TONIX PHARMACEUTICALS HOLDING CORP. 8-K
Exhibit
10.01
Execution Version
SECURITIES
PURCHASE AGREEMENT
This
Securities Purchase Agreement (this “Agreement”) is dated as of December 20, 2023, between Tonix Pharmaceuticals
Holding Corp., a Nevada corporation (the “Company”), and each purchaser identified on the signature pages hereto
(each, including its successors and assigns, a “Purchaser” and collectively the “Purchasers”).
WHEREAS,
subject to the terms and conditions set forth in this Agreement and pursuant to an effective registration statement under the
Securities Act (as defined below), the Company desires to issue and sell to each Purchaser, and each Purchaser, severally and
not jointly, desires to purchase from the Company, securities of the Company as more fully described in this Agreement.
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement, and for other good and valuable consideration
the receipt and adequacy of which are hereby acknowledged, the Company and each Purchaser agree as follows:
ARTICLE
I.
DEFINITIONS
1.1
Definitions. In addition to the terms defined elsewhere in this Agreement, for all purposes of this Agreement, the following
terms have the meanings set forth in this Section 1.1:
“Acquiring
Person” shall have the meaning ascribed to such term in Section 4.5.
“Action”
shall have the meaning ascribed to such term in Section 3.1(j).
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common
control with a Person as such terms are used in and construed under Rule 405 under the Securities Act.
“Approval Date”
means the earlier of the date that all components of the Stockholder Approval is obtained and/or the date that the consent of the Board
of Directors in lieu thereof with respect to the same components is obtained.
“Board
of Directors” means the board of directors of the Company.
“Business
Day” means any day other than Saturday, Sunday, or other day on which banking institutions in the State of New York
are authorized or required by law to remain closed.
“Closing”
means the closing of the purchase and sale of the Securities pursuant to Section 2.1.
“Closing Date” means the Trading Day on which all of
the Transaction Documents have been executed and delivered by the applicable parties thereto, and all conditions precedent to (i) the
Purchasers’ obligations to pay the Subscription Amount at the Closing and (ii) the Company’s obligations to deliver the Securities,
in each case, at the Closing have been satisfied or waived, but in no event later than the second (2nd) Trading Day following the date
hereof.
“Commission”
means the United States Securities and Exchange Commission.
“Common
Stock” means common stock of the Company, par value $0.001 per share.
“Common Warrants”
means, collectively, the Series C Warrants and the Series D Warrants to be delivered to the Purchasers at the Closing in accordance with
Section 2.2(a) hereof.
“Company
Counsel” means Lowenstein Sandler LLP, with offices located at One Lowenstein Drive, Roseland, NJ 07068.
“Disclosure
Schedules” means the Disclosure Schedules of the Company delivered concurrently herewith.
“Disclosure
Time” means, (i) if this Agreement is signed on a day that is not a Trading Day or after 9:00 a.m. (New York City time)
and before midnight (New York City time) on any Trading Day, 9:01 a.m. (New York City time) on the Trading Day immediately following
the date hereof, unless otherwise instructed as to an earlier time by the Placement Agent, and (ii) if this Agreement is signed
between midnight (New York City time) and 9:00 a.m. (New York City time) on any Trading Day, no later than 9:01 a.m. (New York
City time) on the date hereof, unless otherwise instructed as to an earlier time by the Placement Agent.
“DVP”
shall have the meaning ascribed to such term in Section 2.1(v).
“Evaluation
Date” shall have the meaning ascribed to such term in Section 3.1(r).
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exempt Issuance”
means the issuance of (a) shares of Common Stock, restricted stock units or options to employees, consultants, officers, or directors
of the Company pursuant to any share or option plan in existence as of the date hereof or subsequently approved by a vote of the shareholders
of the Company, provided that such issuances to consultants are issued as “restricted securities” (as defined in Rule 144)
and carry no registration rights, (b) shares of Common Stock upon the exercise or exchange of or conversion of securities exercisable
or exchangeable for or convertible into shares of Common Stock issued and outstanding on the date of this Agreement, provided that such
securities 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 or to extend the term (but not, for purposes of clarity, the exercise period
of stock options) of such securities, (c) securities issued pursuant to acquisitions or strategic transactions approved by a majority
of the disinterested directors of the Company, provided that such securities are issued as “restricted securities” (as defined
in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith
during the prohibition period in Section 4.10(a) herein, and provided that any such issuance shall only be to a Person (or to the equityholders
of a Person), which is, itself or through its subsidiaries, an operating company or an owner of 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 (for avoidance of doubt, securities issued to a venture arm of a strategic investor shall be deemed
an “Exempt Issuance”), provided that such securities are issued as “restricted securities” (as defined in Rule
144) and carry no registration rights during the prohibition period in Section 4.10(a) herein, (d) issuances of shares of Common Stock
to consultants or vendors of the Company, provided that such securities are issued as “restricted securities” (as defined
in Rule 144) and carry no registration rights during the prohibition period in Section 4.10(a) herein; and (e) issuances of shares of
Common Stock to existing holders of the Company’s securities in compliance with the terms of agreements entered into with, or instruments
issued to, such holders, provided that such agreements regarding such securities 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 or
to extend the term of such securities, and provided further that such securities are issued as “restricted securities” (as
defined in Rule 144) and carry no registration rights.
“FCPA”
means the Foreign Corrupt Practices Act of 1977, as amended.
“GAAP”
means generally accepted accounting principles in the United States.
“Indebtedness”
shall have the meaning ascribed to such term in Section 3.1(aa).
“Intellectual
Property Rights” shall have the meaning ascribed to such term in Section 3.1(o).
“Liens”
means a lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.
“Lock-Up
Agreement” means each Lock-Up Agreement, dated as of the date hereof, by and among the Company and the directors and
officers of the Company, in the form of Exhibit C attached hereto.
“Material
Adverse Effect” shall have the meaning assigned to such term in Section 3.1(b).
“Material
Permits” shall have the meaning ascribed to such term in Section 3.1(m).
“Meeting” shall
mean one or more meetings of the Company’s stockholders (or any postponement, adjournment or reconvening thereof) at which the Company’s
stockholders of record as of the record date for such Meeting (each, a “Record Date”) shall be asked to adopt and/or
approve, among other things, (i) an amendment to the Company’s Articles of Incorporation, as amended, to increase the number of
authorized shares of Common Stock from 160,000,000 to 1,000,000,000 (the “Authorized Common Stock Increase Proposal”)
and (ii) to allow the Common Warrants to become exercisable in accordance with Nasdaq Listing Rule 5635 (the “Warrant Proposal”).
“Per Share Purchase Price”
equals $0.555, subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions
of shares of Common Stock that occur between the date hereof and the Closing Date.
“Per Pre-Funded Warrant
Purchase Price” equals the Per Share Purchase Price less $0.0001, subject to adjustment for reverse and forward stock splits,
stock dividends, stock combinations and other similar transactions relating to shares of Common Stock that occur after the date of this
Agreement.
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Placement
Agent” means A.G.P./Alliance Global Partners.
“Placement
Agent Counsel” means Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., with offices located at 919 Third Avenue,
New York, NY 10022.
“Pre-Funded
Warrants” means, collectively, the warrants delivered to the Purchasers at Closing in accordance with Section 2.2(a)
hereof, which Pre-Funded Warrants shall be exercisable immediately upon issuance and shall expire in accordance with the terms
thereof, in the form of Exhibit B attached hereto.
“Proceeding”
means an action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation or partial
proceeding, such as a deposition), whether commenced or threatened.
“Prospectus”
means the final prospectus filed pursuant to the Registration Statement.
“Prospectus
Supplement” means the prospectus supplement filed pursuant to the Registration Statement relating to the offering of
Securities pursuant to this Agreement.
“Purchaser
Party” shall have the meaning ascribed to such term in Section 4.8.
“Registration
Statement” means the effective registration statement with the Commission on Form S-3 (File No. 333-254975), which registers
the sale of the Securities and includes any Rule 462(b) Registration Statement.
“Required
Approvals” shall have the meaning ascribed to such term in Section 3.1(e).
“Rule
144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted
from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose
and effect as such Rule.
“Rule
424” means Rule 424 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted
from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose
and effect as such Rule.
“Rule
462(b) Registration Statement” means any registration statement prepared by the Company registering additional Securities,
which was filed with the Commission on or prior to the date hereof and became automatically effective pursuant to Rule 462(b)
promulgated by the Commission pursuant to the Securities Act.
“SEC
Reports” shall have the meaning ascribed to such term in Section 3.1(h).
“Securities”
means the Shares, the Warrants and the Warrant Shares.
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Series C Warrants”
means, collectively, the Series C Common Stock purchase warrants to be delivered to the Purchasers at the Closing in accordance with Section
2.2(a) hereof, which Series C Common Stock purchase warrants shall be exercisable from and after the Approval Date (as defined below)
and have a term equal to the later of (A) ten (10) Trading Days following the Approval Date and (B) the earlier of (x) two years from
the Initial Exercise Date (as defined therein) and (y) ten (10) Trading Days following the Company’s public announcement of the
FDA’s (as defined below) acknowledgement and acceptance of the Company’s new drug application (NDA) relating to TNX-102 SL
in patients with Fibromyalgia, such Series C Warrant in substantially the form of Exhibit A-1 attached hereto.
“Series D Warrants”
means, collectively, the Series D Common Stock purchase warrants to be delivered to the Purchasers at the Closing in accordance with Section
2.2(a) hereof, which Series D Common Stock purchase warrants shall be exercisable from and after the Approval Date and have a term equal
to the later of (A) ten (10) Trading Days following the Approval Date and (B) five years from the Initial Exercise Date (as defined therein),
such Series D Warrant in substantially the form of Exhibit A-2 attached hereto.
“Shares”
means the shares of Common Stock issued and issuable to each Purchaser pursuant to this Agreement.
“Short
Sales” means all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall
not be deemed to include locating and/or borrowing shares of Common Stock).
“Subscription
Amount” means, as to each Purchaser, the aggregate amount to be paid for shares of Common Stock, and Pre-Funded Warrants,
purchased hereunder as specified below such Purchaser’s name on the signature page of this Agreement and next to the heading
“Subscription Amount,” in United States dollars and in immediately available funds.
“Subsidiary”
means any subsidiary of the Company as set forth in the SEC Reports and shall, where applicable, also include any direct or indirect
subsidiary of the Company formed or acquired after the date hereof.
“Trading
Day” means a day on which the principal Trading Market is open for trading.
“Trading
Market” means any of the following markets or exchanges on which the shares of Common Stock are listed or quoted for
trading on the date in question: the NYSE American, the Nasdaq
Capital Market, the Nasdaq Global Market, the Nasdaq Global Select
Market, or the New York Stock Exchange (or any successors to any of the foregoing).
“Transaction
Documents” means this Agreement, the Warrants, the Lock-Up Agreements and all exhibits and schedules thereto and hereto
and any other documents or agreements executed in connection with the transactions contemplated hereunder.
“Transfer
Agent” means vStock Transfer, LLC, the current transfer agent of the Company, with a mailing address at 18 Lafayette
Place, Woodmere, NY 11598.
“Variable
Rate Transaction” shall have the meaning ascribed to such term in Section 4.10(b).
“Warrants”
means the Common Warrants and the Pre-Funded Warrants.
“Warrant
Shares” means the shares of Common Stock issuable upon exercise of the Warrants.
ARTICLE
II.
PURCHASE AND SALE
2.1
Closing. On the Closing Date, upon the terms and subject to the conditions set forth herein, substantially concurrent with
the execution and delivery of this Agreement by the parties hereto, the Company agrees to sell, and the Purchasers, severally
and not jointly, agree to purchase, (i) the number of shares of Common Stock set forth under the heading “Subscription Amount”
on the Purchaser’s signature page hereto, at the Per Share Purchase Price, and (ii) Common Warrants exercisable for shares
of Common Stock as calculated pursuant to 2.2(a); provided, however, that, to the extent that a Purchaser determines, in its sole
discretion, that such Purchaser (together with such Purchaser’s Affiliates, and any Person acting as a group together with
such Purchaser or any of such Purchaser’s Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation,
or as such Purchaser may otherwise choose, in lieu of purchasing shares of Common Stock, such Purchaser may elect to purchase
Pre-Funded Warrants in lieu of shares of Common Stock in such manner to result in the full Subscription Amount being paid by such
Purchaser to the Company. The “Beneficial Ownership Limitation” shall be 4.99% (or, at the election of the
Purchaser, 9.99%) of the number of shares of Common Stock, in each case, outstanding immediately after giving effect to the issuance
of the Securities on the Closing Date.
Each
Purchaser’s Subscription Amount as set forth on the signature page hereto executed by such Purchaser shall be made available
for Delivery Versus Payment (“DVP”) settlement with the Company or its designees. The Company shall deliver
to each Purchaser its respective Shares and Warrants as determined pursuant to Section 2.2(a), and the Company and each Purchaser
shall deliver the other items set forth in Section 2.2 at the Closing. Upon satisfaction of the covenants and conditions set forth
in Sections 2.2 and 2.3, the Closing shall occur at the office of the Placement Agent or such other location as the parties shall
mutually agree. Unless otherwise directed by the Placement Agent, settlement of the Shares shall occur via DVP (i.e., on the Closing
Date, the Company shall issue the Shares registered in the Purchasers’ names and addresses and released by the Transfer
Agent directly to the account(s) at the Placement Agent identified by each Purchaser; upon receipt of such Shares, the Placement
Agent shall promptly electronically deliver such Shares to the applicable Purchaser, and payment therefor shall be made by the
Placement Agent (or its clearing firm) by wire transfer to the Company). Notwithstanding anything herein to the contrary, if at
any time on or after the time of execution of this Agreement by the Company and an applicable Purchaser through the Closing (the
“Pre-Settlement Period”), such Purchaser sells to any Person all, or any portion, of any Shares to be issued
hereunder to such Purchaser at the Closing (collectively, the “Pre-Settlement Shares”), such Person shall,
automatically hereunder (without any additional required actions by such Purchaser or the Company), be deemed to be a Purchaser
under this Agreement
unconditionally bound to purchase, and the Company shall be deemed unconditionally bound to sell, such Pre-Settlement
Shares to such Person at the Closing; provided, that the Company shall not be required to deliver any Pre-Settlement Shares to
such Purchaser prior to the Company’s receipt of the Subscription Amount for such Pre-Settlement Shares hereunder; provided,
further, that the Company hereby acknowledges and agrees that the forgoing shall not constitute a representation or covenant by
such Purchaser as to whether or not such Purchaser will elect to sell any Pre-Settlement Shares during the Pre-Settlement Period.
The decision to sell any Shares will be made in the sole discretion of such Purchaser from time to time, including during the
Pre-Settlement Period. Notwithstanding the foregoing, with respect to any Notice(s) of Exercise (as defined in the Warrants) delivered
on or prior to 12:00 p.m. (New York City time) on the Closing Date, which may be delivered at any time after the time of execution
of this Agreement, the Company agrees to deliver the Warrant Shares subject to such notice(s) by 4:00 p.m. (New York City time)
on the Closing Date and the Closing Date shall be the Warrant Share Delivery Date (as defined in the Warrants) for purposes hereunder.
2.2
Deliveries.
| (a) | On
or prior to the Closing Date, the Company shall deliver or cause to be delivered to each
Purchaser the following: |
| (i) | this
Agreement duly executed by the Company; |
| (ii) | the
Company’s wire instructions, on Company letterhead and executed by the Company’s
Chief Executive Officer or Chief Financial Officer; |
| (iii) | subject
to the third sentence in Section 2.1, a copy of the irrevocable instructions to the Transfer
Agent instructing the Transfer Agent to deliver on an expedited basis via The Depository
Trust Company Deposit or Withdrawal at Custodian system shares of Common Stock equal
to the portion of such Purchaser’s Subscription Amount divided by the Per Share
Purchase Price, registered in the name of such Purchaser; |
| (iv) | for
each Purchaser of Pre-Funded Warrants pursuant to Section 2.1, a Pre-Funded Warrant registered
in the name of such Purchaser to purchase up to a number of shares of Common Stock equal
to the portion of such Purchaser’s Subscription Amount applicable to Pre-Funded
Warrants divided by the sum of the Per Pre-Funded Warrant Purchase Price plus the exercise
price per Warrant Share underlying such Pre-Funded Warrants, subject to adjustment therein; |
| (v) | the
Prospectus and the Prospectus Supplement (which may be delivered in accordance with Rule
172 under the Securities Act); |
| (vi) | a Series C Warrant registered in the name of such Purchaser to purchase
up to a number of shares of Common Stock equal to 150% of such Purchaser’s shares of Common Stock or Pre-Funded Warrants, as applicable,
with an exercise price equal to $0.555 per share, subject to adjustment therein; |
| (vii) | a Series D Warrant registered in the name of such Purchaser to purchase
up to a number of shares of Common Stock equal to 150% of such Purchaser’s shares of Common Stock or Pre-Funded Warrants, as applicable,
with an exercise price equal to $0.85 per share, subject to adjustment therein; |
| (viii) | the
duly executed Lock-Up Agreements; |
| (ix) | a
certificate executed by the Chief Executive Officer and Chief Financial Officer of the
Company, dated as of the date of the Closing Date, in form and substance reasonably acceptable
to the Purchasers and Placement Agent; |
| (x) | a
certificate executed by the Secretary of the Company, dated as of the date of Closing,
in form and substance reasonable acceptable to the Purchasers and Placement Agent; |
| (xi) | a
legal opinion of Company Counsel, in form reasonably acceptable to the Placement Agent
and the Purchasers; |
| (xii) | a
legal opinion of Haley Giuliano LLP, intellectual property counsel to the Company, in
form reasonably acceptable to the Placement Agent and the Purchasers; and |
| (xiii) | a
legal opinion of Brownstein Hyatt Farber Schreck, LLP, local Nevada counsel to the Company,
in form reasonably acceptable to the Placement Agent and the Purchasers. |
| (b) | On
or prior to the Closing Date, each Purchaser shall deliver or cause to be delivered to
the Company, the following: |
| (i) | this
Agreement duly executed by such Purchaser; and |
| (ii) | such
Purchaser’s Subscription Amount with respect to the Securities purchased by such
Purchaser, which shall be made available for DVP settlement with the Company or its designees. |
2.3
Closing Conditions.
| (a) | The
obligations of the Company hereunder in connection with the Closing are subject to the
following conditions being met: |
| (i) | the
accuracy in all material respects (or, to the extent representations or warranties are
qualified by materiality or Material Adverse Effect, in all respects) when made and on
the Closing Date of the representations and warranties of the Purchasers contained herein
(unless as of a specific date therein in which case they shall be accurate as of such
date); |
| (ii) | all
obligations, covenants and agreements of each Purchaser required to be performed at or
prior to the Closing Date shall have been performed; and |
| (iii) | the
delivery by each Purchaser of the items set forth in Section 2.2(b) of this Agreement. |
| (b) | The
respective obligations of the Purchasers hereunder in connection with the Closing are
subject to the following conditions being met: |
| (i) | the
accuracy in all material respects (or, to the extent representations or warranties are
qualified by materiality or Material Adverse Effect, in all respects) when made and on
the Closing Date of the representations and warranties of the Company contained herein
(unless as of a specific date therein in which case they shall be accurate as of such
date); |
| (ii) | all
obligations, covenants and agreements of the Company required to be performed at or prior
to the Closing Date shall have been performed; |
| (iii) | the
delivery by the Company of the items set forth in Section 2.2(a) of this Agreement; |
| (iv) | there
shall have been no Material Adverse Effect with respect to the Company since the date
hereof; and |
| (v) | from
the date hereof to the Closing Date, trading in the Common Stock shall not have been
suspended by the Commission or any Trading Market, and, at any time prior to the Closing
Date, trading in securities generally as reported by Bloomberg L.P. shall not have been
suspended or limited, or minimum prices shall not have been established on securities
whose trades are reported by such service, or on any Trading Market, nor shall a banking
moratorium have been declared either by the United States or New York State authorities
nor shall there have occurred after the date of this Agreement any material outbreak
or escalation of hostilities or other national or international calamity of such magnitude
in its effect on, or any material adverse change in, any financial market which, in each
case, in the reasonable judgment of such Purchaser, makes it impracticable or inadvisable
to purchase the Securities at the Closing. |
ARTICLE
III.
REPRESENTATIONS AND WARRANTIES
3.1
Representations and Warranties of the Company. Except as set forth in the Disclosure Schedules, which Disclosure Schedules
shall be deemed a part hereof and shall qualify any representation made herein to the extent of the disclosures contained in the
corresponding section of the Disclosure Schedules, the Company hereby makes the following representations and warranties to each
Purchaser:
| (a) | Subsidiaries.
All of the direct and indirect subsidiaries of the Company are set forth on Schedule
3.1(a). The Company owns, directly or indirectly, all of the capital stock or other
equity interests of each Subsidiary, free and clear of any Liens, and all of the issued
and outstanding shares of capital stock of each Subsidiary are validly issued and are
fully paid, non-assessable and free of preemptive and similar rights to subscribe for
or purchase securities. If the Company has no subsidiaries, all other references to the
Subsidiaries or any of them in the Transaction Documents shall be disregarded. |
| (b) | Organization
and Qualification. The Company and each of the Subsidiaries is an entity duly incorporated
or otherwise organized, validly existing, and, if applicable under the laws of the jurisdiction
in which they are formed, in good standing under the laws of the jurisdiction of its
incorporation or organization, with the requisite power and authority to own and use
its properties and assets and to carry on its business as currently conducted. Neither
the Company nor any Subsidiary is in violation nor default of any of the provisions of
its respective memorandum of association, articles of association, certificate or articles
of incorporation, bylaws, operating agreement, or other organizational or charter documents.
Each of the Company and the Subsidiaries is duly qualified to conduct business and is
in good standing as a foreign corporation or other entity in each jurisdiction in which
the nature of the business conducted or property owned by it makes such qualification
necessary, except where the failure to be so qualified or in good standing, as the case
may be, could not have or reasonably be expected to result in: (i) a material adverse
effect on the legality, validity or enforceability of any Transaction Document, (ii)
a material adverse effect on the results of operations, assets, business, prospects or
condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole,
or (iii) a material adverse effect on the Company’s ability to perform in any material
respect on a timely basis its obligations under any Transaction Document (any of (i),
(ii) or (iii), a “Material Adverse Effect”) and no Proceeding has been instituted
in any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit
or curtail such power and authority or qualification. |
| (c) | Authorization;
Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions
contemplated by this Agreement and each of the other Transaction Documents and otherwise to carry out its obligations hereunder
and thereunder. The execution and delivery of this Agreement and each of the other Transaction Documents by the Company and the
consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary action on the
part of the Company and no further action is required by the Company, the Board of Directors, a committee of the Board of Directors
or the Company’s shareholders in connection herewith or therewith other than in connection with the Required Approvals.
This Agreement and each other Transaction Document to which it is a party has been (or upon delivery will have been) duly executed
by the Company and, when delivered in accordance with the terms hereof and thereof, will constitute the valid and binding obligation
of the Company enforceable against the Company in accordance with its terms, |
| | | except
(i) as limited by general equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting enforcement
of creditors’ rights generally, (ii) as limited by laws relating to the availability
of specific performance, injunctive relief or other equitable remedies and (iii) insofar
as indemnification and contribution provisions may be limited by applicable law. |
| | | |
| (d) | No
Conflicts. Except as set forth in Schedule 3.1(d), the execution, delivery
and performance by the Company of this Agreement and the other Transaction Documents
to which it is a party, the issuance and sale of the Securities and the consummation
by it of the transactions contemplated hereby and thereby do not and will not (i) conflict
with or violate any provision of the Company’s or any Subsidiary’s memorandum
of association, articles of association, certificate or articles of incorporation, bylaws,
operating agreement, or other organizational or charter documents, or (ii) conflict with,
or constitute a default (or an event that with notice or lapse of time or both would
become a default) under, result in the creation of any Lien upon any of the properties
or assets of the Company or any Subsidiary, or give to others any rights of termination,
amendment, anti-dilution or similar adjustments acceleration or cancellation (with or
without notice, lapse of time or both) of, any agreement, credit facility, debt or other
instrument (evidencing a Company or Subsidiary debt or otherwise) or other understanding
to which the Company or any Subsidiary is a party or by which any property or asset of
the Company or any Subsidiary is bound or affected, or (iii) subject to the Required
Approvals, conflict with or result in a violation of any law, rule, regulation, order,
judgment, injunction, decree or other restriction of any court or governmental authority
to which the Company or a Subsidiary is subject (including federal and state securities
laws and regulations), or by which any property or asset of the Company or a Subsidiary
is bound or affected; except in the case of each of clauses (ii) and (iii), such as could
not have or reasonably be expected to result in a Material Adverse Effect. |
| (e) | Filings,
Consents and Approvals. The Company is not required to obtain any consent, waiver,
authorization or order of, give any notice to, or make any filing or registration with,
any court or other federal, state, local or other governmental authority or other Person
in connection with the execution, delivery and performance by the Company of the Transaction
Documents, other than: (i) the filings required pursuant to Section 4.4 of this Agreement,
(ii) the filing with the Commission of the Prospectus Supplement, (iii) notices and/or
application(s) to and approvals by each applicable Trading Market for the listing of
the applicable Securities for trading thereon in the time and manner required thereby,
and (iv) filings required by the Financial Industry Regulatory Authority (“FINRA”)
(collectively, the “Required Approvals”). |
| (f) | Issuance
of the Securities; Registration. The Shares and Warrant Shares underlying the Pre-Funded Warrants are duly
authorized and, when issued and paid for in accordance with the applicable Transaction Documents, will be duly and validly issued, fully
paid and non-assessable, free and clear of all Liens imposed by the Company. From and after the Common Stock Increase Effective Date,
the Warrant Shares underlying the Common Warrants will be duly authorized, and, when issued and paid for in accordance with the applicable
Transaction Documents, will be duly and validly issued, fully paid and non-assessable, free and clear of all Liens imposed by the Company.
The Warrants are duly authorized and, when issued in accordance with this Agreement, will be duly and validly issued, fully paid and non-assessable,
and free and clear of all Liens imposed by the Company. The Company has reserved from its duly authorized capital stock the maximum number
of shares of Common Stock issuable pursuant to this Agreement and the Pre-Funded Warrants. From and after the Common Stock Increase Effective
Date, the Company will have reserved from its duly authorized capital stock the maximum number of shares of Common Stock issuable pursuant
to the Common Warrants. |
| | | The Company has prepared and filed the Registration Statement in conformity
with the requirements of the Securities Act, which Registration Statement became effective on May 5, 2021, including the Prospectus, and
such amendments and supplements thereto as may have been required to the date of this Agreement. The Registration Statement is effective
under the Securities Act and no stop order preventing or suspending the effectiveness of the Registration Statement or suspending or preventing
the use of the Prospectus or the Prospectus Supplement has been issued by the Commission and no proceedings for that purpose have been
instituted or, to the knowledge of the Company, are threatened by the Commission. The Company, if required by the rules and regulations
of the Commission, shall file the Prospectus or Prospectus Supplement with the Commission pursuant to Rule 424(b). At the time the Registration
Statement and any amendments thereto became effective as determined under the Securities Act, at the date of this Agreement and at the
Closing Date, the Registration Statement and any amendments thereto conformed and will conform in all material respects to 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 Prospectus, Prospectus Supplement and any amendments
or supplements thereto, at the time the Prospectus, the Prospectus Supplement or any amendment or supplement thereto was issued and at
the Closing Date, conformed and will conform in all material respects to 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
the light of the circumstances under which they were made, not misleading. The Company was at the time of the filing of the Registration
Statement eligible to use Form S-3. The Company is eligible to use Form S-3 under the Securities Act and it meets the transaction requirements
with respect to the aggregate market value of the common equity held by non-affiliates prior to this offering as set forth in General
Instruction I.B.I of Form S-3. |
| | | |
| (g) | Capitalization.
The capitalization of the Company as of the date hereof is as set forth on Schedule 3.1(g), which Schedule 3.1(g) shall
also include the number of shares of Common Stock owned beneficially, and of record, by Affiliates of the Company as of the date hereof.
The Company has not issued any shares since its most recently filed periodic report under the Exchange Act. No Person has any right of
first refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated by the
Transaction Documents. Except as set forth on Schedule 3.1(g) and as a result of the purchase and sale of the Securities, there
are no outstanding options, warrants, scrip rights to subscribe to, calls or commitments of any character whatsoever relating to, or
securities, rights or obligations convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe for
or acquire, any shares of Common Stock, or contracts, commitments, understandings or arrangements by which the Company or any Subsidiary
is or may become bound to issue additional shares of Common Stock or securities convertible, exercisable or exchangeable into shares
of Common Stock (“Common Stock Equivalents”). The issuance and sale of the Securities will not obligate the Company
or any Subsidiary to issue shares of Common Stock or other securities to any Person (other than the Purchasers). Except as set forth
on Schedule 3.1(g), there are no outstanding securities or instruments of the Company or any Subsidiary with any provision that adjusts
the exercise, conversion, exchange or reset price under any of such securities. There are no outstanding securities or instruments of
the Company or any Subsidiary that contain any redemption or similar provisions, and there are no contracts, commitments, understandings
or arrangements by which the Company or any Subsidiary is or may become bound to redeem a security of the Company or such Subsidiary.
The Company does not have any share appreciation rights or “phantom share” plans or agreements or any similar plan or agreement.
All of the outstanding shares of the Company are duly authorized, validly issued, fully paid and non-assessable, have been issued in
compliance with all federal and state securities laws where applicable, and none of such outstanding shares was issued in violation of
any preemptive rights or similar rights to subscribe for or purchase securities. Except for the Required Approvals, no further approval
or authorization of any shareholder, the Board of Directors or others is required for the issuance and sale of the Securities. There
are no shareholders agreements, voting agreements or other similar agreements with respect to the Company’s share capital to which
the Company is a party or, to the knowledge of the Company, between or among any of the Company’s shareholders. |
| | | Except
for the Required Approvals, no further approval or authorization of any shareholder,
the Board of Directors or others is required for the issuance and sale of the Securities.
There are no shareholders agreements, voting agreements or other similar agreements with
respect to the Company’s share capital to which the Company is a party or, to the
knowledge of the Company, between or among any of the Company’s shareholders. |
| | | |
| (h) | SEC
Reports; Financial Statements. The Company has filed all reports, schedules, forms,
statements and other documents required to be filed by the Company under the Securities
Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the
one year preceding the date hereof (or such shorter period as the Company was required
by law or regulation to file such materials) (the foregoing materials, including the
exhibits thereto and documents incorporated by reference therein, together with the Prospectus,
being collectively referred to herein as the “SEC Reports”) on a timely
basis or has received a valid extension of such time of filing and has filed any such
SEC Reports prior to the expiration of any such extension. As of their respective dates,
the SEC Reports complied in all material respects with the requirements of the Securities
Act and the Exchange Act, as applicable, and none of the SEC Reports, when filed, contained
any untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading. In addition, any further
documents so filed and incorporated by reference to the Prospectus and Prospectus Supplement,
when such documents are filed with the Commission, will conform in all material respects
to the requirements of the Exchange Act and the applicable rules and regulations, as
applicable, and will not contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements therein, in light of the circumstances
under which they were made not misleading. The financial statements of the Company included
in the SEC Reports comply in all material respects with applicable accounting requirements
and the rules and regulations of the Commission with respect thereto as in effect at
the time of filing. Such financial statements have been prepared in accordance with GAAP,
except as may be otherwise specified in such financial statements or the notes thereto
and except that unaudited financial statements may not contain all footnotes required
by GAAP, and fairly present in all material respects the financial position of the Company
and its consolidated Subsidiaries as of and for the dates thereof and the results of
operations and cash flows for the periods then ended, subject, in the case of unaudited
statements, to normal, immaterial, year-end audit adjustments. |
| (i) | Material Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest audited financial statements included within the SEC Reports, except as set forth on Schedule 3.1(i), (i) there has been no event, occurrence or development that has had or that could reasonably be expected to result in a Material Adverse Effect, (ii) the Company has not incurred any liabilities (contingent or otherwise) other than (A) trade payables and accrued expenses incurred in the ordinary course of business consistent with past practice and strategic acquisitions and (B) liabilities not required to be reflected in the Company’s financial statements pursuant to GAAP or disclosed in filings made with the Commission, (iii) the Company has not altered its method of accounting, (iv) the Company has not declared or made any dividend or distribution of cash or other property to its shareholders or purchased, redeemed or made any agreements to purchase or redeem any of its shares other than the repurchase of Common Stock pursuant to a stock buyback program and (v) the Company has not issued any equity securities to any officer, director or Affiliate, except pursuant to existing Company share option plans. Except for the issuance of the Securities
|
| | | contemplated by this Agreement or as set forth on Schedule 3.1(i), no event, liability, fact, circumstance, occurrence or development has occurred or exists or is reasonably expected to occur or exist with respect to the Company or its Subsidiaries or their respective businesses, prospects, properties, operations, assets or financial condition that would be required to be disclosed by the Company under applicable securities laws at the time this representation is made or deemed made that has not been publicly disclosed at least one (1) Trading Day prior to the date that this representation is made. |
| | | |
| (j) | Litigation.
Except as set forth on Schedule 3.1(j), there is no action, suit, inquiry, notice
of violation, proceeding or investigation pending or, to the knowledge of the Company,
threatened against or affecting the Company, any Subsidiary or any of their respective
properties before or by any court, arbitrator, governmental or administrative agency
or regulatory authority (federal, state, county, local or foreign) (collectively, an
“Action”) which (i) adversely affects or challenges the legality,
validity or enforceability of any of the Transaction Documents, the Shares or the Warrant
Shares (ii) could, if there were an unfavorable decision, have or reasonably be expected
to result in a Material Adverse Effect. Except as set forth on Schedule 3.1(j),
neither the Company nor any Subsidiary, nor any director or officer thereof, is or has
been the subject of any Action involving a claim of violation of or liability under federal
or state securities laws or a claim of breach of fiduciary duty, which could result in
a Material Adverse Effect. There has not been, and to the knowledge of the Company, there
is not pending or contemplated, any investigation by the Commission involving the Company
or any current or former director or officer of the Company. The Commission has not issued
any stop order or other order suspending the effectiveness of any registration statement
filed by the Company or any Subsidiary under the Exchange Act or the Securities Act. |
| (k) | Labor
Relations. No labor dispute exists or, to the knowledge of the Company, is imminent
with respect to any of the employees of the Company, which could reasonably be expected
to result in a Material Adverse Effect. None of the Company’s or its Subsidiaries’
employees is a member of a union that relates to such employee’s relationship with
the Company or such Subsidiary, and neither the Company nor any of its Subsidiaries is
a party to a collective bargaining agreement, and the Company and its Subsidiaries believe
that their relationships with their employees are good. To the knowledge of the Company,
no executive officer of the Company or any Subsidiary, is, or is now expected to be,
in violation of any material term of any employment contract, confidentiality, disclosure
or proprietary information agreement or non-competition agreement, or any other contract
or agreement or any restrictive covenant in favor of any third party, and the continued
employment of each such executive officer does not subject the Company or any of its
Subsidiaries to any liability with respect to any of the foregoing matters. The Company
and its Subsidiaries are in compliance with all applicable U.S. federal, state, local
and foreign laws and regulations relating to employment and employment practices, terms
and conditions of employment and wages and hours, except where the failure to be in compliance
could not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. |
| (l) | Compliance.
Neither the Company nor any Subsidiary: (i) is in default under or in violation of (and
no event has occurred that has not been waived that, with notice or lapse of time or
both, would result in a default by the Company or any Subsidiary under), nor has the
Company or any Subsidiary received notice of a claim that it is in default under or that
it is in violation of, any indenture, loan or credit agreement or any other agreement
or instrument to which it is a party or by which it or any of its properties is bound
(whether |
| | | or not such default or violation has been waived), (ii) is in violation of any
judgment, decree or order of any court, arbitrator or other governmental authority or
(iii) is or has been in violation of any statute, rule, ordinance or regulation of any
governmental authority, including without limitation all foreign, federal, state and
local laws relating to taxes, environmental protection, occupational health and safety,
product quality and safety and employment and labor matters, except in each case of (i),
(ii) and (iii) as could not have or reasonably be expected to result in a Material Adverse
Effect. |
| | | |
| (m) | Environmental
Laws. The Company and its Subsidiaries (i) are in compliance with all federal, state,
local and foreign laws relating to pollution or protection of human health or the environment
(including ambient air, surface water, groundwater, land surface or subsurface strata),
including laws relating to emissions, discharges, releases or threatened releases of
chemicals, pollutants, contaminants, or toxic or hazardous substances or wastes (collectively,
“Hazardous Materials”) into the environment, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal, transport or
handling of Hazardous Materials, as well as all authorizations, codes, decrees, demands,
or demand letters, injunctions, judgments, licenses, notices or notice letters, orders,
permits, plans or regulations, issued, entered, promulgated or approved thereunder (“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 where in each clause (i), (ii) and (iii), the failure to so comply could be
reasonably expected to have, individually or in the aggregate, a Material Adverse Effect. |
| (n) | Regulatory
Permits. The Company and the Subsidiaries possess all certificates, authorizations
and permits issued by the appropriate federal, state, local or foreign regulatory authorities
necessary to conduct their respective businesses as described in the SEC Reports, except
where the failure to possess such certificates, authorizations or permits could not reasonably
be expected to result in a Material Adverse Effect (“Material Permits”),
and neither the Company nor any Subsidiary has received any notice of proceedings relating
to the revocation or modification of any Material Permit. |
| (o) | Title
to Assets. The Company and the 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 the Subsidiaries,
in each case free and clear of all Liens, except for (i) Liens as do not materially affect
the value of such property and do not materially interfere with the use made and proposed
to be made of such property by the Company and the Subsidiaries and (ii) Liens for the
payment of federal, state or other taxes, for which appropriate reserves have been made
therefor in accordance with GAAP and, the payment of which is neither delinquent nor
subject to penalties. Any real property and facilities held under lease by the Company
and the Subsidiaries are held by them under valid, subsisting and enforceable leases
with which the Company and the Subsidiaries are in compliance in all material respects. |
| (p) | Intellectual
Property. The Company and the Subsidiaries have, or have rights to use, all patents, patent applications, trademarks, trademark
applications, service marks, trade names, trade secrets, inventions, copyrights, licenses and other intellectual property rights
and similar rights necessary or required for use in connection with their respective businesses as described in the SEC Reports
and which the failure to so have could have a Material Adverse Effect (collectively, the “Intellectual Property Rights”).
None of, and |
| | | neither
the Company nor any Subsidiary has received a notice (written or otherwise) that any
of, the Intellectual Property Rights has expired, terminated or been abandoned, or is
expected to expire or terminate or be abandoned, within two (2) years from the date of
this Agreement except as would not reasonably be expected to have a Material Adverse
Effect. Neither the Company nor any Subsidiary has received, since the date of the latest
audited financial statements included within the SEC Reports, a written notice of a claim
or otherwise has any knowledge that the Intellectual Property Rights violate or infringe
upon the rights of any Person, except as could not have or reasonably be expected to
not have a Material Adverse Effect. To the knowledge of the Company, all such Intellectual
Property Rights are enforceable and there is no existing infringement by another Person
of any of the Intellectual Property Rights. The Company and its Subsidiaries have taken
reasonable security measures to protect the secrecy, confidentiality and value of all
of their intellectual properties, except where failure to do so could not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Company
has no knowledge of any facts that would preclude it from having valid license rights
or clear title to the Intellectual Property Rights. The Company has no knowledge that
it lacks or will be unable to obtain any rights or licenses to use all Intellectual Property
Rights that are necessary to conduct its business. |
| | | |
| (q) | Insurance.
The Company and the Subsidiaries are insured by insurers of recognized financial responsibility
against such losses and risks and in such amounts as are prudent and customary in the
businesses in which the Company and the Subsidiaries are engaged, including, but not
limited to, directors and officers insurance coverage at least equal to the aggregate
Subscription Amount. Neither the Company nor any 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 without a significant increase in cost. |
| (r) | Transactions
with Affiliates and Employees. Except as set forth on Schedule 3.1(r), none of the
officers or directors of the Company or any Subsidiary and, to the knowledge of the Company,
none of the employees of the Company or any Subsidiary 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, providing for the borrowing of money from or lending of money to 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, shareholder, member 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 or a Subsidiary and (iii) other employee benefits, including share option agreements
under any share option plan of the Company. |
| (s) | Sarbanes-Oxley;
Internal Accounting Controls. The Company and the Subsidiaries are in material compliance with any and all applicable requirements
of the Sarbanes-Oxley Act of 2002 that are effective as of the date hereof, and any and all applicable rules and regulations promulgated
by the Commission thereunder that are effective as of the date hereof and as of the Closing Date. The Company and the Subsidiaries
maintain a system of internal accounting controls sufficient to provide reasonable assurance that: (i) transactions are executed
in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial |
| | | statements
in conformity with GAAP and to maintain asset accountability, (iii) access to assets
is permitted only in accordance with management’s general or specific authorization,
and (iv) the recorded accountability for assets is compared with the existing assets
at reasonable intervals and appropriate action is taken with respect to any differences.
The Company and the Subsidiaries have established disclosure controls and procedures
(as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company and the Subsidiaries
and designed such disclosure controls and procedures to ensure that information required
to be disclosed by the Company in the reports it files or submits under the Exchange
Act is recorded, processed, summarized and reported, within the time periods specified
in the Commission’s rules and forms. The Company’s certifying officers have
evaluated the effectiveness of the disclosure controls and procedures of the Company
and the Subsidiaries as of the end of the period covered by the most recently filed Form
10-K under the Exchange Act (such date, the “Evaluation Date”). The
Company presented in its most recently filed Form 10-K under the Exchange Act the conclusions
of the certifying officers about the effectiveness of the disclosure controls and procedures
based on their evaluations as of the Evaluation Date. Except as set forth on Schedule
3.1(s), since the Evaluation Date, there have been no changes in the internal control
over financial reporting (as such term is defined in the Exchange Act) that have materially
affected, or is reasonably likely to materially affect, the internal control over financial
reporting of the Company and its Subsidiaries. |
| | | |
| (t) | Certain
Fees. Except as set forth in the Prospectus Supplement, no brokerage or finder’s
fees or commissions are or will be payable by the Company or any Subsidiary 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
(for the avoidance of doubt, the foregoing shall not include any fees and/or commissions
owed to the Transfer Agent). Other than for Persons engaged by any Purchaser, if any,
the Purchasers shall have no obligation with respect to any fees or with respect to any
claims made by or on behalf of other Persons for fees of a type contemplated in this
Section that may be due in connection with the transactions contemplated by the Transaction
Documents. |
| (u) | Investment
Company. The Company is not, and is not an Affiliate of, and immediately after receipt
of payment for the Securities, will not be or be an Affiliate of, an “investment
company” within the meaning of the Investment Company Act of 1940, as amended.
The Company shall conduct its business in a manner so that it will not become an “investment
company” subject to registration under the Investment Company Act of 1940, as amended. |
| (v) | Registration
Rights. Except as set forth on Schedule 3.1(v), no Person has any right to cause
the Company to effect the registration under the Securities Act of any securities of
the Company or any Subsidiary. |
| (w) | Listing
and Maintenance Requirements. The shares of Common Stock are registered pursuant to Section 12(b) or 12(g) of the Exchange
Act, and the Company has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the
registration of the Common Stock under the Exchange Act nor has the Company received any notification that the Commission is contemplating
terminating such registration. Except as previously disclosed in the SEC Reports, the Company has not, in the 12 months preceding
the date hereof, received notice from any Trading Market on which the Common Stock is or has been listed or quoted to the effect
that the Company is not in compliance |
| | | with
the listing or maintenance requirements of such Trading Market. 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 Common Stock is currently eligible
for electronic transfer through The Depository Trust Company or another established clearing
corporation and the Company is current in payment of the fees to The Depository Trust
Company (or such other established clearing corporation) in connection with such electronic
transfer. |
| | | |
| (x) | Application
of Takeover Protections. The Company and the Board of Directors have taken all necessary
action, if any, in order to render inapplicable any control share acquisition, business
combination, poison pill (including any distribution under a rights agreement) or other
similar anti-takeover provision under the Company’s articles of incorporation or
the laws of its state of incorporation that is or could become applicable to the Purchasers
as a result of the Purchasers and the Company fulfilling their obligations or exercising
their rights under the Transaction Documents, including without limitation as a result
of the Company’s issuance of the Securities and the Purchasers’ ownership
of the Securities. |
| (y) | Disclosure.
Except with respect to the material terms and conditions of the transactions contemplated
by the Transaction Documents, the Company confirms that neither it nor any other Person
acting on its behalf has provided any of the Purchasers or their agents or counsel with
any information that it believes constitutes or might constitute material, non-public
information which is not otherwise disclosed in the Prospectus or Prospectus Supplement.
The Company understands and confirms that the Purchasers will rely on the foregoing representation
in effecting transactions in securities of the Company. All of the disclosure furnished
by or on behalf of the Company to the Purchasers regarding the Company and its Subsidiaries,
their respective businesses 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 the light of the circumstances under
which they were made, not misleading. The press releases disseminated by the Company
during the twelve (12) 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 believes, to its best knowledge, that no Purchaser makes
or has made any representations or warranties with respect to the transactions contemplated
hereby other than those specifically set forth in Section 3.2 hereof. |
| (z) | No
Integrated Offering. Assuming the accuracy of the Purchasers’ representations
and warranties set forth in Section 3.2, neither the Company, nor any of its Affiliates,
nor any Person acting on its or their behalf has, directly or indirectly, made any offers
or sales of any security or solicited any offers to buy any security, under circumstances
that would cause this offering of the Securities to be integrated with prior offerings
by the Company for purposes of any applicable shareholder approval provisions of any
Trading Market on which any of the securities of the Company are listed or designated. |
| (aa) | Solvency.
Based on the consolidated financial condition of the Company as of the Closing Date, after giving effect to the receipt by the
Company of the proceeds from the sale of the Securities hereunder, (i) the fair saleable value of the Company’s assets exceeds
the amount that will be required to be paid on or in respect of the Company’s existing debts and other |
| | | liabilities
(including known contingent liabilities) as they mature, (ii) the Company’s assets
do not constitute unreasonably small capital to carry on its business as now conducted
and as proposed to be conducted including its capital needs taking into account the particular
capital requirements of the business conducted by the Company, consolidated and projected
capital requirements and capital availability thereof, and (iii) the current cash flow
of the Company, together with the proceeds the Company would receive, were it to liquidate
all of its assets, after taking into account all anticipated uses of the cash, would
be sufficient to pay all amounts on or in respect of its liabilities when such amounts
are required to be paid. The Company does not intend to incur debts beyond its ability
to pay such debts as they mature (taking into account the timing and amounts of cash
to be payable on or in respect of its debt). The Company has no knowledge of any facts
or circumstances, which lead it to believe that it will file for reorganization or liquidation
under the bankruptcy or reorganization laws of any jurisdiction within one year from
the Closing Date. Schedule 3.1(aa) sets forth as of the date hereof all outstanding
secured and unsecured Indebtedness of the Company or any Subsidiary, or for which the
Company or any Subsidiary has commitments. For the purposes of this Agreement, “Indebtedness”
means (x) any liabilities for borrowed money or amounts owed by the Company in excess
of $50,000 (other than trade accounts payable incurred in the ordinary course of business),
(y) all guaranties, endorsements and other contingent obligations in respect of indebtedness
of others to third parties, whether or not the same are or should be reflected in the
Company’s consolidated balance sheet (or the notes thereto), except guaranties
by endorsement of negotiable instruments for deposit or collection or similar transactions
in the ordinary course of business; and (z) the present value of any lease payments in
excess of $50,000 due under leases required to be capitalized in accordance with GAAP.
Neither the Company nor any Subsidiary is in default with respect to any Indebtedness. |
| | | |
| (bb) | Tax
Compliance. Except for matters that would not, individually or in the aggregate,
have or reasonably be expected to result in a Material Adverse Effect, or as set forth
on Schedule 3.1(bb), the Company and its Subsidiaries each (i) has made or filed
all federal, state and local income and all foreign income and franchise tax returns,
reports and declarations required by any jurisdiction to which it is subject, (ii) has
paid all taxes and other governmental assessments and charges, fines or penalties that
are material in amount, shown or determined to be due on such returns, reports and declarations
and (iii) has set aside on its financial statements provision reasonably adequate for
the payment of all material tax liability of which has not been finally determined and
all material 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 or of
any Subsidiary know of no basis for any such claim. |
| (cc) | Foreign
Corrupt Practices. Neither the Company nor any Subsidiary, nor to the knowledge of
the Company or any Subsidiary, any agent or other person acting on behalf of the Company
or any Subsidiary, 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 any Subsidiary
(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 FCPA. |
| (dd) | Accountants.
The Company’s independent registered public accounting firm is as set forth in the Prospectus Supplement. To the knowledge
and belief of the Company, such |
| | | accounting
firm (i) is a registered public accounting firm as required by the Exchange Act and (ii)
shall express its opinion with respect to the financial statements to be included in
the Company’s Annual Report for the fiscal year ended December 31, 2022. |
| | | |
| (ee) | Acknowledgment
Regarding Purchasers’ Purchase of Securities. The Company acknowledges and
agrees that each of the Purchasers is acting solely in the capacity of an arm’s
length purchaser with respect to the Transaction Documents and the transactions contemplated
thereby. The Company further acknowledges that no Purchaser is acting as a financial
advisor or fiduciary of the Company (or in any similar capacity) with respect to the
Transaction Documents and the transactions contemplated thereby and any advice given
by any Purchaser or any of their respective representatives or agents in connection with
the Transaction Documents and the transactions contemplated thereby is merely incidental
to the Purchasers’ purchase of the Securities. The Company further represents to
each Purchaser that the Company’s decision to enter into this Agreement and the
other Transaction Documents has been based solely on the independent evaluation of the
transactions contemplated hereby by the Company and its representatives. |
| (ff) | Acknowledgment
Regarding Purchaser’s Trading Activity. Anything in this Agreement or elsewhere
herein to the contrary notwithstanding (except for Sections 3.2(f) and 4.12 hereof),
it is understood and acknowledged by the Company that: (i) none of the Purchasers has
been asked by the Company to agree, nor has any Purchaser agreed, to desist from purchasing
or selling, long and/or short, securities of the Company, or “derivative”
securities based on securities issued by the Company or to hold the Shares for any specified
term; (ii) past or future open market or other transactions by any Purchaser, specifically
including, without limitation, Short Sales or “derivative” transactions,
before or after the closing of this or future private placement transactions, may negatively
impact the market price of the Company’s publicly-traded securities; (iii) any
Purchaser, and counter-parties in “derivative” transactions to which any
such Purchaser is a party, directly or indirectly, presently may have a “short”
position in the shares of Common Stock, and (iv) each Purchaser shall not be deemed to
have any affiliation with or control over any arm’s length counter-party in any
“derivative” transaction. The Company further understands and acknowledges
that (y) one or more Purchasers may engage in hedging activities at various times during
the period that the shares of Common Stock are outstanding, and (z) such hedging activities
(if any) could reduce the value of the existing shareholders’ equity interests
in the Company at and after the time that the hedging activities are being conducted.
The Company acknowledges that such aforementioned hedging activities do not constitute
a breach of any of the Transaction Documents. |
| (gg) | Regulation
M Compliance. The Company has not, and to its knowledge no one 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 shares of Common Stock, (ii) except as previously disclosed
in the SEC Reports and pursuant to the Company’s stock buyback program, sold, bid
for, purchased, or, paid any compensation for soliciting purchases of, any of the shares
of Common Stock, or (iii) except as previously disclosed in the SEC Reports and pursuant
to the Company’s stock buyback program, paid or agreed to pay to any Person any
compensation for soliciting another to purchase any other securities of the Company,
other than, in the case of clauses (ii) and (iii), compensation paid to the Company’s
placement agent in connection with the placement of the shares of Common Stock. |
| (hh) | Non-Contravention
of Existing Instruments; No Further Authorizations or Approvals Required. The Company’s execution, delivery and performance
of this Agreement and |
| | | consummation
of the transactions contemplated hereby will not (A) result in a material violation of
any existing applicable law, rule, regulation, judgment, order or decree of any governmental
entity as of the date hereof (including, without limitation, those promulgated by the
Food and Drug Administration of the U.S. Department of Health and Human Services (the
“FDA”) or by any foreign, federal, state or local regulatory authority
performing functions similar to those performed by the FDA), (B) conflict with, result
in any violation or breach of, or constitute a default (or an event that with notice
or lapse of time or both would become a default) under, or give to others any right of
termination, amendment, acceleration or cancellation (with or without notice, lapse of
time or both) (a “Default Acceleration Event”) of, any agreement,
lease, credit facility, debt, note, bond, mortgage, indenture or other instrument (“Contract”)
or obligation or other understanding to which the Company is a party or by which any
property or asset of the Company is bound or affected, except to the extent that such
conflict, default, or Default Acceleration Event is not reasonably likely to result in
a Material Adverse Effect, or (C) result in a breach or violation of any of the terms
and provisions of, or constitute a default under, the Company’s articles of incorporation
(as the same may be amended or restated from time to time) or bylaws (as the same may
be amended or restated from time to time). The Company is not in violation, breach or
default under its articles of incorporation (as the same may be amended or restated from
time to time) or bylaws (as the same may be amended or restated from time to time). Neither
the Company nor, to its knowledge, any other party is in violation, breach or default
of any Contract that has resulted in or could reasonably be expected to result in a Material
Adverse Effect. Each approval, consent, order, authorization, designation, declaration
or filing by or with any regulatory, administrative or other governmental body necessary
in connection with the execution and delivery by the Company of this Agreement and the
performance of the Company of the transactions herein contemplated has been obtained
or made and is in full force and effect, except filings with the Commission required
under the Securities Act or the Exchange Act, or filings with the Exchange pursuant to
the rules and regulations of the Exchange, in each case that are contemplated by this
Agreement to be made after the date of this Agreement. |
| | | |
| (ii) | Stock
Option Plans. Each stock option granted by the Company under the Company’s
stock option plan was granted (i) in accordance with the terms of the Company’s
stock option plan and (ii) with an exercise price at least equal to the fair market value
of the Common Stock on the date such stock option would be considered granted under GAAP
and applicable law. No stock option granted under the Company’s stock option plan
has been backdated. The Company has not knowingly granted, and there is no and has been
no Company policy or practice to knowingly grant, stock options prior to, or otherwise
knowingly coordinate the grant of stock options with, the release or other public announcement
of material information regarding the Company or its Subsidiaries or their financial
results or prospects. |
| (jj) | Cybersecurity.
(i)(x) There has been no security breach or other compromise of or relating to any of the Company’s or any Subsidiary’s
information technology and computer systems, networks, hardware, software, data (including the data of its respective customers,
employees, suppliers, vendors and any third party data maintained by or on behalf of it), equipment or technology (collectively,
“IT Systems and Data”) and (y) the Company and the Subsidiaries have not been notified of, and has no knowledge
of any event or condition that would reasonably be expected to result in, any security breach or other compromise to its IT Systems
and Data; (ii) the Company and the Subsidiaries are presently in compliance with all applicable laws or statutes and all 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 Data and to the protection of
such IT Systems and Data from unauthorized use, access, misappropriation or modification,
except as would not, individually or in the aggregate, have a Material Adverse Effect;
(iii) the Company and the Subsidiaries have implemented and maintained commercially reasonable
safeguards to maintain and protect its material confidential information and the integrity,
continuous operation, redundancy and security of all IT Systems and Data; and (iv) the
Company and the Subsidiaries have implemented backup and disaster recovery technology
consistent with commercially reasonable industry standards and practices. |
| | | |
| (kk) | Office
of Foreign Assets Control. Neither the Company nor any Subsidiary nor, to the Company’s
knowledge, any director, officer, agent, employee or affiliate of the Company or any
Subsidiary is currently subject to any U.S. sanctions administered by the Office of Foreign
Assets Control of the U.S. Treasury Department (“OFAC”). |
| (ll) | U.S.
Real Property Holding Corporation. The Company is not and has never been a U.S. real
property holding corporation within the meaning of Section 897 of the Internal Revenue
Code of 1986, as amended, and the Company shall so certify upon the Purchasers’
request. |
| (mm) | 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 (25%) 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. |
| (nn) | 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. |
| (oo) | [Intentionally Omitted] |
| (pp) | Promotional
Stock Activities. Neither the Company nor any Subsidiary of the Company and none
of their respective officers, directors, managers, affiliates or agents have engaged
in any stock promotional activity that could give rise to a complaint, inquiry, or trading
suspension by the SEC alleging (i) a violation of the anti-fraud provisions of the federal
securities laws, (ii) violations of the anti-touting provisions, (iii) improper “gun-jumping”;
or (iv) promotion without proper disclosure of compensation. |
| (qq) | Regulatory
Matters; Compliance. All preclinical and other nonclinical studies and clinical trials
conducted by or on behalf of the Company that are material to the Company have been adequately
described in the Registration Statement, in all material respects. The clinical trials
and nonclinical studies conducted by or on behalf of the Company that are described in
the Registration Statement or the results of such trials and studies which are referred
to in the Registration Statement were and, if still ongoing, are being conducted in material
compliance with all laws and regulations applicable thereto in the jurisdictions in which
they are being conducted. The descriptions in the Registration Statement of the results
of such trials and studies are accurate and complete in all material respects and fairly
present the data derived from such trials and studies, and the Company has no knowledge
of any clinical trials the aggregate results of which are inconsistent with or otherwise
call into question the results of any clinical trial conducted by or on behalf of the
Company that are described in the Registration Statement or the results of which are
referred to in the Registration Statement. Except as disclosed in the Registration Statement,
the Company has not received any written notices or other communications from the FDA,
the European Medicines Agency (“EMA”) or any other governmental agency or
authority imposing, requiring, requesting or suggesting a clinical hold, termination,
suspension or material modification of any clinical trial that is described in the Registration
Statement or the results of which are referred to in the Registration Statement. Except
as disclosed in the Registration Statement, the Company has not received any written
notices or other communications from the FDA, the EMA or any other governmental agency,
and otherwise has no knowledge of, or reason to believe that, (i) any investigational
new drug application for a potential product of the Company is or has been rejected or
determined to be non-approvable or conditionally approvable; and (ii) any license, approval,
permit or authorization to conduct any clinical trial of any potential product of the
Company has been, will be or may be suspended, revoked, modified or limited. |
3.2
Representations and Warranties of the Purchasers. Each Purchaser, for itself and for no other Purchaser, hereby represents
and warrants as of the date hereof and as of the Closing Date to the Company as follows (unless as of a specific date therein,
in which case they shall be accurate as of such date):
| (a) | Organization;
Authority. Such Purchaser is either an individual or an entity duly incorporated or formed, validly existing and in good standing
under the laws of the jurisdiction of its incorporation or formation with full right, corporate, partnership limited liability
company or similar power and authority to enter into and to consummate the |
| | | transactions
contemplated by the Transaction Documents and otherwise to carry out its obligations
hereunder and thereunder. The execution and delivery of the Transaction Documents and
performance by such Purchaser of the transactions contemplated by the Transaction Documents
have been duly authorized by all necessary corporate, partnership, limited liability
company or similar action, as applicable, on the part of such Purchaser. Each Transaction
Document to which it is a party has been duly executed by such Purchaser, and when delivered
by such Purchaser in accordance with the terms hereof, will constitute the valid and
legally binding obligation of such Purchaser, enforceable against it in accordance with
its terms, except: (i) as limited by general equitable principles and applicable bankruptcy,
insolvency, reorganization, moratorium and other laws of general application affecting
enforcement of creditors’ rights generally, (ii) as limited by laws relating to
the availability of specific performance, injunctive relief or other equitable remedies
and (iii) insofar as indemnification and contribution provisions may be limited by applicable
law. |
| | | |
| (b) | Understandings
or Arrangements. Such Purchaser is acquiring the Securities as principal for its
own account and has no direct or indirect arrangement or understandings with any other
persons to distribute or regarding the distribution of such Securities (this representation
and warranty not limiting such Purchaser’s right to sell the Securities pursuant
to the Registration Statement or otherwise in compliance with applicable federal and
state securities laws). |
| (c) | Purchaser
Status. At the time such Purchaser was offered the Securities, it was, and as of
the date hereof it is, and on each date on which it exercises any Warrants, it will be
either (i) an “accredited investor” as defined in Rule 501(a)(1), (a)(2),
(a)(3), (a)(7) or (a)(8) under the Securities Act, or (ii) a “qualified institutional
buyer” as defined in Rule 144A(a) under the Securities Act. |
| (d) | Experience
of Such Purchaser. Such Purchaser, either alone or together with its representatives,
has such knowledge, sophistication and experience in business and financial matters so
as to be capable of evaluating the merits and risks of the prospective investment in
the Securities, and has so evaluated the merits and risks of such investment. Such Purchaser
is able to bear the economic risk of an investment in the Securities and, at the present
time, is able to afford a complete loss of such investment. |
| (e) | Access
to Information. Such Purchaser acknowledges that it has had the opportunity to review the Transaction Documents (including
all exhibits and schedules thereto) and the SEC Reports and has been afforded (i) the opportunity to ask such questions as it
has deemed necessary of, and to receive answers from, representatives of the Company concerning the terms and conditions of the
offering of the Securities and the merits and risks of investing in the Securities; (ii) access to information about the Company
and its financial condition, results of operations, business, properties, management and prospects sufficient to enable it to
evaluate its investment; and (iii) the opportunity to obtain such additional information that the Company possesses or can acquire
without unreasonable effort or expense that is necessary to make an informed investment decision with respect to the investment.
Such Purchaser acknowledges and agrees that neither the Placement Agent nor any Affiliate of the Placement Agent has provided
such Purchaser with any information or advice with respect to the Securities nor is such information or advice necessary or desired.
Neither the Placement Agent nor any Affiliate has made or makes any representation as to the Company or the quality of the Securities
and the Placement Agent and any Affiliate may have acquired non-public information with respect to the |
| | | Company
which such Purchaser agrees need not be provided to it. In connection with the issuance
of the Securities to such Purchaser, neither the Placement Agent nor any of its Affiliates
has acted as a financial advisor or fiduciary to such Purchaser. |
| | | |
| (f) | Certain
Transactions and Confidentiality. Other than consummating the transactions contemplated
hereunder, such Purchaser has not, nor has any Person acting on behalf of or pursuant
to any understanding with such Purchaser, directly or indirectly executed any purchases
or sales, including Short Sales, of the securities of the Company during the period commencing
as of the time that such Purchaser first received a term sheet (written or oral) from
the Company or any other Person representing the Company setting forth the material terms,
which terms include definitive pricing terms, of the transactions contemplated hereunder
and ending immediately prior to the execution hereof. Notwithstanding the foregoing,
in the case of a Purchaser that is a multi-managed investment vehicle whereby separate
portfolio managers manage separate portions of such Purchaser’s assets and the
portfolio managers have no direct knowledge of the investment decisions made by the portfolio
managers managing other portions of such Purchaser’s assets, the representation
set forth above shall only apply with respect to the portion of assets managed by the
portfolio manager that made the investment decision to purchase the Securities covered
by this Agreement. Other than to other Persons party to this Agreement or to such Purchaser’s
representatives, including, without limitation, its officers, directors, partners, legal
and other advisors, employees, agents and Affiliates, such Purchaser has maintained the
confidentiality of all disclosures made to it in connection with this transaction (including
the existence and terms of this transaction). Notwithstanding the foregoing, for the
avoidance of doubt, nothing contained herein shall constitute a representation or warranty,
or preclude any actions, with respect to locating or borrowing shares order to effect
Short Sales or similar transactions in the future. |
| (g) | No
Voting Agreements. The Purchaser is not a party to any agreement or arrangement,
whether written or oral, between the Purchaser and any other Purchaser and any of the
Company’s shareholders as of the date hereof, regulating the management of the
Company, the shareholders’ rights in the Company, the transfer of shares in the
Company, including any voting agreements, shareholder agreements or any other similar
agreement even if its title is different or has any other relations or agreements with
any of the Company’s shareholders, directors or officers. |
| (h) | Brokers.
Except as set forth on Schedule 3.2(h) or in the Prospectus or Prospectus Supplement,
no agent, broker, investment banker, person or firm acting in a similar capacity on behalf
of or under the authority of the Purchaser is or will be entitled to any broker’s
or finder’s fee or any other commission or similar fee, directly or indirectly,
for which the Company or any of its Affiliates after the Closing could have any liabilities
in connection with this Agreement, any of the transactions contemplated by this Agreement,
or on account of any action taken by the Purchaser in connection with the transactions
contemplated by this Agreement. |
| (i) | Independent
Advice. Each Purchaser understands that nothing in this Agreement or any other materials
presented by or on behalf of the Company to the Purchaser in connection with the purchase
of the Securities constitutes legal, tax or investment advice. |
The
Company acknowledges and agrees that the representations contained in this Section 3.2 shall not modify, amend or affect such
Purchaser’s right to rely on the Company’s representations and warranties contained in this Agreement or any representations
and warranties contained in any other Transaction
Document
or any other document or instrument executed and/or delivered in connection with this Agreement or the consummation of the transactions
contemplated hereby. Notwithstanding the foregoing, for the avoidance of doubt, nothing contained herein shall constitute a representation
or warranty, or preclude any actions, except as set forth in this Agreement, with respect to locating or borrowing shares in order
to effect Short Sales or similar transactions in the future.
ARTICLE
IV.
OTHER AGREEMENTS OF THE PARTIES
4.1
Legends. The shares of Common Stock and, if all or any portion of a Warrant is exercised at a time when there is an effective
registration statement to cover the issuance or resale of the Warrant Shares or if the Warrant is exercised via cashless exercise,
the Warrant Shares shall be issued free of legends. If at any time following the date hereof the Registration Statement is not
effective or is not otherwise available for the sale of the shares of Common Stock, the Warrants or the Warrant Shares, the Company
shall immediately notify the holders of the Warrants in writing that such registration statement is not then effective and thereafter
shall promptly notify such holders when the registration statement is effective again and available for the sale of the Shares,
the Warrants or the Warrant Shares (it being understood and agreed that the foregoing shall not limit the ability of the Company
to issue, or any Purchaser to sell, any of the Shares, the Warrants or the Warrant Shares in compliance with applicable federal
and state securities laws). The Company shall use commercially reasonable best efforts to keep a registration statement (including
the Registration Statement) registering the issuance of the Warrant Shares effective during the term of the Warrants.
4.2
Furnishing of Information; Public Information. Until the earliest of the time that (i) no Purchaser owns Securities, or
(ii) the Common Warrants have expired, the Company covenants to maintain the registration of the Common Stock under Section 12(b)
or 12(g) of the Exchange Act and to timely file (or obtain extensions in respect thereof and file within the applicable grace
period) all reports required to be filed by the Company after the date hereof pursuant to the Exchange Act.
4.3
Integration. The Company shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any
security (as defined in Section 2 of the Securities Act) that would be integrated with the offer or sale of the Securities for
purposes of the rules and regulations of any Trading Market such that it would require shareholder approval prior to the closing
of such other transaction unless shareholder approval is obtained before the closing of such subsequent transaction.
4.4
Securities Laws Disclosure; Publicity. The Company shall (a) by the Disclosure Time, issue a press release disclosing the
material terms of the transactions contemplated hereby, and (b) file a Current Report on Form 8-K, including the Transaction Documents
as exhibits thereto, with the Commission within the time required by the Exchange Act. From and after the issuance of such press
release, the Company represents to the Purchasers that it shall have publicly disclosed all material, non-public information delivered
to any of the Purchasers by the Company or any of its Subsidiaries or Affiliates, or any of their respective officers, directors,
employees or agents, including, without limitation, the Placement Agent, in connection with the transactions contemplated by the
Transaction Documents. In addition, effective upon the issuance of such press release, the Company acknowledges and agrees that
any and all confidentiality or similar obligations under any agreement, whether written or oral, between the Company, any of its
Subsidiaries or any of their respective officers, directors, agents, employees or Affiliates, including, without limitation, the
Placement Agent, on the one hand, and any of the Purchasers or any of their Affiliates on the other hand, with respect to the
transactions contemplated hereby shall terminate and be of no further force or effect. The Company and each Purchaser shall consult
with each other in issuing any other press releases with respect to the transactions contemplated hereby, and neither the Company
nor any Purchaser shall issue any such press release nor otherwise make any such public statement without the prior consent of
the
Company, with respect to any press release of any Purchaser, or without the prior consent of each Purchaser, with respect
to any press release of the Company, which consent shall not unreasonably be withheld or delayed, except if such disclosure is
required by law, in which case the disclosing party shall promptly provide the other party with prior notice of such public statement
or communication. Notwithstanding the foregoing, the Company shall not publicly disclose the name of any Purchaser, or include
the name of any Purchaser in any filing with the Commission or any regulatory agency or Trading Market, without the prior written
consent of such Purchaser, except (a) as required by federal securities law in connection with the filing of final Transaction
Documents with the Commission, and (b) to the extent such disclosure is required by law or Trading Market regulations, in which
case the Company shall provide the Purchasers with prior notice of such disclosure permitted under this clause (b).
4.5
Shareholder Rights Plan. No claim will be made or enforced by the Company or, with the consent of the Company, any other
Person, that any Purchaser is an “Acquiring Person” under any control share acquisition, business combination, poison
pill (including any distribution under a rights agreement) or similar anti-takeover plan or arrangement in effect or hereafter
adopted by the Company, or that any Purchaser could be deemed to trigger the provisions of any such plan or arrangement, by virtue
of receiving Securities under the Transaction Documents or under any other agreement between the Company and the Purchasers.
4.6
Non-Public Information. Except with respect to the material terms and conditions of the transactions
contemplated by the Transaction Documents, which shall be disclosed pursuant to Section 4.4, the Company covenants and agrees that neither
it, nor any other Person acting on its behalf will provide any Purchaser or its agents or counsel with any information that the Company
reasonably believes constitutes material non-public information, unless prior thereto such Purchaser shall have entered into a written
agreement with the Company regarding the confidentiality and use of such information. The Company understands and confirms that each Purchaser
shall be relying on the foregoing covenant in effecting transactions in securities of the Company. To the extent that the Company, any
of its Subsidiaries, or any of their respective officers, directors, agents, employees or Affiliates delivers any material, non-public
information to a Purchaser without such Purchaser’s consent, the Company hereby covenants and agrees that such Purchaser shall not
have any duty of confidentiality to the Company, any of its Subsidiaries, or any of their respective officers, directors, agents, employees
or Affiliates, or a duty to the Company, and of its Subsidiaries or any of their respective officers, directors, agents, employees or
Affiliates not to trade on the basis of, such material, non-public information, provided that the Purchaser shall remain subject to applicable
law. To the extent that any notice provided pursuant to any Transaction Document constitutes, or contains, material, non-public information
regarding the Company or any Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Current
Report on Form 8-K. The Company understands and confirms that each Purchaser shall be relying on the foregoing covenant in effecting transactions
in securities of the Company.
4.7
Use of Proceeds. The Company shall use the net proceeds from the sale of the Securities
hereunder for working capital purposes and general corporate procedures, the build out of the Company’s manufacturing and research
and development facilities, and the acquisition or licensing of approved products and products in development, and shall not use such
proceeds: (a) for the satisfaction of any portion of the Company’s debt (other than payment of trade payables in the ordinary course
of the Company’s business or repayment of obligations outstanding as of the date of this Agreement consistent with prior practices),
(b) for the redemption of any shares of Common Stock or Common Stock Equivalents; provided that the Company shall be permitted to repurchase
shares of its Common Stock pursuant to a stock buyback program, (c) for the settlement of any outstanding litigation or (d) in violation
of FCPA or OFAC regulations or similar applicable regulations.
4.8
Indemnification of Purchasers. Subject to the provisions of this Section 4.8, the Company will indemnify and hold each
Purchaser and its directors, officers, shareholders, members, partners, employees
and agents (and any other Persons with a functionally equivalent role of
a Person holding such titles notwithstanding a lack of such title or any other title), each Person who controls such Purchaser (within
the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, shareholders, agents,
members, partners or employees (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding
a lack of such title or any other title) of such controlling persons (each, a “Purchaser Party”) harmless from any
and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in
settlements, court costs and reasonable attorneys’ fees and costs of investigation that any such Purchaser Party may suffer or incur
as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in
this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser Party in any capacity (including
a Purchaser Party’s status as an investor), or any of them or their respective Affiliates, by the Company or any shareholder of
the Company who is not an Affiliate of such Purchaser Party, arising out of or relating to any of the transactions contemplated by the
Transaction Documents. For the avoidance of doubt, the indemnification provided herein is intended to, and shall also cover, direct claims
brought by the Company against any Purchaser Parties; provided, however, that such indemnification shall not cover any loss,
claim, damage or liability to the extent it is finally judicially determined to be attributable to any Purchaser Party’s breach
of any of the representations, warranties, covenants or agreements made by such Purchaser Party in any Transaction Document or any conduct
by a Purchaser Party which is finally judicially determined to constitute fraud, gross negligence or willful misconduct). If any action
shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party
shall promptly notify the Company in writing, and, except with respect to direct claims brought by the Company, the Company shall have
the right to assume the defense thereof with counsel of its own choosing reasonably acceptable to the Purchaser Party. Any Purchaser Party
shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically
authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ
counsel or (iii) in such action there is, in the reasonable opinion of counsel to the applicable Purchaser Party (which may be internal
counsel), a material conflict on any material issue between the position of the Company and the position of such Purchaser Party, in which
case the Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel. The Company will
not be liable to any Purchaser Party under this Agreement for any settlement by a Purchaser Party effected without the Company’s
prior written consent, which shall not be unreasonably withheld or delayed. In addition, if any Purchaser Party take action to collect
amounts due under any Transaction Documents or to enforce the provisions of any Transaction Documents, then the Company shall pay the
costs incurred by such Purchaser Party for such collection, enforcement or action, including, but not limited to, attorneys’ fees
and disbursements. The indemnification and other payment obligations required by this Section 4.8 shall be made by periodic payments of
the amount thereof during the course of the investigation, defense, collection, enforcement or action, as and when bills are received
or are incurred; provided, that if any Purchaser Party is finally judicially determined not to be entitled to indemnification or payment
under this Section 4.8, such Purchaser Party shall promptly reimburse the Company for any payments that are advanced under this sentence.
The indemnity agreements contained herein shall be in addition to any cause of action or similar right of any Purchaser Party against
the Company or others and any liabilities the Company may be subject to pursuant to law.
4.9
Listing of Common Stock. The Company hereby agrees to use commercially reasonable best efforts to maintain the listing
or quotation of the shares of Common Stock on each Trading Market on which each is currently listed, and concurrently with the
Closing, the Company shall apply to list or quote all of the Shares and Warrant Shares on such Trading Markets and promptly secure
the listing of all of the Shares and Warrant Shares on such Trading Markets. The Company further agrees, if the Company applies
to have the Common Stock traded on any other Trading Market, it will then include in such application all of the Shares and Warrant
Shares, and will take such other action as is necessary to cause all of the Shares and Warrant Shares to be listed or quoted on
such other Trading Market as promptly as possible. The Company will then take all action reasonably necessary to continue the
listing and trading of the Common Stock on a Trading Market and will comply in all material respects with the Company’s
reporting, filing and other obligations under the bylaws or rules of the Trading Market. The Company agrees to use commercially
reasonable efforts to maintain the eligibility of the electronic transfer through the Depository Trust Company or another
established clearing corporation, including,
without limitation, by timely payment of fees to the Depository Trust Company or such other established clearing corporation in
connection with such electronic transfer.
4.10
Subsequent Equity Sales.
| (a) | From the date hereof until ninety (90) days after the Closing Date, neither the Company nor any Subsidiary shall (i) issue, enter into any agreement to issue or announce the issuance or proposed issuance of any shares of Common Stock or Common Stock Equivalents or (ii) file any registration statement or amendment or supplement thereto, other than the Prospectus Supplement or filing a registration statement on Form S-8 in connection with any employee benefit plan.
|
| (b) | From the date hereof until one hundred and eighty (180) days after the Closing Date, 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 shares
of Common Stock or Common Stock Equivalents (or a combination of units thereof) involving a Variable Rate Transaction. “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 either (A) at a conversion price,
exercise price or exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for the shares
of Common Stock at any time after the initial issuance of such debt or equity securities, 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 shares of Common
Stock, or (ii) enters into, or effects a transaction under, any agreement, including, but not limited to, an equity line of credit or
an “at-the-market offering”, whereby the Company may issue securities at a future determined price regardless of whether shares
pursuant to such agreement have actually been issued and regardless of whether such agreement is subsequently cancelled; provided, however,
that after ninety (90) days after the Closing Date, the entry into and/or issuance of shares of Common Stock in an “at-the-market”
offering with the Placement Agent as sales agent shall not be deemed a Variable Rate Transaction. Any Purchaser shall be entitled to obtain
injunctive relief against the Company to preclude any such issuance, which remedy shall be in addition to any right to collect damages. |
| (c) | Notwithstanding
the foregoing, this Section 4.10 shall not apply in respect of an Exempt Issuance, except
that no Variable Rate Transaction shall be an Exempt Issuance. |
4.11
Equal Treatment of Purchasers. No consideration (including any modification of the Transaction Documents) shall be offered
or paid to any Person to amend or consent to a waiver or modification of any provision of the Transaction Documents unless the
same consideration is also offered to all of the parties to the Transaction Documents. For clarification purposes, this provision
constitutes a separate right granted to each Purchaser by the Company and negotiated separately by each Purchaser, and is intended
for the Company to treat the Purchasers as a class and shall not in any way be construed as the Purchasers acting in concert or
as a group with respect to the purchase, disposition or voting of the shares of Common Stock or otherwise.
4.12
Certain Transactions and Confidentiality. Each Purchaser, severally and not jointly with the other Purchasers, covenants
that neither it nor any Affiliate acting on its behalf or pursuant to any understanding with it will execute any purchases or
sales, including Short Sales of any of the Company’s securities during
the period commencing with the execution of this Agreement and ending at
such time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release as described
in Section 4.4. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions
contemplated by this Agreement are publicly disclosed by the Company pursuant to the initial press release as described in Section 4.4,
such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Disclosure
Schedules. Notwithstanding the foregoing, and notwithstanding anything contained in this Agreement to the contrary, the Company expressly
acknowledges and agrees that (i) no Purchaser makes any representation, warranty or covenant hereby that it will not engage in effecting
transactions in any securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced
pursuant to the initial press release as described in Section 4.4, (ii) no Purchaser shall be restricted or prohibited from effecting
any transactions in any securities of the Company in accordance with applicable securities laws from and after the time that the transactions
contemplated by this Agreement are first publicly announced pursuant to the initial press release as described in Section 4.4 and (iii)
no Purchaser shall have any duty of confidentiality or duty not to trade in the securities of the Company to the Company, any of its Subsidiaries,
or any of their respective officers, directors, employees, Affiliates or agents after the issuance of the initial press release as described
in Section 4.4. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate
portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the
investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant set forth above
shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase
the Securities covered by this Agreement.
4.13
Exercise Procedures. The form of Notice of Exercise included in the Warrants set forth the totality of the procedures required
of the Purchasers in order to exercise the Warrants. No additional legal opinion, other information or instructions shall be required
of the Purchasers to exercise their Warrants. Without limiting the preceding sentences, no ink-original Notice of Exercise shall
be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise form be
required in order to exercise the Warrants. The Company shall honor exercises of the Warrants and shall deliver Warrant Shares
in accordance with the terms, conditions and time periods set forth in the Transaction Documents.
4.14 Reservations of Shares. As of the date
hereof, the Company has reserved and the Company shall continue to reserve and keep available at all times, free of preemptive rights,
a sufficient number of shares of Common Stock for the purpose of enabling the Company to issue shares of Common Stock pursuant to this
Agreement and the Pre-Funded Warrants, and, from and after the Common Stock Increase Effective Date, the Warrant Shares pursuant to any
exercise of the Common Warrants.
4.15 Lock-Up Agreements. The Company shall
not amend, modify, waive or terminate any provision of any of the Lock-Up Agreements (or any substantially similar lock-up agreements
signed by transferees of the initial parties to the Lock-Up Agreements) except to extend the term of the lock-up period and shall enforce
the provisions of each Lock-Up Agreement (or any substantially similar lock-up agreements signed by transferees of the initial parties
to the Lock-Up Agreements) in accordance with its terms. If any party to a Lock-Up Agreement (or any substantially similar lock-up agreements
signed by transferees of the initial parties to the Lock-Up Agreements) breaches any provision of such agreement, the Company shall promptly
use its best efforts to seek specific performance of the terms of such agreement.
4.16 Agreement to Vote. Each Purchaser, solely
in its capacity as a stockholder of the Company, agrees to use commercially reasonable efforts to vote (or cause to be voted) all of the
shares of Common Stock that it either owns or that it has or shares discretion to vote as of the Record Date, at the Meeting or any adjournment
thereof, and/or in any action by written consent of the stockholders of the Company, in favor of (i) the Authorized Common Stock Increase
Proposal and (ii) any other matter specifically relating to the Authorized Common Stock Increase Proposal. Each Purchaser hereby agrees
not to grant any proxy with respect to such shares of Common Stock or to enter into or agree to be bound by any voting trust or agreement
or other arrangement of any kind that is inconsistent with the provisions of this Agreement. Each Purchaser agrees not to revoke any such
vote or change any vote once voted in favor of the Authorized Common Stock Increase Proposal.
4.17 Stockholder Approval. Promptly following
the Closing Date, the Company shall file with the Commission one or more definitive proxy statements, at the expense of the Company, for
one or more Meetings (which such initial Meetings shall be called not later than 60 days following the Closing Date), soliciting stockholder
approval at such Meetings for the Authorized Common Stock Increase Proposal and the Warrant Proposal (collectively, such affirmative approval
being referred to herein collectively as the "Stockholder Approval" and the date such Stockholder Approval is obtained,
the "Stockholder Approval Date"). The Company shall use its reasonable best efforts to obtain all components of the Stockholder
Approval. If the Company does not obtain all components of the Stockholder Approval at Meetings prior to the 60th day following
the Closing Date, the Company shall call additional Meetings four months thereafter to seek any remaining components of the Stockholder
Approval. If the Company does not obtain all components of the Stockholder Approval at such additional Meetings, the Company shall call
a Meeting every sixty (60) days thereafter to seek any remaining components of the Stockholder Approval using printed proxy materials
until the earlier of the date that all components of the Stockholder Approval are obtained or consent of the Board of Directors in lieu
thereof is obtained that satisfied Nasdaq Listing Rule 5635. Upon receipt of the Stockholder Approval with respect to the Authorized Common
Stock Increase Proposal, the Company shall cause the amendment to the Company’s Articles of Incorporation, as amended, approved
thereby (the “Common Stock Increase Amendment”) to be filed with the Nevada Secretary of State on the date of such
Stockholder Approval or as soon as practicable thereafter (the effective date of such amendment, the “Common Stock Increase Effective
Date”).
ARTICLE
V.
MISCELLANEOUS
5.1
Termination. This Agreement may be terminated by any Purchaser, as to such Purchaser’s obligations hereunder only
and without any effect whatsoever on the obligations between the Company and the other Purchasers, by written notice to the other
parties, if the Closing has not been consummated on or before the fifth (5th) Trading Day following the date hereof; provided,
however, that no such termination will affect the right of any party to sue for any breach by any other party (or parties).
5.2
Fees and Expenses. Except as expressly set forth in the Transaction Documents to the contrary, each party shall pay the
fees and expenses of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party
incident to the negotiation, preparation, execution, delivery and performance of this Agreement. The Company shall pay all Transfer
Agent fees (including, without limitation, any fees required for same-day processing of any instruction letter delivered by the
Company and any exercise notice delivered by a Purchaser), stamp taxes and other taxes and duties levied in connection with the
delivery of any Securities to the Purchasers.
5.3
Entire Agreement. The Transaction Documents, together with the exhibits and schedules thereto, the Prospectus and the Prospectus
Supplement, contain the entire understanding of the parties with respect to the subject matter hereof and thereof and supersede
all prior agreements and understandings, oral or written, with respect to such matters, which the parties acknowledge have been
merged into such documents, exhibits and schedules.
5.4
Notices. Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall
be in writing and shall be deemed given and effective on the earliest of: (a) the time of transmission, if such notice or communication
is delivered via facsimile at the facsimile number or email attachment at the email address as set forth on the signature pages
attached hereto at or prior to 5:30 p.m. (New York City time) on a Trading Day, (b) the next Trading Day after the time of transmission,
if such notice or communication is delivered via facsimile at the facsimile number or email attachment at the email address as
set forth on the signature pages attached hereto on a day that is not a Trading Day or later than 5:30 p.m. (New York City time)
on any Trading Day, (c) the second (2nd) Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight
courier service or (d) upon actual receipt by the party to whom such notice is required to be given. The address for such notices
and communications shall be as set forth on the signature pages attached hereto. To the extent that any notice provided pursuant
to any Transaction Document constitutes, or contains, material, non-public information regarding the Company or any Subsidiaries,
the Company shall simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K.
5.5 Amendments; Waivers. No provision of this
Agreement may be waived, modified, supplemented or amended except in a written instrument signed, in the case of an amendment, by the
Company and the Purchasers who purchased at least 50.1% in interest of the sum of (i) the Shares and (ii) the Pre-Funded Warrant Shares
initially issuable upon exercise of the Pre-Funded Warrants based on the initial Subscription Amounts hereunder (or, if prior to Closing,
the Company and each Purchaser), or, in the case of a waiver, by the party against whom enforcement of any such waived provision is sought;
provided, that if any amendment, modification or waiver disproportionately and adversely impacts a Purchaser (or group of Purchasers),
the consent of such disproportionately impacted Purchaser (or at least 50.1% in interest of such disproportionately impacted Purchasers)
shall also be required. No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed
to be a continuing waiver in the future or a
waiver
of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission
of any party to exercise any right hereunder in any manner impair the exercise of any such right. Any proposed amendment or waiver
that disproportionately, materially and adversely affects the rights and obligations of any Purchaser relative to the comparable
rights and obligations of the other Purchasers shall require the prior written consent of such adversely affected Purchaser. Any
amendment effected in accordance with this Section 5.5 shall be binding upon each Purchaser and holder of Securities and the Company.
5.6
Headings. The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed
to limit or affect any of the provisions hereof.
5.7
Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors
and permitted assigns. The Company may not assign this Agreement or any rights or obligations hereunder without the prior written
consent of each Purchaser (other than by merger). Any Purchaser may assign any or all of its rights under this Agreement to any
Person to whom such Purchaser assigns or transfers any Securities, provided that such transferee agrees in writing to be bound,
with respect to the transferred Securities, by the provisions of the Transaction Documents that apply to the “Purchasers.”
5.8
No Third-Party Beneficiaries. The Placement Agent shall be third-party beneficiary of the representations and warranties
of the Company in Section 3.1 and the representations and warranties of the Purchasers in Section 3.2. This Agreement is intended
for the benefit of the parties hereto and their respective successors and permitted assigns and is not for the benefit of, nor
may any provision hereof be enforced by, any other Person, except as otherwise set forth in Section 4.8 and this Section 5.8.
5.9
Governing Law. All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents
shall be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard
to the principles of conflicts of law thereof. Each party agrees that all legal proceedings concerning the interpretations, enforcement
and defense of the transactions contemplated by this Agreement and any other Transaction Documents (whether brought against a
party hereto or its respective affiliates, directors, officers, shareholders, partners, members, employees or agents) shall be
commenced exclusively in the state and federal courts sitting in the City of New York. Each party hereby irrevocably submits to
the exclusive jurisdiction of the state and federal courts sitting in the City of New York, Borough of Manhattan for the adjudication
of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein (including
with respect to the enforcement of any of the Transaction Documents), and hereby irrevocably waives, and agrees not to assert
in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such
suit, action or proceeding is improper or is an inconvenient venue for such proceeding. Each party hereby irrevocably waives personal
service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof via registered
or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under
this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law. If either
party shall commence an action, suit or proceeding to enforce any provisions of the Transaction Documents, then, in addition to
the obligations of the Company under Section 4.8, the prevailing party in such action, suit or proceeding shall be reimbursed
by the other party for its reasonable attorneys’ fees and other costs and expenses incurred with the investigation, preparation
and prosecution of such action or proceeding.
5.10
Survival. The representations and warranties contained herein shall survive the Closing and the delivery of the Securities
for the applicable statute of limitations.
5.11
Execution. This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered
one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to each other
party, it being understood that the parties need not sign the same counterpart. In the event that any signature is delivered by
facsimile transmission or by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if
such facsimile or “.pdf” signature page was an original thereof.
5.12
Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction
to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use
their commercially reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result
as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention
of the parties that they would have executed the remaining terms, provisions, covenants and restrictions without including any
of such that may be hereafter declared invalid, illegal, void or unenforceable.
5.13
Rescission and Withdrawal Right. Notwithstanding anything to the contrary contained in (and without limiting any similar
provisions of) any of the other Transaction Documents, whenever any Purchaser exercises a right, election, demand or option under
a Transaction Document and the Company does not timely perform its related obligations within the periods therein provided, then
such Purchaser may rescind or withdraw, in its sole discretion from time to time upon written notice to the Company, any relevant
notice, demand or election in whole or in part without prejudice to its future actions and rights; provided, however, that, in
the case of a rescission of an exercise of a Warrant, the applicable Purchaser shall be required to return any shares of Common
Stock subject to any such rescinded exercise notice concurrently with the return to such Purchaser of the aggregate exercise price
paid to the Company for such shares and the restoration of such Purchaser’s right to acquire such shares pursuant to such
Purchaser’s Warrant (including, issuance of a replacement warrant certificate evidencing such restored right).
5.14
Replacement of Securities. If any certificate or instrument evidencing any Securities is mutilated, lost, stolen or destroyed,
the Company shall issue or cause to be issued in exchange and substitution for and upon cancellation thereof (in the case of mutilation),
or in lieu of and substitution therefor, a new certificate or instrument, but only upon receipt of evidence reasonably satisfactory
to the Company of such loss, theft or destruction. The applicant for a new certificate or instrument under such circumstances
shall also pay any reasonable third-party costs (including customary indemnity) associated with the issuance of such replacement
Securities.
5.15
Remedies. In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of
damages, each of the Purchasers and the Company will be entitled to specific performance under the Transaction Documents. The
parties agree that monetary damages may not be adequate compensation for any loss incurred by reason of any breach of obligations
contained in the Transaction Documents and hereby agree to waive and not to assert in any action for specific performance of any
such obligation the defense that a remedy at law would be adequate.
5.16
Payment Set Aside. To the extent that the Company makes a payment or payments to any Purchaser pursuant to any Transaction
Document or a Purchaser enforces or exercises its rights thereunder, and such payment or payments or the proceeds of such enforcement
or exercise or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside, recovered
from, disgorged by or are required to be refunded, repaid or otherwise restored to the Company, a trustee, receiver or any other
Person under any law (including, without limitation, any bankruptcy law, state or federal law, common law or equitable
cause of
action), then to the extent of any such restoration the obligation or part thereof originally intended to be satisfied shall be
revived and continued in full force and effect as if such payment had not been made or such enforcement or setoff had not occurred.
5.17
Independent Nature of Purchasers’ Obligations and Rights. The obligations of each Purchaser under any Transaction
Document are several and not joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way
for the performance or non-performance of the obligations of any other Purchaser under any Transaction Document. Nothing contained
herein or in any other Transaction Document, and no action taken by any Purchaser pursuant hereto or thereto, shall be deemed
to constitute the Purchasers as a partnership, an association, a joint venture or any other kind of entity, or create a presumption
that the Purchasers are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated
by the Transaction Documents. Each Purchaser shall be entitled to independently protect and enforce its rights including, without
limitation, the rights arising out of this Agreement or out of the other Transaction Documents, and it shall not be necessary
for any other Purchaser to be joined as an additional party in any proceeding for such purpose. Each Purchaser has been represented
by its own separate legal counsel in its review and negotiation of the Transaction Documents. For reasons of administrative convenience
only, each Purchaser and its respective counsel have chosen to communicate with the Company through Placement Agent Counsel. Placement
Agent Counsel does not represent any of the Purchasers and only represents the Placement Agent. The Company has elected to provide
all Purchasers with the same terms and Transaction Documents for the convenience of the Company and not because it was required
or requested to do so by any of the Purchasers. It is expressly understood and agreed that each provision contained in this Agreement
and in each other Transaction Document is between the Company and a Purchaser, solely, and not between the Company and the Purchasers
collectively and not between and among the Purchasers.
5.18
Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right
required or granted herein shall not be a Business Day, then such action may be taken or such right may be exercised on the next
succeeding Business Day.
5.19
Liquidated Damages. The Company’s obligations to pay any partial liquidated damages or other amounts owing under
the Transaction Documents is a continuing obligation of the Company and shall not terminate until all unpaid partial liquidated
damages and other amounts have been paid notwithstanding the fact that the instrument or security pursuant to which such partial
liquidated damages or other amounts are due and payable shall have been canceled.
5.20
Construction. The parties agree that each of them and/or their respective counsel have reviewed and had an opportunity
to revise the Transaction Documents and, therefore, the normal rule of construction to the effect that any ambiguities are to
be resolved against the drafting party shall not be employed in the interpretation of the Transaction Documents or any amendments
thereto. In addition, each and every reference to share prices and shares of Common Stock in any Transaction Document shall be
subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions
relating to shares of Common Stock that occur after the date of this Agreement.
5.21
WAIVER OF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY,
THE PARTIES EACH KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY,
IRREVOCABLY AND EXPRESSLY WAIVES FOREVER TRIAL BY JURY.
(Signature
Pages Follow)
IN
WITNESS WHEREOF, the parties hereto have caused this Securities Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
| TONIX
PHARMACEUTICALS HOLDING CORP. |
|
Address
for Notice: |
| |
|
|
By: |
_____________________________
|
|
|
| Name:
|
|
|
Email: |
| Title: |
|
|
Fax: |
|
|
|
| With
a copy to (which shall not constitute notice): |
|
|
| |
|
|
| |
|
Email: |
| Attention: |
|
Fax: |
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE FOR PURCHASER FOLLOWS]
[PURCHASER
SIGNATURE PAGES TO SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
Name
of Purchaser: _____________________________________________________
Signature
of Authorized Signatory of Purchaser: ______________________________
Name
of Authorized Signatory: _____________________________________________
Title
of Authorized Signatory: ______________________________________________
Email
Address of Authorized Signatory: _______________________________________
Facsimile
Number of Authorized Signatory: ____________________________________
Address
for Notice to Purchaser:
Address
for Delivery of Warrant Shares to the Purchaser (if not same address for notice):
DWAC
for Common Stock:
Subscription
Amount: $___________________
Shares
of Common Stock: ___________________
Shares
of Common Stock underlying the Pre-Funded Warrants: ________
Beneficial
Ownership Blocker ☐ 4.99% or ☐ 9.99%
Warrant
Shares underlying the Common Warrants: ________
Beneficial
Ownership Blocker ☐ 4.99% or ☐ 9.99%
EIN
Number: ___________________
☐
Notwithstanding anything contained in this Agreement to the contrary, by
checking this box (i) the obligations of the above-signed to purchase the securities set forth in this Agreement to be purchased from
the Company by the above-signed, and the obligations of the Company to sell such securities to the above-signed, shall be unconditional
and all conditions to Closing shall be disregarded, (ii) the Closing shall occur on the second (2nd) Trading Day following the date of
this Agreement and (iii) any condition to Closing contemplated by this Agreement (but prior to being disregarded by clause (i) above)
that required delivery by the Company or the above-signed of any agreement, instrument, certificate or the like or purchase price (as
applicable) shall no longer be a condition and shall instead be an unconditional obligation of the Company or the above-signed (as applicable)
to deliver such agreement, instrument, certificate or the like or purchase price (as applicable) to such other party on the Closing Date.
[SIGNATURE
PAGES CONTINUE]
Exhibit
A
Form of Common Warrant
(See
Attached)
Exhibit
B
Form of Pre-Funded Warrant
(See
Attached)
Exhibit
C
Form of Lock-Up Agreement
(See
Attached)
