ($500,000) (which shall be determined by multiplying (X) the Fully Adjusted
Regular Purchase Share Limit then in effect on such Regular Purchase Date, by (Y) the applicable Regular Purchase Price per Purchase
Share for such Regular Purchase calculated in accordance with this Agreement), the Regular Purchase Share Limit shall equal the applicable
Alternate Adjusted Regular Purchase Share Limit); and provided, further, however, that the parties may mutually
agree to increase the Regular Purchase Share Limit applicable to any Regular Purchase; provided that the Investor’s maximum
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 Ten Million (10,000,000) Purchase Shares (to be appropriately proportionately adjusted
for any reorganization, recapitalization, non-cash dividend, stock split or other similar transaction).


 


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


 


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


 


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


 


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


 


(vv) “Signing Market Price” means
$0.44, representing the official closing price of the Common Stock on The Nasdaq Global Market (as reflected on Nasdaq.com) on the
Business Day immediately preceding the date
of this Agreement.


 







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(ww)“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.


 


(xx)       “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.


 


(yy) “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.


 


(zz)“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 or by another reputable source such as Bloomberg,
L.P.


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 in accordance with this Agreement, to purchase up to the Regular Purchase Share Limit at the applicable
Regular Purchase Price on the applicable Regular Purchase Date (each such purchase a “Regular Purchase”). The Company
may deliver a Regular Purchase Notice to the Investor as often as every Business Day, so long as (i) the Closing Sale Price of the Common
Stock on such Business Day is not less than the Floor Price and (ii) all Purchase Shares subject to all prior Regular Purchases have
theretofore been received by the Investor as DWAC Shares in accordance with this Agreement.


 


(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 (i) on a Regular Purchase Date on which (A) the Company also properly submitted a Regular Purchase
Notice for a Regular Purchase of not less than the Regular Purchase Share Limit then in effect and (B) the Closing Sale Price of the
Common Stock is not less than the Accelerated Purchase Floor Price, and (ii) if all Purchase Shares subject to all Regular Purchases,
Accelerated Purchases and Additional Accelerated Purchases prior to the Regular Purchase Date referred to in clause (i) hereof (as applicable)
have theretofore been received by the Investor as DWAC Shares in accordance with this Agreement. 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”).






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(c)       Additional
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) 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 only (i) on a Business Day that is also the Accelerated Purchase Date for an
Accelerated Purchase with respect to which each of the conditions set forth in the second sentence of Section 2(b) have been satisfied,
and (ii) 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, have theretofore been received by the Investor as DWAC Shares
in accordance with this Agreement. 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 in the Accelerated
Purchase Confirmation for the related Accelerated Purchase as provided in the last sentence of Section 2(b).


(d)       Excess
Share Limitations. If the Company delivers any Regular Purchase Notice for a Purchase Amount in excess of the Regular Purchase Share
Limit, 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 Regular
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. If the Company delivers any Accelerated Purchase
Notice or Additional Accelerated Purchase Notice directing the Investor to purchase an amount of Purchase Shares that exceeds the Accelerated
Purchase Share Amount or Additional Accelerated Purchase Amount, as applicable, that the Company is then permitted to include in such
Accelerated Purchase Notice or Additional Accelerated Purchase Notice, respectively, such Accelerated Purchase Notice or Additional Accelerated
Purchase Notice, as applicable, 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 or Additional Accelerated Purchase Notice, as applicable, exceeds the Accelerated Purchase
Share Amount or Additional Accelerated Purchase Amount, respectively, that the Company is then permitted to include in such Accelerated
Purchase Notice or Additional Accelerated Purchase Notice, respectively (which shall be confirmed in an Accelerated Purchase Confirmation),
and the Investor shall have no obligation to purchase such excess Purchase Shares; provided, however, that the Investor
shall remain obligated to purchase the Accelerated Purchase Share Amount or Additional Accelerated Purchase Amount, as applicable, which
the Company is permitted to include in such Accelerated Purchase Notice or Additional Accelerated Purchase Notice, respectively.




    -9- 


     


    

       (e)       
Payment for Purchase Shares. For each Regular Purchase, the Investor shall pay to the Company an amount equal to the Purchase
Amount with respect to such Regular Purchase 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 second (2nd) 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 or an Additional Accelerated Purchase
(as applicable) within two (2) Business Days following the receipt by the Company of the Regular Purchase Price, Accelerated Purchase
Price or Additional Accelerated Purchase Price (as applicable) 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 or Additional Accelerated Purchase, 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 or Additional Accelerated Purchase (as applicable). The Company shall not issue any
fraction of a share of Common Stock upon any Regular Purchase, Accelerated Purchase or Additional Accelerated 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 exceed 94,220,451 (representing 19.99% of the shares of Common Stock issued and outstanding immediately prior to the execution
of this Agreement), which number of shares shall be (i) 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 Stock Market and (ii) appropriately adjusted for any reorganization, recapitalization,
non-cash dividend, stock split or other similar transaction that occurs after the date of this Agreement (such maximum number of shares,
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 the issuance of Common Stock as contemplated
by this Agreement in accordance with the applicable rules of The Nasdaq Stock Market. 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, 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 (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). The parties acknowledge and agree that the Signing Market Price used to determine the Base
Price hereunder represents the lower of (i) the Nasdaq official closing price of the Common Stock on The Nasdaq Global Market (as reflected
on Nasdaq.com) on the Business Day immediately preceding
the date of this Agreement and (ii) the average Nasdaq official closing price of the Common Stock on The Nasdaq Global Market (as reflected
on Nasdaq.com) for the five (5) consecutive trading days ending on the Business Day immediately preceding
the date of this Agreement.


(iii)       General.
The Company shall not issue any shares of Common Stock 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 Nasdaq Stock Market. 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 Nasdaq Stock 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, upon written notice to the Company, may increase or decrease
the Beneficial Ownership Limitation provisions of this Section 2(g), provided that the Beneficial Ownership Limitation in no event
exceeds 9.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common
Stock pursuant to this Agreement and the provisions of this Section 2(g) shall continue to apply. Any increase in the Beneficial
Ownership Limitation will not be effective until the 61st day after such written notice is delivered to the Company. The provisions
of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section
2(g) to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership
Limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. 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)        Organization,
Authority. Investor is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its
organization, with the requisite power and authority to enter into and to consummate the transactions contemplated by this Agreement
and otherwise to carry out its obligations hereunder and thereunder


(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)       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)       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.


 


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


 


(h)       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.


 


 




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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 on Exhibit 21.01 to the Company’s Annual Report on Form 10-K for the fiscal
year ended December 31, 2020.


 


(b)       Authorization;
Enforcement; Validity. (i) The Company has the requisite corporate power and authority to enter into and perform its obligations
under this Agreement, the Registration Rights 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 (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) each of this Agreement and the Registration Rights 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 copy of the minutes
of a meeting of the Company’s Board of Directors at which the Signing Resolutions were unanimously adopted by the Board of Directors.
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.


 



    -13- 


     


    




(c)       Capitalization.
As of the date hereof, the authorized capital stock of the Company is set forth in the Registration Statement. 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 this Agreement and 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. 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. 15,000,000 shares of Common
Stock have been duly authorized and reserved for issuance upon purchase under this Agreement as Purchase Shares.


 


(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 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


 




    -14- 


     


    

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 with the SEC under the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, and under the Securities
Act, in each case during the 12-month period immediately preceding the date of this Agreement (the foregoing materials, including the
exhibits thereto and documents incorporated by reference therein, being collectively referred to herein as the “SEC Documents”),
on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Documents prior to the expiration
of any such extension.  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. Except as set forth in the SEC Documents, the Company
has received no notices or correspondence from the SEC for the one year preceding the date hereof. The SEC has not commenced any enforcement
proceedings against the Company or any of its Subsidiaries.


 


(g)       Absence
of Certain Changes. Except as disclosed in the SEC Documents, since December 31, 2020, (i) there has been no material adverse change
in the business, properties, operations, financial condition or results of operations of the Company or its Subsidiaries,(ii) the
Company and its Subsidiaries, considered as one entity, have not incurred any material liability or obligation, indirect, direct or contingent,
including without limitation any losses or interference with its business from fire, explosion, flood, earthquakes, accident or other
calamity, whether or not covered by insurance, or from any strike, labor dispute or court or governmental action, order or decree, that
are material, individually or in the aggregate, to the Company and its Subsidiaries, considered as one entity, or has entered into any
transactions not in the ordinary course of business; (iii) there has not been any material disruption, material delay or other material
adverse change in (A) the development of any of the Company’s product candidates, (B) the anticipated timeline of pre-clinical
or clinical trials to support the development of any of the Company’s product candidates, or (C) the recruitment of candidates
for clinical trials to support the


 




    -15- 


     


    

development of any of the Company’s product
candidates, in each case as a result of the recent outbreak of COVID-19, or as a result of any measures intended to contain the outbreak
of COVID-19 imposed by any federal, state, local or foreign government or government agency in any country or region in which the Company,
or any of its agents, consultants, advisors or vendors, has assets or properties or conducts business, including, without limitation,
any limitations, curtailments, suspensions or closures of businesses, business offices or establishments, schools, properties and other
public areas due to quarantines, curfews, travel restrictions, workplace controls, “stay at home” orders, social distancing
requirements or guidelines or other public gathering restrictions or limitations; and (iv) there has not been any material decrease
in the capital stock or any material increase in any short-term or long-term indebtedness of the Company or its Subsidiaries and there
has been no dividend or distribution of any kind declared, paid or made by the Company or, except for dividends paid to the Company or
other Subsidiaries, by any of the Company’s Subsidiaries on any class of capital stock, or any repurchase or redemption by the
Company or any of its Subsidiaries of any class of capital stock.. 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
Integrated Offering. Neither the Company, nor any of its affiliates, nor any Person acting on its or their behalf has, directly or
indirectly, made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would cause
this offering of the Securities to be integrated 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.


 




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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.


 


(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 possesses all licenses, certificates, registrations, authorizations and permits required by the U.S. Food and
Drug Administration (“FDA”) and other governmental or regulatory authorities performing functions similar to those
performed by the FDA and have made all declarations and filings with, the appropriate local, state, federal or foreign governmental or
regulatory agencies or bodies (including, without limitation, those administered by the FDA or by any foreign, federal, state or local
governmental or regulatory authority performing functions similar to those performed by the FDA) that are necessary for the ownership
or lease of their respective properties or the conduct of their respective businesses as described in the Registration Statement and
the Prospectus (collectively, the “Material Permits”) except where any failures to possess or make the same would
not, singularly or in the aggregate, have a Material Adverse Effect. The Company is in compliance with all


 




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such Material Permits, including with all conditions
and limitations on the commercial rights granted by such Material Permits; all such Material Permits are valid and in full force and
effect, except where the validity or failure to be in full force and effect would not, singularly or in the aggregate, have a Material
Adverse Effect. The Company has not received notification of any revocation, modification, suspension, termination or invalidation (or
proceedings related thereto) of any such Material Permit and the Company has no reason to believe that any such Material Permit will
not be renewed.


 


(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.


 


(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)       Registration
Statement. The Company has prepared and filed the Registration Statement with the SEC in accordance with the Securities Act. The
Registration Statement was declared effective by order of the SEC on May 5, 2021. The Registration Statement is effective pursuant to
the Securities Act and available for the issuance of the Securities thereunder, and the Company has not received any written notice that
the SEC has issued or intends to issue a stop order or other similar order with respect to the Registration Statement or the Prospectus
or that the SEC otherwise has (i) suspended or withdrawn the effectiveness of the Registration Statement or (ii) issued any
order preventing or suspending the use of the Prospectus or any Prospectus Supplement, in either case, either temporarily or permanently
or intends or has threatened in writing to do so. The “Plan of Distribution” section of the Prospectus permits the issuance
of the Securities under the terms of this Agreement. At the time the Registration Statement and any amendments thereto became effective,
at the date of this Agreement and at each deemed effective date thereof pursuant to Rule 430B(f)(2) of the Securities Act, the Registration
Statement and any amendments thereto complied and will comply in all material respects with the requirements of the Securities Act and
did not and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading; and the Base Prospectus and any Prospectus Supplement thereto, at the time
such Base Prospectus or such Prospectus Supplement thereto was issued and on the Commencement Date, complied and will comply in all material
respects with the requirements of the Securities Act and did not and will not contain an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made,
not misleading; provided that this representation and warranty does not apply to statements in or omissions from any Prospectus Supplement
made in reliance upon and in conformity with information relating to the Investor furnished to the Company in writing by or on behalf
of the Investor expressly for use therein. The Company meets all of the requirements for the use of a registration statement on Form S-3
pursuant to the Securities Act for the offering and sale of the Securities contemplated by this Agreement in reliance on General Instruction
I.B.1. of Form S-3, and the SEC has not notified the Company of any objection to the use of the form of the Registration Statement pursuant
to Rule 401(g)(1) of the Securities Act. The Company hereby confirms that the issuance of the Securities to the Investor pursuant
to this Agreement would not result in non-compliance with the Securities Act or any of the General Instructions to Form S-3. The Registration
Statement, as of its effective date, meets the requirements set forth in Rule 415(a)(1)(x) pursuant to the Securities Act. At the earliest
time after the filing of the Registration Statement that the Company or another offering participant made a bona fide offer (within the
meaning of Rule 164(h)(2) of the Securities Act) relating to any of the Securities, the Company was not, and as of the date of this Agreement
the Company is not, an Ineligible Issuer (as defined in Rule 405 of the Securities Act). The Company has not distributed any offering
material in connection with the offering and sale of any of the Securities, and, until the Investor does not hold any of the Securities,
shall not distribute any offering material in connection with the offering and sale of any of the Securities, to or by the Investor,
in each case, other than the Registration Statement or any amendment thereto, the Prospectus or any Prospectus Supplement required pursuant
to applicable law or the Transaction Documents. The Company has not made and shall not make an offer relating to the Securities that
would constitute a “free writing prospectus” as defined in Rule 405 under the Securities Act.


 






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(v)       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.


 


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


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


(y)       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.


(z)       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.


(aa)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.


(bb)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.


(cc)Bank Holding Company Act. Neither
the Company nor any of its Subsidiaries or affiliates is subject to the Bank Holding Company Act of 1956, as amended (the “BHCA”)
and to regulation by the Board of Governors of the Federal Reserve System (the “Federal Reserve”). Neither the Company
nor any of its Subsidiaries or affiliates owns or controls, directly or indirectly, five percent (5%) or more of the outstanding shares
of any class of voting securities or twenty-five percent or more of the total equity of a bank or any entity that is subject to the BHCA
and to regulation by the Federal Reserve. Neither the Company nor any of its Subsidiaries or affiliates exercises a controlling influence
over the management or policies of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve.




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(dd)Money Laundering.
The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance with applicable financial record-keeping
and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, applicable money laundering statutes
and applicable rules and regulations thereunder (collectively, the “Money Laundering Laws”), and no action, suit or
proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any Subsidiary
with respect to the Money Laundering Laws is pending or, to the knowledge of the Company or any Subsidiary, threatened.


(ee)Information
Technology. The Company’s and the Subsidiaries’ information technology assets and equipment, computers, systems, networks,
hardware, software, websites, applications, and databases (collectively, “IT Systems”) operate and perform in all
material respects as required in connection with the operation of the business of the Company and the Subsidiaries as currently conducted.
The Company, and the Subsidiaries maintain commercially reasonable controls, policies, procedures, and safeguards to maintain and protect
their material confidential information and the integrity, continuous operation, redundancy and security of all IT Systems and all personal,
personally identifiable, sensitive, confidential or regulated data (“Personal Data”) processed and stored thereon,
and to the knowledge of the Company, there have been no breaches, incidents, violations, outages, compromises or unauthorized uses of
or accesses to same, except for those that have been remedied without material cost or liability or the duty to notify any other person,
nor any incidents under internal review or investigations relating to the same. The Company and the Subsidiaries are presently in compliance
in all material respects with all applicable laws or statutes and all applicable judgments, orders, rules and regulations of any court
or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy and security
of IT Systems and Personal Data and to the protection of such IT Systems and Personal Data from unauthorized use, access, misappropriation
or modification, except for any such noncompliance that would not have a Material Adverse Effect.


(ff)Regulatory.
Except as described in the Registration Statement and the Prospectus, as applicable, the Company and its Subsidiaries (i) are and at
all times have been in material compliance with all statutes, rules and regulations applicable to the ownership, testing, development,
manufacture, packaging, processing, use, distribution, marketing, advertising, labeling, promotion, sale, offer for sale, storage, import,
export or disposal of any product manufactured or distributed by the Company including, without limitation the Federal Food, Drug and
Cosmetic Act (21 U.S.C. §301 et seq.), the federal Anti-Kickback Statute (42 U.S.C. §1320a-7b(b)), the Health Insurance Portability
and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act of 2009, and the
Patient Protection and Affordable Care Act of 2010, as amended by the Health Care and Education Affordability Reconciliation Act of 2010,
the regulations promulgated pursuant to such laws, and any successor government programs and comparable state laws, regulations relating
to Good Clinical Practices and Good Laboratory Practices and all other local, state, federal, national, supranational and foreign laws,
manual provisions, policies and administrative guidance relating to the regulation of the Company (collectively, the “Applicable
Laws”); (ii) have not received any notice from any court or arbitrator or governmental or regulatory authority or third
party alleging or asserting noncompliance with any Applicable Laws or any licenses, exemptions, certificates, approvals, clearances,
authorizations, permits, registrations and supplements or amendments thereto required by any such Applicable Laws (“Authorizations”);
(iii) possess all material Authorizations and such Authorizations are valid and in full force and effect and are not in violation of
any term of any such Authorizations; (iv) have not received




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written notice of any claim, action, suit,
proceeding, hearing, enforcement, investigation arbitration or other action from any court or arbitrator or governmental or regulatory
authority or third party alleging that any product operation or activity is in violation of any Applicable Laws or Authorizations nor
is any such claim, action, suit, proceeding, hearing, enforcement, investigation, arbitration or other action threatened; (v) have not
received any written notice that any court or arbitrator or governmental or regulatory authority has taken, is taking or intends to take,
action to limit, suspend, materially modify or revoke any Authorizations nor is any such limitation, suspension, modification or revocation
threatened; (vi) have filed, obtained, maintained or submitted all material reports, documents, forms, notices, applications, records,
claims, submissions and supplements or amendments as required by any Applicable Laws or Authorizations and that all such reports, documents,
forms, notices, applications, records, claims, submissions and supplements or amendments were complete and accurate on the date filed
(or were corrected or supplemented by a subsequent submission); and (vii) are not a party to any corporate integrity agreements, monitoring
agreements, consent decrees, settlement orders, or similar agreements with or imposed by any governmental or regulatory authority.


(gg)Benefit Plans;
Labor Matters. Each benefit and compensation plan, agreement, policy and arrangement that is maintained, administered or contributed
to by the Company for current or former employees or directors of, or independent contractors with respect to, the Company has been maintained
in material compliance with its terms and the requirements of any applicable statutes, orders, rules and regulations, and the Company
has complied in all material respects with all applicable statutes, orders, rules and regulations in regard to such plans, agreements,
policies and arrangements. Each stock option granted under any equity incentive plan of the Company (each, a “Stock Plan”)
was granted with a per share exercise price no less than the market price per common share on the grant date of such option in accordance
with the rules of the Principal Market, and no such grant involved any “back-dating,” “forward-dating” or similar
practice with respect to the effective date of such grant; each such option (i) was granted in compliance in all material respects
with Applicable Laws and with the applicable Stock Plan(s), (ii) was duly approved by the Board of Directors, and (iii) has been
properly accounted for in the Company’s financial statements and disclosed, to the extent required, in the Company’s filings
or submissions with the SEC, and the Principal Market. No labor problem or dispute with the employees of the Company exists or has been
threatened in writing, and the Company is not aware of any existing or threatened labor disturbance by the employees of any of its principal
suppliers or contractors, that would reasonably be expected to have a Material Adverse Effect.


(hh)Material Agreements.
The agreements and documents described in the Registration Statement or Prospectus conform in all material respects to the descriptions
thereof contained or incorporated by reference therein conformed in all material respects
to the requirements of the Securities Act or the Exchange Act, as applicable at the time filed, and were filed on a timely basis with
the Commission and none of such documents contained an untrue statement of a material fact or omitted to state a material fact necessary
to make the statements therein, in the light of the circumstances under which they were made, not misleading; any further documents so
filed and there are no agreements or other documents required by the Securities Act and the rules and regulations thereunder
to be described in the Prospectus or to be filed with the Commission as exhibits to the Registration Statement or to be incorporated
by reference in the Registration Statement or Prospectus, that have not been so described or filed or incorporated by reference.


(ii)       Compliance
with Healthcare Laws. The tests, studies, and trials conducted by or on behalf of or sponsored by the Company or any of its subsidiaries
were and, if still pending, are being conducted in all material respects in accordance with all applicable Health Care Laws (as defined
below) and standard medical and scientific research protocols, procedures, and controls; none of the Company or any of its subsidiaries
has received any written notice, correspondence, or other written communication from any regulatory agency or any institutional review
board or comparable body requiring or threatening




    -22- 


     


    

the termination, suspension, or material modification
of any tests, studies, or trials, or commercial distribution, and to the knowledge of the Company and its subsidiaries, there are no
reasonable grounds for the same. Each of the Company and its Subsidiaries has obtained (or caused to be obtained) the informed consent
of each human subject who participated in a test, study, or trial. None of the tests, studies, or trials involved any investigator who
has been disqualified as a clinical investigator. The Company and its directors, officers, employees, and agents are, and at all times
prior hereto have been, in material compliance with, all health care laws and regulations applicable to the Company or any of its product
candidates or activities, including development and testing of pharmaceutical products, kickbacks, recordkeeping, documentation requirements,
the hiring of employees (to the extent governed by Health Care Laws), quality, safety, privacy, security, licensure, accreditation or
any other aspect of developing and testing health care or pharmaceutical products (collectively, “Health Care Laws”).
The Company has not received any notification, correspondence or any other written or oral communication, including notification of any
pending or threatened claim, suit, proceeding, hearing, enforcement, investigation, arbitration or other action from any governmental
authority, including, without limitation, the United States Food and Drug Administration, the Drug Enforcement Agency, the Centers for
Medicare & Medicaid Services, and the U.S. Department of Health and Human Services Office of Inspector General, of potential or actual
non-compliance by, or liability of, the Company under any Health Care Laws. To the Company’s knowledge, there are no facts or circumstances
that would reasonably be expected to give risk to liability of the Company under any Health Care Laws, except that would not individually
or in the aggregate have a Material Adverse Effect.


(jj)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.


5.       COVENANTS.


 


(a)       Filing
of Current Report and Initial Prospectus Supplement. The Company agrees that it shall, on the date hereof, file with the SEC a current
report on Form 8-K relating to the transactions contemplated by, and describing the material terms and conditions of, the Transaction
Documents in the form agreed upon by the Investor prior to the date hereof (the “Current Report”). The Company further
agrees that it shall, on the date hereof, file with the SEC the Initial Prospectus Supplement pursuant to Rule 424(b) under the Securities
Act, in the form agreed upon by the Investor prior to such filing, specifically relating to the transactions contemplated by, and describing
the material terms and conditions of, the Transaction Documents, containing information previously omitted at the time of effectiveness
of the Registration Statement in reliance on Rule 430B under the Securities Act, and disclosing all information relating to the transactions
contemplated hereby required to be disclosed in the Registration Statement and the Prospectus as of the date of the Initial Prospectus
Supplement, including, without limitation, information required to be disclosed in the section captioned “Plan of Distribution”
in the Prospectus, pursuant to and in accordance with the terms of the Registration Rights Agreement.


 


(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.


 




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(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.


 


(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. In consideration for the Investor’s execution and delivery of this Agreement, the Company shall cause
to be issued to the Investor a total of 2,909,091 shares of Common Stock (the “Commitment Shares”) on the Business
Day immediately following the date of this Agreement and shall deliver to the Transfer Agent immediately following the execution of this
Agreement the Irrevocable Transfer Agent Instructions with respect to the issuance of such Commitment Shares pursuant hereto. For the
avoidance of doubt, all of the Commitment Shares 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 the Company, 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


 




    -24- 


     


    

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.


(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 Accelerated 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 Prospectus.


(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)       No
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 commercially reasonable 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 reasonably be expected to 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 stockholder approval is obtained before the closing of such subsequent transaction in accordance with the rules of
such Principal Market.



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(l)       Limitation
on Variable Rate Transactions. From and after the date of this Agreement until the later of (i) the 36-month anniversary of the
date of this Agreement or (ii) the 36-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) Common Stock issued pursuant to an “at-the-market
offering” by the Company exclusively through one or more registered broker-dealers acting primarily as agent(s) of the Company
pursuant to a written equity distribution or sales agreement between the Company and such registered broker-dealer(s).



    -26- 


     


    

6.       TRANSFER
AGENT INSTRUCTIONS.


 


On the date of this Agreement,
the Company shall issue to the Transfer Agent (and any subsequent transfer agent) irrevocable instructions, in the form substantially
similar to those used by the Investor in substantially similar transactions, to issue the Purchase Shares and the Commitment Shares in
accordance with the terms of this Agreement (the “Irrevocable Transfer Agent Instructions”). All Securities to be
issued to or for the benefit of the Investor pursuant to this Agreement shall be issued as DWAC Shares. The Company represents and warrants
to the Investor that no instruction other than the Irrevocable Transfer Agent Instructions referred to in this Section 6 will
be given by the Company to the Transfer Agent with respect to the Securities, and the Securities shall otherwise be freely transferable
on the books and records of the Company. If the Investor effects a sale, assignment or transfer of the Purchase Shares, the Company shall
permit the transfer and shall promptly instruct the Transfer Agent (and any subsequent transfer agent) to issue DWAC Shares in such name
and in such denominations as specified by the Investor to effect such sale, transfer or assignment. The Company shall take all actions
to carry out the intent and accomplish the purposes of this Section 6, including, without limitation, delivering or causing to
be delivered 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 this Section 6, and all fees and costs associated therewith shall be borne by the Company.


 


		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 or, where legally permissible, the waiver
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)       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 or, where legally permissible, the waiver 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 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;


 






    -27- 


     


    

 


(c)       The
Investor shall have received the opinions and negative assurances of the Company's legal counsel dated as of the Commencement Date substantially
in the form heretofore agreed by the parties hereto;


 


(d)       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;


 


(e)       The
Board of Directors of the Company shall have adopted resolutions substantially in 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;


 


(f)       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, 15,000,000 shares of Common Stock;


 


(g)       The
Irrevocable Transfer Agent Instructions shall have been delivered to and acknowledged in writing by the Company and the Company's Transfer
Agent, and the Commitment Shares required to have been issued on the Commencement Date in accordance with Section 5(e) hereof
shall have been issued directly to the Investor electronically as DWAC Shares;


 


(h)       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;


 


(i)       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;


 


(j)       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;


 


(k)       The
Registration Statement shall continue to be effective and no stop order with respect to the Registration Statement shall be pending or
threatened by the SEC. The Company shall have a maximum dollar amount certain of Common Stock registered under the Registration Statement
which is sufficient to issue to the Investor not less than (i) the full Available Amount worth of Purchase Shares plus (ii) all of the
Commitment Shares. The Current Report and the Initial Prospectus Supplement each shall have been filed with the SEC, as required pursuant
to Section 5(a) and in compliance with Registration Rights Agreement, and copies of the Prospectus shall have been delivered to
the Investor in


 




    -28- 


     


    

accordance with Registration Rights Agreement.
The Prospectus shall be current and available for issuances and sales of all of the Securities by the Company to the Investor, and for
the resale of all of the Securities by the Investor. Any other Prospectus Supplements required to have been filed by the Company with
the SEC under the Securities Act at or prior to the Commencement Date shall have been filed with the SEC within the applicable time periods
prescribed for such filings under the Securities Act. All reports, schedules, registrations, forms, statements, information and other
documents required to have been filed by the Company with the SEC at or prior to 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;


 


(l)       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;


 


(m)       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;


 


(n)       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


 


(o)       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, members, officers, directors, 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


 




    -29- 


     


    

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 Indemnitee makes written
request for it. A certificate containing reasonable detail as to the amount of such indemnification submitted to the Company by Investor
shall be conclusive evidence, absent manifest error, of the amount due from the Company to 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.


 


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 the Registration Statement registering the Securities lapses for any reason (including, without limitation, the issuance
of a stop order or similar order), the Registration Statement or the Prospectus is unavailable for the sale by the Company to the Investor
(or the resale by the Investor) of any or all of the Securities to be issued to the Investor under the Transaction Documents (including,
without limitation, as a result of any failure of the Company to satisfy all of the requirements for the use of a registration statement
on Form S-3 pursuant to the Securities Act for the offering and sale of the Securities contemplated by this Agreement), and any 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;


 


(b)       the
suspension of the Common Stock from trading or the failure of the Common Stock to be listed 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 (or any nationally recognized successor thereto), provided, however,
that the Common Stock is not immediately thereafter trading on The Nasdaq Capital Market, The Nasdaq Global Select Market, the New
York Stock Exchange, the NYSE American, the NYSE Arca, or the OTCQX or OTCQB operated by the OTC Markets Group, Inc. (or any
nationally recognized successors thereto);


 






    -30- 


     


    

 


(d)       the
failure for any reason by the Transfer Agent to issue Purchase Shares to the Investor within two (2) Business Days after the Regular
Purchase Date, Accelerated Purchase Date or Additional Accelerated 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;


 


(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), and the stockholder approval referred to in Section 2(f)(i) has not been obtained in accordance with the applicable
rules of The Nasdaq Stock Market.


 


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 or Additional Accelerated 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 which is not discharged within 90 days, 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.


 






    -31- 


     


    

 


(b)       In
the event that the Commencement shall not have occurred on or before December 22, 2021, due to the failure to satisfy the conditions
set forth in Sections 7 and 8 above with respect to the Commencement, either the Company or the Investor shall have the
option to terminate this Agreement at the close of business on such date or thereafter without liability of any party to any 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(d), 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.


 


(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 of the Company
and the Investor contained in Sections 3 and 4 hereof, the indemnification provisions set forth in Section 9 hereof
and the agreements and covenants set forth in Sections 5, 6, 10, 11 and 12 shall survive the Commencement
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 pending Regular Purchases, Accelerated Purchases and Additional Accelerated
Purchases and the Company and the Investor shall complete their respective obligations with respect to any pending Regular Purchases,
Accelerated Purchases and Additional Accelerated Purchases under this Agreement and (B) the Registration Rights Agreement, which shall
survive any such termination in accordance with its terms, 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


 




    -32- 


     


    

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.


 


(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, including any electronic signature complying with the U.S.
federal ESIGN Act of 2000, e.g., www.docusign.com, www.echosign.adobe.com,
etc., 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:


 




    -33- 


     


    

 


If to the Company:





	 	Tonix Pharmaceuticals Holding Corp.	 
	 	26 Main Street, Suite 101	 
	 	Chatham, NJ 07928	 
	 	Telephone:	(862) 904-8182	 
	 	E-mail:	seth.lederman@tonixpharma.com	 
	 	Attention: 	Seth Lederman, MD	 
	 	 	President and Chief Executive Officer	 



 





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.	 


 





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):




	 	Dorsey & Whitney
LLP	 
	 	51 West 52nd
Street	 
	 	New York, NY 10019	 
	 	Telephone:	(212) 415-9214	 
	 	Facsimile:	(212)
953-7201	 
	 	E-mail:	marsico.anthony@dorsey.com	 
	 	Attention: 	Anthony
J. Marsico, 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.


 






    -34- 


     


    

 


(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, shall consult with the Investor
and its counsel on the form and substance of, and shall give due 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.


 


(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.


 



    -35- 


     


    




(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.


 


(o)       Amendment;
Waiver; Failure or Indulgence Not Waiver. No provision of this Agreement may be amended other than by a written instrument signed
by both parties hereto. 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.


 







 




    -36- 


     


    

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, MD


Title: President and 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


 


 


 




    -37- 


     


    

EXHIBITS


 


Exhibit A         Form
of Officer’s Certificate


Exhibit B          Form
of Resolutions of Board of Directors of the Company


Exhibit C          Form
of Secretary’s Certificate


 


 




     


     


    

EXHIBIT A


 


FORM OF OFFICER’S CERTIFICATE


 


This Officer’s Certificate
(“Certificate”) is being delivered pursuant to Section 8(d) of that certain Purchase Agreement dated as of
December 3, 2021 (“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


 


RESOLVED, that the terms
and conditions of, and the transactions contemplated by, the form of 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 Eighty Million Dollars ($80,000,000) of the Corporation’s common stock, par value $0.001 par value (the “Common Stock”)
are hereby authorized and approved in all respects, and that each of the Chairman, Chief Executive Officer, President, Chief Financial
Officer, any Senior Vice President or Executive Vice President or Secretary of the Corporation (collectively, the “Authorized Officers”)
is hereby 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 Corporation’s Common Stock issuable in respect of the Purchase Agreement on behalf of the Corporation, with
such amendments, changes, additions and deletions as any of the Authorized Officers determines to be appropriate, such determination
to be conclusively evidenced by the signature of any Authorized Officer thereon; and be it further


RESOLVED, that the terms
and provisions of, and the transactions contemplated by, the Registration Rights Agreement by and among the Corporation and Lincoln Park
are hereby authorized and approved in all respects, and that each of the Authorized Officers is hereby 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 any of the Authorized Officer determines to be appropriate, such determination to be conclusively evidenced by the signature of any
Authorized Officer thereon; and be it further


RESOLVED, that the terms
and provisions of, and the transactions described in, the forms of Irrevocable Transfer Agent Instructions and Notice of Effectiveness
of Registration Statement (collectively, the “Instructions”, and together with the Purchase Agreement, the Registration Rights
Agreement and any other agreements, instruments or other documents contemplated by any of the foregoing, the “Transaction Documents”)
are hereby authorized and approved in all respects and each of the Authorized Officers is hereby authorized to execute and deliver the
Instructions on behalf of the Corporation in accordance with the Purchase Agreement, with such amendments, changes, additions and deletions
as any of the Authorized Officers determines to be appropriate, such determination to be conclusively evidenced by the signature of an
Authorized Officer thereon; and be it further


RESOLVED, that each of
the Transaction Documents, the execution and delivery thereof by any of the Authorized Officers for and on behalf of the Corporation,
the performance by the Corporation of its obligations thereunder and the consummation of the transactions contemplated thereby are hereby
authorized and approved in all respects (including for all purposes of NRS 78.411 through 78.444, inclusive); and be it further


RESOLVED, that the Corporation
is hereby authorized to issue to Lincoln Park Capital Fund, LLC, 2,909,091 shares of Common Stock (the “Commitment Shares”),
as set forth in the Purchase Agreement, 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;



     


     


    




RESOLVED, that the Corporation is hereby
authorized to issue shares of Common Stock upon the purchase of shares of Common Stock by Lincoln Park under the Purchase Agreement
(the “Purchase Shares”) up to the Available Amount (as defined in the Purchase Agreement) 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;


RESOLVED, that the Corporation
shall initially reserve 15,000,000 shares of Common Stock for issuance as Purchase Shares under the Purchase Agreement;


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;


RESOLVED, that the Authorized
Officers be, and each of them with full authority to act without the others hereby is, authorized and directed for and on behalf of the
Corporation to take or cause to be taken any and all actions, to execute and deliver any and all agreements, certificates, instructions,
requests or other instruments (including any amendments or supplements to any of the documents contemplated by these resolutions), and
to do any and all things which, in any such officer’s judgment, may be necessary or desirable to effect each of the foregoing resolutions
and to carry out the purposes thereof, the taking of any such actions, the execution and delivery of any such certificates, instructions,
requests, or instruments, or the doing of any such things to be conclusive evidence of their necessity or desirability;


RESOLVED, that the Authorized
Officers be, and each of them hereby is, authorized and directed to work with counsel to prepare and file with the Commission one or
more prospectus supplements (in preliminary and/or final form, as required by applicable securities laws) in connection with the issuance
of the Purchase Shares and Commitment Shares (together, the “Securities”) (each, a “Prospectus Supplement”) to
the shelf registration statement (File No. 333-254975), filed on April 1, 2021, as amended by Amendment No. 1 thereto, filed on April
23, 2021, and as declared effective by the Commission on May 5, 2021 (together with any Prospectus Supplement(s) in connection with the
issuance of Securities, as defined below, the “2021 Registration Statement”); and be it further


RESOLVED, that the issuance
by the Company of the Securities as contemplated by the Prospectus Supplement is hereby authorized and approved in all respects and if
and when any such Securities consisting of the Company’s common stock are so issued, such Securities will be validly issued, fully
paid and nonassessable; and be it further


RESOLVED, that the Authorized
Officers be, and each of them hereby is, authorized, in the name and on behalf of the Corporation, to retain any legal counsel, accounting
firm, investment banking firm, financing advisors or other such consultants, advisors and agents as such officers shall deem necessary,
desirable or advisable to perform such services and render such opinions as may be necessary, desirable or advisable in connection with
the transactions contemplated by the Purchas Agreement, and to enter into such contracts providing for the retention, compensation, reimbursement
of expenses and indemnification of such legal counsel, accounting firm, investment banking firm or other such consultants that the Authorized
Officers, individually and with full authority to act without the others, may deem necessary, advisable or proper.




 




     


     


    

EXHIBIT C


 


FORM OF SECRETARY’S CERTIFICATE


 


This Secretary’s Certificate
(“Certificate”) is being delivered pursuant to Section 8(j) of that certain Purchase Agreement dated as of December
3, 2021 (“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 Eighty Million Dollars ($80,000,000) of the Company's Common Stock, par value $0.001 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 TONIX PHARMACEUTICALS HOLDING CORP., and that the signature appearing above is his genuine signature.


 


___________________________________


[TITLE]