Adamis Pharmaceuticals Corporation 8-K
Exhibit
10.1
SECURITIES
PURCHASE AGREEMENT
This
Securities Purchase Agreement (this “Agreement”) is dated as of March 14, 2023, between Adamis Pharmaceuticals
Corporation, a Delaware corporation (the “Company”), and the purchaser identified on the signature pages hereto
(including its successors and assigns, the “Purchaser”).
WHEREAS,
subject to the terms and conditions set forth in this Agreement and pursuant to the Registration Statement, the Company desires
to issue and sell to the Purchaser, and the Purchaser 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 the 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:
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common
control with a Person as such terms are used in and construed under Rule 405 under the Securities Act.
“Board
of Directors” means the board of directors of the Company.
“Business
Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized
or required by law to remain closed; provided, however, for clarification, commercial banks shall not be deemed
to be authorized or required by law to remain closed due to “stay at home”, “shelter-in-place”, “non-essential
employee” or any other similar orders or restrictions or the closure of any physical branch locations at the direction
of any governmental authority so long as the electronic funds transfer systems (including for wire transfers) of commercial banks
in The City of New York are generally open for use by customers on such day.
“Closing”
means the closing of the purchase of the Shares and the Warrants by the Purchaser.
“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 Purchaser’s obligation to pay the Subscription Amount and (ii)
the Company’s obligation to deliver the Shares and the Warrants, in each case, 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 the common stock of the Company, par value $0.0001 per share, and any other class of securities into which
such securities may hereafter be reclassified or changed.
“Common
Stock Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to
acquire at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument
that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive,
Common Stock.
“Common
Stock Warrants” means, collectively, the Common Stock purchase warrants delivered to the Purchaser at the Closing in
accordance with Section 2.2(a) hereof, which Common Stock Warrants shall be exercisable at any time or times on or after the six
month and one day anniversary of the Issuance Date (as defined in the Common Stock Warrants) and have a term of exercise equal
to five (5) years and six (6) months, in the form of Exhibit A attached hereto.
“Company
Counsel” means Xxxxxx & Xxxxxxx LLP, with offices located at 00000 Xxxx Xxxxx Xx., Xxx Xxxxx, Xxxxxxxxxx 00000.
“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, 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.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exempt
Issuance” means the issuance of (a) shares of Common Stock or equity awards to employees, officers or directors of the
Company pursuant to any inducement award or stock or option plan duly adopted for such purpose, by a majority of the non-employee
members of the Board of Directors or a majority of the members of a committee of non-employee directors established for such purpose
for services rendered to the Company, (b) securities upon the exercise or exchange of or conversion of any Securities issued hereunder,
and/or other securities exercisable or exchangeable for or convertible into shares of Common Stock issued and outstanding on the
date of this Agreement, 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 (other than in connection
with stock splits or combinations) or to extend the term of such securities, and (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 4.11(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.
“FCPA”
means the Foreign Corrupt Practices Act of 1977, as amended.
“Liens”
means a lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.
“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.
“Prefunded
Warrants” means, collectively, the prefunded Common Stock purchase warrants delivered to the Purchaser at the Closing
in accordance with Section 2.2(a) hereof, which Prefunded Warrants shall be immediately exercisable and have a term of exercise
equal to five (5) years, 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 base prospectus filed with the Registration Statement, including all information, documents and exhibits filed with
or incorporated by reference into such prospectus.
“Prospectus
Supplement” means the supplement to the Prospectus complying with Rule 424(b) of the Securities Act that is filed with
the Commission and delivered by the Company to the Purchaser at the Closing.
“Registration
Statement” means the currently effective registration statement on Form S-3 (Registration Number 333-267365).
“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.
“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.
“Shares”
means the shares of Common Stock (excluding the Warrant Shares) issued or issuable to the 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 $2,999,250.
“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 Common Stock is 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 Voting Agreements, all exhibits and schedules thereto and hereto
and any other documents or agreements executed in connection with the transactions contemplated hereunder.
“Transfer
Agent” means American Stock Transfer & Trust Company, the current transfer agent of the Company, with a mailing
address of 0000 Xxxxx 00xx Xxx., Xxxxxxxx, Xxx Xxxx 00000 and an email address of xxxxx00@xxxxxxxxxxxx.xxx, and any
successor transfer agent of the Company.
“Voting
Agreements” means the voting agreements delivered to the Company at the Closing in accordance with Section 2.2(b) hereof.
“Warrants”
means, collectively, the Common Stock Warrants and the Prefunded 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, the Company agrees to sell,
and the Purchaser agrees to purchase, (i) an aggregate of 16,500,000 Shares, (ii) Common Stock Warrants to acquire an aggregate
of 48,000,000 Warrant Shares and (iii) Prefunded Warrants to acquire an aggregate of 7,500,000 Warrant Shares. The Purchaser’s
Subscription Amount shall be made available for “Delivery Versus Payment” settlement with the Company or its designee.
The Company shall deliver to the Purchaser its Shares and Warrants, and the Company and the Purchaser shall deliver the other
items set forth in Section 2.2 deliverable at the Closing. Upon satisfaction of the covenants and conditions set forth in Sections
2.2 and 2.3, the Closing shall occur at such location as the parties shall mutually agree or take place remotely by electronic
transfer of the Closing documentation. Settlement of the Shares shall occur via “Delivery Versus Payment” (“DVP”)
(i.e., on the Closing Date, the Company shall issue the Shares registered in the Purchaser’s name and address and released
by the Transfer Agent directly to the account(s) identified by the Purchaser; upon receipt of such Shares, the Transfer Agent
shall promptly electronically deliver such Shares to the Purchaser, and payment therefor shall be made by the Purchaser (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 the Purchaser, through, and including the time immediately prior to the
Closing (the “Pre-Settlement Period”), the Purchaser sells to any Person all, or any portion, of the Shares
to be issued hereunder to the Purchaser at the Closing (collectively, the “Pre-Settlement Shares”), the Purchaser
shall, automatically hereunder (without any additional required actions by the Purchaser or the Company), be deemed to be unconditionally
bound to purchase, such Pre-Settlement Shares from the Company at the Closing; provided, that the Company shall not be required
to deliver any Pre-Settlement Shares to the Purchaser prior to the Company’s receipt of the purchase price of such Pre-Settlement
Shares hereunder; and provided further that the Company hereby acknowledges and agrees that the forgoing shall not constitute
a representation or covenant by the Purchaser as to whether or not during the Pre-Settlement Period the Purchaser shall sell any
shares of Common Stock to any Person and that any such decision to sell any shares of Common Stock by the Purchaser shall solely
be made at the time the Purchaser elects to effect any such sale, if any. Notwithstanding anything to the contrary herein, the
number of Shares purchased by the Purchaser (and its Affiliates) hereunder shall not, when aggregated with all other shares of
Common Stock owned by the Purchaser (and its Affiliates) at such time, result in the Purchaser beneficially owning (as determined
in accordance with Section 13(d) of the Exchange Act) in excess of 9.99% of the then issued and outstanding Common Stock outstanding
at the Closing (the “Beneficial Ownership Maximum”). To the extent that a Purchaser’s beneficial ownership
of the Shares would otherwise be deemed to exceed the Beneficial Ownership Maximum, the Purchaser’s Subscription Amount
shall automatically be reduced as necessary in order to comply with this paragraph.
2.2 Deliveries.
(a) On or prior to the Closing Date (except as indicated below), the Company shall deliver or cause to be delivered to the Purchaser
the following:
(i) this Agreement duly executed by the Company;
(ii) a legal opinion of Company Counsel, substantially in the form of Exhibit C attached hereto;
(iii) subject to the last sentence of Section 2.1, the Company shall have provided the Purchaser with the Company’s wire instructions;
(iv) subject to the last sentence of Section 2.1, a copy of the irrevocable instructions to the Transfer Agent instructing the Transfer
Agent to deliver 16,500,000 Shares on an expedited basis via The Depository Trust Company Deposit or Withdrawal at Custodian system
(“DWAC”), registered in the name of the Purchaser;
(v) a Common Stock Warrant registered in the name of the Purchaser to purchase up to 48,000,000 shares of Common Stock, with an exercise
price per share equal to $0.138, subject to adjustment as set forth therein;
(vi) a Prefunded Warrant registered in the name of the Purchaser to purchase up to 7,500,000 shares of Common Stock, with an exercise
price per share equal to $0.125 (with $0.1249 per share pre-funded to the Company pursuant to this Agreement and the remaining
$0.0001 per share due upon exercise), subject to adjustment as set forth therein; and
(vii) the Prospectus and Prospectus Supplement (which may be delivered in accordance with Rule 172 under the Securities Act).
(b) On or prior to the Closing Date, the Purchaser shall deliver or cause to be delivered to the Company, the following:
(i) this Agreement duly executed by the Purchaser;
(ii) the Voting Agreement duly executed by the Purchaser; and
(iii) the Subscription Amount, which shall be made available for DVP settlement with the Company or its designee.
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, in all respects)
on the Closing Date of the representations and warranties of the Purchaser contained herein (unless as of a specific date therein
in which case they shall be accurate in all material respects (or, to the extent representations or warranties are qualified by
materiality, in all respects) as of such date);
(ii) all obligations, covenants and agreements of the Purchaser required to be performed at or prior to the Closing Date shall have
been performed; and
(iii) the delivery by the Purchaser of the items set forth in Section 2.2(b) of this Agreement.
(b) The obligations of the Purchaser 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 in all material respects or, to the extent representations
or warranties are qualified by materiality or Material Adverse Effect, in all respects) 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; and
(v) from the date hereof to the Closing Date, trading in the Common Stock shall not have been suspended by the Commission or the Company’s
principal 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 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 the 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. The Company represents and warrants to the Purchaser that, as of the date hereof and as of
the Closing Date, except as otherwise disclosed in the SEC Documents:
(a) Organization and Qualification. Each of the Company and each of its Subsidiaries are entities duly organized and validly
existing and in good standing under the laws of the jurisdiction in which they are formed, and have the requisite power and authority
to own their respective properties and to carry on their respective business as now being conducted and as presently proposed
to be conducted. Each of the Company and each of its Subsidiaries is duly qualified as a foreign entity to do business and is
in good standing in every jurisdiction in which its ownership of property or the nature of the business conducted by it makes
such qualification necessary, except to the extent that the failure to be so qualified or be in good standing would not reasonably
be expected to have a Material Adverse Effect. As used in this Agreement, “Material Adverse Effect” means any
material adverse effect on (i) the business, properties, assets, liabilities, operations (including results thereof), condition
(financial or otherwise) or prospects of the Company and its Subsidiaries, taken as a whole, (ii) the transactions contemplated
hereby or in any of the other Transaction Documents or any other agreements or instruments to be entered into in connection herewith
or therewith or (iii) the authority or ability of the Company or any of its Subsidiaries to perform any of their respective obligations
under any of the Transaction Documents. Other than as disclosed in the SEC Documents, the Company has no Subsidiaries. “Subsidiaries”
means any Person in which the Company, directly or indirectly, (i) owns any of the outstanding capital stock or holds any equity
or similar interest of such Person and (ii) controls or operates all or any part of the business, operations or administration
of such Person, and each of the foregoing, is individually referred to herein as a “Subsidiary.”
(b) Authorization;
Enforcement; Xxxxxxxx. The Company has the requisite power and authority to enter into and perform its obligations under this
Agreement and the other Transaction Documents and to issue the Securities in accordance with the terms hereof and thereof. The
execution and delivery of this Agreement and the other Transaction Documents by the Company, and the consummation by the Company
of the transactions contemplated hereby and thereby (including, without limitation, the issuance of the Warrants and the reservation
for issuance and issuance of the Warrant Shares issuable upon exercise of the Warrants, in each case, in accordance with the terms
thereof) have been duly authorized by the Board of Directors or other governing body, as applicable, and (other than (i) the filing
with the Commission of (A) a Form 8-K describing all the material terms of the transactions contemplated by the Transaction Documents,
(B) the Prospectus Supplement supplementing the Prospectus, and (C) preliminary and definitive proxy materials for the solicitation
of proxies with respect to the Company’s stockholders’ affirmative vote for the approval of resolutions providing
for a reverse stock split of the Common Stock (the “Stockholder Approval”), (ii) the Stockholder Approval,
(iii) the filing of a supplemental listing application with Nasdaq, and (iv) any other filings as may be required by any state
securities agencies (collectively, the “Required Approvals”)) no further filing, consent or authorization is
required by the Company, its Subsidiaries, their respective boards of directors or their stockholders or other governing body.
This Agreement has been, and the other Transaction Documents to which it is a party will be prior to the Closing, duly executed
and delivered by the Company, and each constitutes the legal, valid and binding obligations of the Company, enforceable against
the Company in accordance with its respective terms, except as such enforceability may be limited by general principles of equity
or applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws relating to, or affecting generally,
the enforcement of applicable creditors’ rights and remedies and except as rights to indemnification and to contribution
may be limited by federal or state securities law.
(d) Issuance of Securities; Registration Statement.
(i) The issuance of the Shares and the Warrants are duly authorized and upon issuance in accordance with the terms of the Transaction
Documents shall be validly issued, fully paid and non-assessable and free from all Liens with respect to the issuance thereof.
Upon exercise of the Warrants in accordance with the terms thereof (as the case may be), the Warrant Shares, when issued, will
be validly issued, fully paid and nonassessable and free from all preemptive or similar rights or Liens with respect to the issue
thereof, with the holders being entitled to all rights accorded to a holder of Common Stock.
(ii) The issuance by the Company of the Securities has been registered under the Securities Act, the Securities are being issued pursuant
to the Registration Statement and all of the Securities, upon issuance, will be freely transferable and freely tradable by the
Purchaser without restriction imposed by the Company, whether by way of registration or some exemption therefrom. The Registration
Statement is effective and available for the issuance of the Securities thereunder and the Company has not received any notice
that the Commission has issued or intends to issue a stop-order with respect to the Registration Statement or that the Commission
otherwise has suspended or withdrawn the effectiveness of the Registration Statement, either temporarily or permanently, or intends
or has threatened in writing to do so. The “Plan of Distribution” section under the Registration Statement (including
the Prospectus Supplement) permits the issuance and sale of the Securities hereunder and as contemplated by the other Transaction
Documents. Upon receipt of the Securities, the Purchaser will have acquired ownership of the Securities free of any adverse claim
imposed by the Company. The Registration Statement and any prospectus included therein, including the Prospectus and the Prospectus
Supplement, complied in all material respects with the requirements of the Securities Act, and the documents incorporated by reference
into the Registration Statement when filed, complied in all material respects with the requirements of the Exchange Act and, in
each case, with the rules and regulations of the Commission promulgated under the Securities Act or the Exchange Act, as the case
may be. At the time the Registration Statement and any amendments thereto became effective, the Registration Statement and any
amendments thereto complied and, upon the filing of the Prospectus Supplement after the date of this Agreement the Registration
Statement will comply in all material respects with the requirements of the Securities Act and did not and will not contain any
untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the
statements therein not misleading. The Prospectus and any amendments or supplements thereto, at the time the Prospectus or any
amendment or supplement thereto was issued and the Prospectus Supplement at the Closing Date, complied and will comply, as the
case may be, in all material respects with the requirements of the Securities Act and did not, and will not, contain any untrue
statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The Company meets all of the requirements of General Instruction I.B.6
for the use of Form S-3 under the Securities Act for the offering and sale of the Securities contemplated by this Agreement and
the other Transaction Documents, and the Commission has not notified the Company of any objection to the use of the form of the
Registration Statement pursuant to Rule 401(g)(1) under the Securities Act. The Registration Statement meets the requirements
set forth in Rule 415(a)(1)(x) under the Securities Act. At the earliest time after the filing of the Registration Statement that
the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Securities
Act) relating to any of the Securities, the Company was not and is not an “Ineligible Issuer” (as defined in Rule
405 under the Securities Act). The Company has not distributed any offering material in connection with the offer or sale of any
of the Securities other than the Registration Statement, the Prospectus or the Prospectus Supplement. In accordance with Rule
5110(b)(7)(C)(i) of the Financial Industry Regulatory Authority Manual, the offering of the Securities has been registered with
the Commission on Form S-3 under the Securities Act pursuant to the standards for Form S-3 in effect prior to October 21, 1992,
and the Securities are being offered pursuant to Rule 415 promulgated under the Securities Act.
(e) No Conflicts. The execution, delivery and performance of the Transaction Documents by the Company and the consummation
by the Company of the transactions contemplated hereby and thereby (including, without limitation, the issuance of the Shares
and the Warrants pursuant to the terms thereof, and the reservation for issuance and issuance of the Warrant Shares issuable upon
exercise of the Warrants in accordance with the terms thereof) will not (i) result in a violation of the Company’s Restated
Certificate of Incorporation (“Certificate of Incorporation”) (including, without limitation, any certificate
of designation contained therein), the Company’s Amended and Restated Bylaws (“Bylaws”), or any certificate
of formation, memorandum of association, articles of association, bylaws or other organizational documents of any of the Company’s
Subsidiaries, (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become
a default) in any respect under, or give to others any rights of termination, amendment, acceleration or cancellation of, any
agreement, indenture or instrument to which the Company or any of its Subsidiaries is a party, or (iii) assuming that the Required
Approvals are obtained, result in a violation of any law, rule, regulation, order, judgment or decree (including, without limitation,
foreign, federal and state securities laws and regulations and the rules and regulations of Nasdaq Capital Market (the “Principal
Market”) and including all applicable foreign, federal and state laws, rules and regulations) applicable to the Company
or any of its Subsidiaries or by which any property or asset of the Company or any of its Subsidiaries is bound or affected, except
in the case of (ii) and (iii) above, as would not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(f) Consents. Except as otherwise disclosed in the SEC Documents, neither the Company nor any Subsidiary is required to obtain
any consent from, authorization or order of, or make any filing or registration with (other than the Required Approvals), any
Governmental Entity (as defined below) or any regulatory or self-regulatory agency or any other Person in order for it to execute,
deliver or perform any of its respective obligations under or contemplated by the Transaction Documents, in each case, in accordance
with the terms hereof or thereof. All consents, authorizations, orders, filings and registrations which the Company or any Subsidiary
is required to obtain pursuant to the preceding sentence have been or will be obtained or effected on or prior to the Closing
Date, and neither the Company nor any of its Subsidiaries are aware of any facts or circumstances which might prevent the Company
or any of its Subsidiaries from obtaining or effecting any of the registration, application or filings contemplated by the Transaction
Documents. “Governmental Entity” means any nation, state, county, city, town, village, district, or other political
jurisdiction of any nature, federal, state, local, municipal, foreign, or other government, governmental or quasi-governmental
authority of any nature (including any governmental agency, branch, department, official, or entity and any court or other tribunal),
multinational organization or body; or body exercising, or entitled to exercise, any administrative, executive, judicial, legislative,
police, regulatory, or taxing authority or power of any nature or instrumentality of any of the foregoing, including any entity
or enterprise owned or controlled by a government or a public international organization or any of the foregoing.
(g) Acknowledgment Regarding the Purchaser’s Purchase of Securities. The Company acknowledges and agrees that the Purchaser
is acting solely in the capacity of an arm’s length purchaser with respect to the Transaction Documents and the transactions
contemplated hereby and thereby and that the Purchaser is not (i) an officer or director of the Company or any of its Subsidiaries,
(ii) an “affiliate” (as defined in Rule 144) of the Company or any of its Subsidiaries or (iii) to its knowledge,
a “beneficial owner” of more than 10% of the shares of Common Stock (as defined for purposes of Rule 13d-3 of the
Exchange Act). The Company further acknowledges that the Purchaser is not acting as a financial advisor or fiduciary of the Company
or any of its Subsidiaries (or in any similar capacity) with respect to the Transaction Documents and the transactions contemplated
hereby and thereby, and any advice given by the Purchaser or any of its representatives or agents in connection with the Transaction
Documents and the transactions contemplated hereby and thereby is merely incidental to the Purchaser’s purchase of the Securities.
The Company further represents to the Purchaser that the Company’s decision to enter into the Transaction Documents to which
it is a party has been based solely on the independent evaluation by the Company and its respective representatives.
(h) No General Solicitation; Financial Advisor’s Fees. Neither the Company, nor any of its Subsidiaries or affiliates,
nor any Person acting on its or their behalf, has engaged in any form of general solicitation or general advertising (within the
meaning of Regulation D) in connection with the offer or sale of the Securities. The Company has engaged a financial advisor (the
“Financial Advisor”) in connection with the sale of the Securities. The Company shall be responsible for the
payment of the Financial Advisor’s fees relating to or arising out of the transactions contemplated hereby in connection
with the sale of the Securities. The Company shall pay, and hold the Purchaser harmless against, any liability, loss or expense
(including, without limitation, attorney’s fees and out-of-pocket expenses) arising in connection with any such claim. Other
than the Financial Advisor, neither the Company nor any of its Subsidiaries has engaged any financial advisor, placement agent
or other agent in connection with the offer or sale of the Securities.
(i) No Integrated Offering. Other than with respect to the Securities, none of the Company, its Subsidiaries or any of their
affiliates, nor any Person acting on their behalf has, directly or indirectly, made any offers or sales of any security or solicited
any offers to buy any security, under circumstances that would require registration of the issuance of any of the Securities under
the Securities Act, whether through integration with prior offerings or otherwise, or cause this offering of the Securities to
require approval of stockholders of the Company for purposes of the Securities Act or under any applicable stockholder approval
provisions, including, without limitation, under the rules and regulations of any exchange or automated quotation system on which
any of the securities of the Company are listed or designated for quotation. None of the Company, its Subsidiaries, their affiliates
nor any Person acting on their behalf will take any action or steps that would require registration of the issuance of any of
the Securities under the Securities Act or cause the offering of any of the Securities to be integrated with other offerings of
securities of the Company.
(j) Application of Takeover Protections; Rights Agreement. The Company and the Board of Directors have taken all necessary
action, if any, in order to render inapplicable any control share acquisition, interested stockholder, business combination, poison
pill (including, without limitation, any distribution under a rights agreement), stockholder rights plan or other similar anti-takeover
provision under the Certificate of Incorporation, Bylaws or other organizational documents or the laws of the jurisdiction of
its incorporation or otherwise which is or could become applicable to the Purchaser as a result of the transactions contemplated
by this Agreement, including, without limitation, the Company’s issuance of the Securities and the Purchaser’s ownership
of the Securities. The Company and the Board of Directors have taken all necessary action, if any, in order to render inapplicable
any stockholder rights plan or similar arrangement relating to accumulations of beneficial ownership of shares of Common Stock
or a change in control of the Company or any of its Subsidiaries.
(k) SEC Documents; Financial Statements. Except as disclosed in the SEC Documents, during the two (2) years prior to the date
hereof, the Company has timely filed all reports, schedules, forms, proxy statements, statements and other documents required
to be filed by it with the Commission pursuant to the reporting requirements of the Exchange Act (all of the foregoing filed prior
to the date hereof and all exhibits and appendices included therein and financial statements, notes and schedules thereto and
documents incorporated by reference therein being hereinafter referred to as the “SEC Documents”); reports
filed in compliance with the time periods specified in Rule 12b-25 promulgated under the Exchange Act shall be considered timely
for this purpose. When requested, the Company has delivered or has made available to the Purchaser or its representatives true,
correct and complete copies of each of the SEC Documents not available on the XXXXX system. As of their respective dates, the
SEC Documents complied in all material respects with the requirements of the Exchange Act and the rules and regulations of the
Commission promulgated thereunder applicable to the SEC Documents, and none of the SEC Documents, at the time they were filed
with the Commission, 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. As of their respective dates, the financial statements of the Company included in the SEC Documents complied in all
material respects with applicable accounting requirements and the published rules and regulations of the Commission with respect
thereto as in effect as of the time of filing. Such financial statements have been prepared in accordance with generally accepted
accounting principles (“GAAP”), consistently applied, during the periods involved (except (i) as may be otherwise
indicated in such financial statements or the notes thereto, or (ii) in the case of unaudited interim statements, to the extent
they may exclude footnotes or may be condensed or summary statements) and fairly present in all material respects the financial
position of the Company as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject,
in the case of unaudited statements, to normal year-end audit adjustments which will not be material, either individually or in
the aggregate). The reserves, if any, established by the Company or the lack of reserves, if applicable, are reasonable based
upon facts and circumstances known by the Company on the date hereof and there are no loss contingencies that are required to
be accrued by the Statement of Financial Accounting Standard No. 5 of the Financial Accounting Standards Board which are not provided
for by the Company in its financial statements or otherwise. The Company is not currently contemplating to amend or restate any
of the financial statements (including, without limitation, any notes or any letter of the independent accountants of the Company
with respect thereto) included in the SEC Documents (the “Financial Statements”), nor is the Company currently
aware of facts or circumstances which would require the Company to amend or restate any of the Financial Statements, in each case,
in order for any of the Financial Statements to be in compliance with GAAP and the rules and regulations of the Commission. The
Company has not been informed by its independent accountants that they recommend that the Company amend or restate any of the
Financial Statements or that there is any need for the Company to amend or restate any of the Financial Statements.
(l) Absence of Certain Changes. Except as otherwise disclosed in the SEC Documents, since the date of the Company’s most
recent audited financial statements contained in a Form 10-K, there has been no material adverse effect on the business, assets,
liabilities, properties, operations (including results thereof), condition (financial or otherwise) or prospects of the Company
and its Subsidiaries, taken as a whole. Except as otherwise disclosed in the SEC Documents, since the date of the Company’s
most recent audited financial statements contained in a Form 10-K, neither the Company nor any of its Subsidiaries has (i) declared
or paid any dividends, (ii) sold any material assets, individually or in the aggregate, outside of the ordinary course of business
or (iii) made any material capital expenditures, individually or in the aggregate, outside of the ordinary course of business.
(m) No Undisclosed Events, Liabilities, Developments or Circumstances. Except as otherwise disclosed in the SEC Documents,
no event, liability, development or circumstance has occurred or exists, or is reasonably expected to exist or occur with respect
to the Company, any of its Subsidiaries or any of their respective businesses, properties, liabilities, prospects, operations
(including results thereof) or condition (financial or otherwise), that (i) would be required to be disclosed by the Company under
applicable securities laws in a registration statement on Form S-1 filed with the Commission relating to an issuance and sale
by the Company of its Common Stock and which has not been publicly announced or (ii) would, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(n) Conduct of Business; Regulatory Permits. Neither the Company nor any of its Subsidiaries is in violation of any term of or in default under the Certificate of Incorporation,
the Bylaws, any organizational charter, certificate of formation, memorandum of association, articles of association, certificate
of incorporation or bylaws of any of the Company’s Subsidiaries, or any certificate of designation, preferences or rights
of any outstanding series of preferred stock of the Company or any of its Subsidiaries, except in all cases for possible violations
which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Neither the Company
nor any of its Subsidiaries is in violation of any judgment, decree or order or any statute, ordinance, rule or regulation applicable
to the Company or any of its Subsidiaries, except in all cases for possible violations which would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. During the two years prior to the date hereof, (i) the Common
Stock has been listed or designated for quotation on the Principal Market, and (ii) trading in the Common Stock has not been suspended
by the Commission or the Principal Market. The Company and each of its Subsidiaries possess all certificates, authorizations and
permits issued by the appropriate regulatory authorities necessary to conduct their respective businesses, except where the failure
to possess such certificates, authorizations or permits would not have, individually or in the aggregate, a Material Adverse Effect,
and neither the Company nor any such Subsidiary has received any notice of proceedings relating to the revocation or modification
of any such certificate, authorization or permit. There is no agreement, commitment, judgment, injunction, order or decree binding
upon the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries is a party which has or would reasonably
be expected to have the effect of prohibiting or materially impairing any business practice of the Company or any of its Subsidiaries,
any acquisition of property by the Company or any of its Subsidiaries or the conduct of business by the Company or any of its
Subsidiaries as currently conducted other than such effects which, individually or in the aggregate, have not had and would not
reasonably be expected to have a Material Adverse Effect.
(p)
Foreign Corrupt Practices. None of the Company, any Subsidiary of the
Company or any director, officer, agent, employee, or, to the knowledge of the Company, any other person acting for or on
behalf of the foregoing (individually and collectively, a “Company Affiliate”) have violated the FCPA or
any other applicable anti-bribery or anti-corruption laws, nor, to the knowledge of the Company, has any Company Affiliate
offered, paid, promised to pay, or authorized the payment of any money, or offered, given, promised to give, or authorized
the giving of anything of value, to any officer, employee or any other person acting in an official capacity for any
Governmental Entity to any political party or official thereof or to any candidate for political office (individually and
collectively, a “Government Official”) or to any person under circumstances where such Company Affiliate
knew or was aware of a high probability that all or a portion of such money or thing of value would be offered, given or
promised, directly or indirectly, to any Government Official, for the purpose of:
(i) (A) influencing any act or decision of such Government Official in his/her official capacity, (B) inducing such Government Official
to do or omit to do any act in violation of his/her lawful duty, (C) securing any improper advantage, or (D) inducing such Government
Official to influence or affect any act or decision of any Governmental Entity, or
(ii) assisting the Company or its Subsidiaries in obtaining or retaining business for or with, or directing business to, the Company
or its Subsidiaries.
(q) Xxxxxxxx-Xxxxx Act. Except as set forth in the SEC Documents, the Company and each Subsidiary is in compliance with any
and all applicable requirements of the Xxxxxxxx-Xxxxx Act of 2002, as amended, and any and all applicable rules and regulations
promulgated by the Commission thereunder except as would not, individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect.
(r) Transactions With Affiliates. The Company has disclosed in the SEC Documents all transactions with any “related person”
(as defined in Item 404 of Regulation S-K promulgated pursuant to the Exchange Act) which are required to be disclosed in such
SEC Documents.
(s) Indebtedness and
Other Contracts. Neither the Company nor any of its Subsidiaries, except as disclosed to the Purchaser or in the SEC Documents,
(i) has any outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments
evidencing Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is bound,
(ii) is a party to any contract, agreement or instrument, the violation of which, or default under which, by the other party(ies)
to such contract, agreement or instrument would reasonably be expected to result in a Material Adverse Effect, (iii) has any financing
statements securing obligations in any amounts filed in connection with the Company or any of its Subsidiaries; (iv) is in violation
of any term of, or in default under, any contract, agreement or instrument relating to any Indebtedness, except where such violations
and defaults would not result, individually or in the aggregate, in a Material Adverse Effect, or (v) is a party to any contract,
agreement or instrument relating to any Indebtedness, the performance of which, in the judgment of the Company’s officers,
has or is expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries have any liabilities or
obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred
in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the
aggregate, do not or would not reasonably be expected to have a Material Adverse Effect. For purposes of this Agreement: (x) “Indebtedness”
of any Person means, without duplication (A) all indebtedness for borrowed money, (B) all obligations issued, undertaken or assumed
as the deferred purchase price of property or services (including, without limitation, “capital leases” in accordance
with GAAP) (other than trade payables entered into in the ordinary course of business consistent with past practice), (C) all
reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (D) all obligations
evidenced by notes, bonds, debentures or similar instruments, including obligations so evidenced incurred in connection with the
acquisition of property, assets or businesses, (E) all indebtedness created or arising under any conditional sale or other title
retention agreement, or incurred as financing, in either case with respect to any property or assets acquired with the proceeds
of such indebtedness (even though the rights and remedies of the seller or bank under such agreement in the event of default are
limited to repossession or sale of such property), (F) all monetary obligations under any leasing or similar arrangement which,
in connection with GAAP, consistently applied for the periods covered thereby, is classified as a capital lease, (G) all indebtedness
referred to in clauses (A) through (F) above secured by (or for which the holder of such Indebtedness has an existing right, contingent
or otherwise, to be secured by) any Lien upon or in any property or assets (including accounts and contract rights) owned by any
Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness,
and (H) all Contingent Obligations (as defined below) in respect of indebtedness or obligations of others of the kinds referred
to in clauses (A) through (G) above; and (y) “Contingent Obligation” means, as to any Person, any direct or
indirect liability, contingent or otherwise, of that Person with respect to any Indebtedness, lease, dividend or other obligation
of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to
provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating
thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with
respect thereto.
(t) Litigation. No director, officer or employee of the Company or any of its subsidiaries has willfully violated 18 U.S.C.
§1519 or engaged in spoliation in reasonable anticipation of litigation. Without limitation of the foregoing, 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, any of its Subsidiaries or any current or former director or officer of the Company or any of its Subsidiaries. The
Commission has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the
Company under the Securities Act or the Exchange Act, including, without limitation, the Registration Statement. After reasonable
inquiry of its employees, the Company is not aware of any fact which might result in or form the basis for any such investigation.
Neither the Company nor any of its Subsidiaries is subject to any order, writ, judgment, injunction, decree, determination or
award of any Governmental Entity.
(u) Insurance. The Company and each of its Subsidiaries are insured by insurers of recognized financial responsibility against
such losses and risks and in such amounts as management of the Company believes to be prudent and customary in the businesses
in which the Company and its Subsidiaries are engaged. Neither the Company nor any such Subsidiary has been refused any insurance
coverage sought or applied for, and neither the Company nor any such Subsidiary has any reason to believe that it will be unable
to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers
as may be necessary to continue its business at a cost that would not have a Material Adverse Effect.
(v) Employee Relations. Neither the Company nor any of its Subsidiaries is a party to any collective bargaining agreement or
employs any member of a union. The Company and its Subsidiaries believe that their relations with their employees are good. No
executive officer (as defined in Rule 501(f) promulgated under the Securities Act) or other key employee of the Company or any
of its Subsidiaries has notified the Company or any such Subsidiary that such officer intends to leave the Company or any such
Subsidiary or otherwise terminate such officer’s employment with the Company or any such Subsidiary. No current (or former)
executive officer or other key employee of the Company or any of its Subsidiaries is, or is now expected to be, in violation of
any material term of any employment contract, confidentiality, disclosure or proprietary information agreement, non-competition
agreement, or any other contract or agreement or any restrictive covenant, and the continued employment of each such executive
officer or other key employee (as the case may be) does not subject the Company or any of its Subsidiaries to any liability which
would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect with respect to any of the foregoing
matters. The Company and its Subsidiaries are in compliance with all federal, state, local and foreign laws and regulations respecting
labor, employment and employment practices and benefits, terms and conditions of employment and wages and hours, except where
failure to be in compliance would not, either individually or in the aggregate, reasonably be expected to result in a Material
Adverse Effect.
(w) Title.
(i) Real Property. Each of the Company and its Subsidiaries holds good title to all real property, leases in real property,
facilities or other interests in real property owned or held by the Company or any of its Subsidiaries (the “Real Property”)
owned by the Company or any of its Subsidiaries (as applicable). The Real Property is free and clear of all Liens and is not subject
to any rights of way, building use restrictions, exceptions, variances, reservations, or limitations of any nature except for
(a) Liens for current taxes not yet due and (b) zoning laws and other land use restrictions that do not impair the present or
anticipated use of the property subject thereto. Any Real Property held under lease by the Company or any of its Subsidiaries
are held by them under valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere
with the use made and proposed to be made of such property and buildings by the Company or any of its Subsidiaries.
(ii) Fixtures and Equipment. Except as would not reasonably be expected to have a Material Adverse Effect, each of the Company
and its Subsidiaries (as applicable) has good title to, or a valid leasehold interest in, the tangible personal property, equipment,
improvements, fixtures, and other personal property and appurtenances that are used by the Company or its Subsidiary in connection
with the conduct of its business (the “Fixtures and Equipment”). Except as would not reasonably be expected
to have a Material Adverse Effect, the Fixtures and Equipment are structurally sound, are in good operating condition and repair,
are adequate for the uses to which they are being put, are not in need of maintenance or repairs except for ordinary, routine
maintenance and repairs and are sufficient for the conduct of the Company’s and/or its Subsidiaries’ businesses (as
applicable) in the manner as conducted prior to the Closing. Except as would not reasonably be expected to have a Material Adverse
Effect, each of the Company and its Subsidiaries owns all of its Fixtures and Equipment free and clear of all Liens except for
(a) Liens for current taxes not yet due and (b) zoning laws and other land use restrictions that do not impair the present or
anticipated use of the property subject thereto.
(x) Intellectual Property Rights. Except as disclosed in the SEC Documents, the Company and its Subsidiaries own or possess
adequate rights or licenses to use all trademarks, trade names, service marks, service mark registrations, service names, original
works of authorship, patents, patent rights, copyrights, inventions, licenses, approvals, governmental authorizations, trade secrets
and other intellectual property rights and all applications and registrations therefor (“Intellectual Property Rights”)
necessary to conduct their respective businesses as now conducted and presently proposed to be conducted. The Company does not
have any knowledge of any infringement by the Company or its Subsidiaries of Intellectual Property Rights of others which infringement
would reasonably be expected to result in a Material Adverse Effect. There is no claim, action or proceeding being made or brought,
or to the knowledge of the Company or any of its Subsidiaries, being threatened, against the Company or any of its Subsidiaries
regarding its Intellectual Property Rights, which claim, action or proceeding would reasonably be expected to result in a Material
Adverse Effect. Neither the Company nor any of its Subsidiaries is aware of any facts or circumstances which could form a reasonably
basis for any of the foregoing infringements or claims, actions or proceedings. The Company and its Subsidiaries have taken reasonable
security measures to protect the secrecy, confidentiality and value of all of their Intellectual Property Rights.
(y) Environmental Laws.
(i) The Company and its Subsidiaries (A) are in compliance with any and all Environmental Laws (as defined below), (B) have received
all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses
and (C) are in compliance with all terms and conditions of any such permit, license or approval where, in each of the foregoing
clauses (A), (B) and (C), the failure to so comply would be reasonably expected to have, individually or in the aggregate, a Material
Adverse Effect. The term “Environmental Laws” means all federal, state, local or foreign laws relating to pollution
or protection of human health or the environment (including, without limitation, ambient air, surface water, groundwater, land
surface or subsurface strata), including, without limitation, 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.
(ii) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, no Hazardous
Materials: (A) have been disposed of or otherwise released from any Real Property of the Company or any of its Subsidiaries
in violation of any Environmental Laws; or (B) are present on, over, beneath, in or upon any Real Property or any portion
thereof in quantities that would constitute a violation of any Environmental Laws. No prior use by the Company or any of its Subsidiaries
of any Real Property has occurred that violates any Environmental Laws, which violation would reasonably be expected to have a
Material Adverse Effect.
(iii) Neither the Company nor any of its Subsidiaries knows of any other person who or entity which has stored, treated, recycled, disposed
of or otherwise located on any Real Property any Hazardous Materials, including, without limitation, such substances as asbestos
and polychlorinated biphenyls.
(iv) None of the Real Properties are on any federal or state “Superfund” list or Liability Information System (“CERCLIS”)
list or any state environmental agency list of sites under consideration for CERCLIS, nor subject to any environmental related
Liens.
(z) Subsidiary Rights. The Company or one of its Subsidiaries has the unrestricted right to vote, and (subject to limitations
imposed by applicable law) to receive dividends and distributions on, all capital securities of its Subsidiaries as owned by the
Company or such Subsidiary.
(aa) Tax Status. The Company and each of its Subsidiaries (i)
has timely made or filed all foreign, federal and state income and all other tax returns, reports and declarations required by
any jurisdiction to which it is subject, except as would not reasonably be expected to have a Material Adverse Effect, (ii) has
timely paid all taxes and other governmental assessments and charges that are material in amount, shown or determined to be due
on such returns, reports and declarations, except those being contested in good faith and (iii) has set aside on its books provision
reasonably adequate for the payment of all taxes for periods subsequent to the periods to which such returns, reports or declarations
apply. There are no unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction, and the
officers of the Company and its Subsidiaries know of no basis for any such claim. The Company is not operated in such a manner
as to qualify as a passive foreign investment company, as defined in Section 1297 of the Internal Revenue Code of 1986, as amended
(the “Code”). The net operating loss carryforwards (“NOLs”) for United States federal income
tax purposes of the consolidated group of which the Company is the common parent, if any, shall not be adversely effected by the
transactions contemplated hereby. The transactions contemplated hereby do not constitute an “ownership change” within
the meaning of Section 382 of the Code, thereby preserving the Company’s ability to utilize such NOLs.
(cc) Internal Accounting and Disclosure Controls. Except as otherwise disclosed in the SEC Documents, the Company and each of
its Subsidiaries maintains internal control over financial reporting (as such term is defined in Rule 13a-15(f) under the Exchange
Act) that is effective to provide reasonable assurance regarding the reliability of financial reporting and the preparation of
financial statements for external purposes in accordance with generally accepted accounting principles, including 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 and liability accountability, (iii)
access to assets or incurrence of liabilities is permitted only in accordance with management’s general or specific authorization
and (iv) the recorded accountability for assets and liabilities is compared with the existing assets and liabilities at reasonable
intervals and appropriate action is taken with respect to any difference. Except as otherwise disclosed in the SEC Documents,
the Company maintains disclosure controls and procedures (as such term is defined in Rule 13a-15(e) under the Exchange Act) that
are effective in ensuring that information required to be disclosed by the Company in the reports that it files or submits under
the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the rules and forms of
the Commission, including, without limitation, controls and procedures designed to ensure that information required to be disclosed
by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company’s
management, including its principal executive officer or officers and its principal financial officer or officers, as appropriate,
to allow timely decisions regarding required disclosure. Except as otherwise disclosed in the SEC Documents, neither the Company
nor any of its Subsidiaries has received any notice or correspondence from any accountant, Governmental Entity or other Person
relating to any potential material weakness or significant deficiency in any part of the internal controls over financial reporting
of the Company or any of its Subsidiaries.
(dd) Off Balance Sheet Arrangements. There is no transaction, arrangement, or other relationship between the Company or any
of its Subsidiaries and an unconsolidated or other off balance sheet entity that is required to be disclosed by the Company in
its Exchange Act filings and is not so disclosed or that otherwise would be reasonably likely to have a Material Adverse Effect.
(ee) Investment Company Status. The Company is not, and upon consummation of the sale of the Securities will not be, an “investment
company,” an affiliate of an “investment company,” a company controlled by an “investment company”
or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment
company” as such terms are defined in the Investment Company Act of 1940, as amended.
(ff) Acknowledgement Regarding Purchaser’s Trading Activity. It is understood and acknowledged by the Company that (i)
following the public disclosure of the transactions contemplated by the Transaction Documents, in accordance with the terms thereof,
the Purchaser has not been asked by the Company or any of its Subsidiaries to agree, nor has the Purchaser agreed with the Company
or any of its Subsidiaries, to desist from effecting any transactions in or with respect to (including, without limitation, purchasing
or selling, long and/or short) any securities of the Company, or “derivative” securities based on securities issued
by the Company or to hold any of the Securities for any specified term; (ii) the Purchaser, and counterparties in “derivative”
transactions to which the Purchaser is a party, directly or indirectly, presently may have a “short” position in the
Common Stock which was established prior to the Purchaser’s knowledge of the transactions contemplated by the Transaction
Documents; (iii) the Purchaser shall not be deemed to have any affiliation with or control over any arm’s length counterparty
in any “derivative” transaction; and (iv) the Purchaser may rely on the Company’s obligation to timely deliver
shares of Common Stock upon conversion, exercise or exchange, as applicable, of the Securities as and when required pursuant to
the Transaction Documents for purposes of effecting trading in the Common Stock of the Company. The Company further understands
and acknowledges that following the public disclosure of the transactions contemplated by the Transaction Documents pursuant to
the press release disclosing all the material terms of the transactions contemplated by the Transaction Documents the Purchaser
may engage in hedging and/or trading activities (including, without limitation, the location and/or reservation of borrowable
shares of Common Stock) at various times during the period that the Securities are outstanding, including, without limitation,
during the periods that the value and/or number of the Warrant Shares deliverable with respect to the Securities are being determined
and such hedging and/or trading activities (including, without limitation, the location and/or reservation of borrowable shares
of Common Stock), if any, can reduce the value of the existing stockholders’ equity interest in the Company both at and
after the time the hedging and/or trading activities are being conducted. The Company acknowledges that such aforementioned hedging
and/or trading activities do not constitute a breach of this Agreement, the Warrants or any other Transaction Document or any
of the documents executed in connection herewith or therewith.
(gg) Manipulation of Price. Neither the Company nor any of its Subsidiaries has, and, to the knowledge of the Company, no Person
acting on their behalf has, directly or indirectly, (i) taken any action designed to cause or to result in the stabilization or
manipulation of the price of any security of the Company or any of its Subsidiaries to facilitate the sale or resale of any of
the Securities, (ii) sold, bid for, purchased, or paid any compensation for soliciting purchases of, any of the Securities (other
than the Financial Advisor), (iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase any
other securities of the Company or any of its Subsidiaries or (iv) paid or agreed to pay any Person for research services with
respect to any securities of the Company or any of its Subsidiaries.
(hh) U.S. Real Property Holding Corporation. Neither the Company nor any of its Subsidiaries is, or has ever been, a U.S. real
property holding corporation within the meaning of Section 897 of the Code.
(ii) Registration Eligibility. The Company is eligible to register the issuance of the Securities by the Company using Form
S-3 promulgated under the Securities Act.
(jj) Transfer Taxes. On the Closing Date, all stock transfer or other taxes (other than income or similar taxes) which are required
to be paid in connection with the issuance, sale and transfer of the Securities to be sold to the Purchaser hereunder will be,
or will have been, fully paid or provided for by the Company, and all laws imposing such taxes will be or will have been complied
with.
(kk) Bank Holding Company Act. Neither the Company nor any of its Subsidiaries 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.
(ll) Shell Company Status. The Company is not an issuer identified in, or subject to, Rule 144(i)(1). The Company has ceased
to be an issuer described in paragraph Rule 144 (i)(1), is subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act; has filed all reports and other materials required to be filed by Section 13 or 15(d) of the Exchange Act, as applicable,
during the preceding 12 months, other than Form 8-K reports; and has filed current “Form 10 information” with the
Commission reflecting its status as an entity that is no longer an issuer described in Rule 144(i)(1).
(mm) Illegal or Unauthorized Payments; Political Contributions. Neither the Company nor any of its Subsidiaries nor, to the
best of the Company’s knowledge (after reasonable inquiry of its officers and directors), any of the officers, directors,
employees, agents or other representatives of the Company or any of its Subsidiaries or any other business entity or enterprise
with which the Company or any Subsidiary is or has been affiliated or associated, has, directly or indirectly, made or authorized
any payment, contribution or gift of money, property, or services, whether or not in contravention of applicable law, (i) as a
kickback or bribe to any Person or (ii) to any political organization, or the holder of or any aspirant to any elective or
appointive public office except for personal political contributions not involving the direct or indirect use of funds of the
Company or any of its Subsidiaries.
(nn) Money Laundering. The Company and its Subsidiaries are in compliance with, and have not previously violated, the USA Patriot
Act of 2001 and all other applicable U.S. and non-U.S. anti-money laundering laws and regulations, including, but not limited
to, the laws, regulations and Executive Orders and sanctions programs administered by the U.S. Office of Foreign Assets Control,
including, without limitation, (i) Executive Order 13224 of September 23, 2001 entitled, “Blocking Property and Prohibiting
Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism” (66 Fed. Reg. 49079 (2001)); and (ii) any
regulations contained in 31 CFR, Subtitle B, Chapter V.
(oo) Stock Option Plans. Except as otherwise disclosed in the SEC Documents, each stock option granted by the Company was granted
(i) in accordance with the terms of the applicable stock option plan of the Company 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 policy or practice of the Company 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.
(pp) No Disagreements with Accountants and Lawyers. There are
no material disagreements of any kind presently existing, or reasonably anticipated by the Company to arise, between the Company
and the accountants and lawyers formerly or presently employed by the Company and the Company is current with respect to any fees
owed to its accountants and lawyers which could affect the Company’s ability to perform any of its obligations under any
of the Transaction Documents. In addition, on or prior to the date hereof, the Company had discussions with its accountants about
its financial statements previously filed with the Commission. Based on those discussions, the Company has no reason to believe
that it will need to restate any such financial statements or any part thereof.
(rr) No Disqualification Events. With respect to Securities to be offered and sold hereunder in reliance on Rule 506(b) under
the Securities Act (“Regulation D Securities”), none of the Company, any of its predecessors, any affiliated
issuer, any director, executive officer, other officer of the Company participating in the offering contemplated hereby, any beneficial
owner of 20% or more of the Company’s outstanding voting equity securities, calculated on the basis of voting power, nor
any promoter (as that term is defined in Rule 405 under the Securities Act) connected with the Company in any capacity at the
time of sale (each, an “Issuer Covered Person” and, together, “Issuer Covered Persons”)
is subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii) under the Securities
Act (a “Disqualification Event”), except for a Disqualification Event covered by Rule 506(d)(2) or (d)(3).
The Company has exercised reasonable care to determine whether any Issuer Covered Person is subject to a Disqualification Event.
The Company has complied, to the extent applicable, with its disclosure obligations under Rule 506(e), and has furnished to the
Purchaser a copy of any disclosures provided thereunder.
(ss) Other Covered Persons. The Company is not aware of any Person (other than the Financial Advisor) that has been or will
be paid (directly or indirectly) remuneration for solicitation of potential purchasers in connection with the sale of any Securities.
(tt) No Additional Agreements. The Company does not have any agreement or understanding with the Purchaser with respect to the
transactions contemplated by the Transaction Documents other than as specified in the Transaction Documents.
(uu) Public Utility Holding Act. None of the Company nor any of its Subsidiaries is a “holding company,” or an “affiliate”
of a “holding company,” as such terms are defined in the Public Utility Holding Act of 2005.
(vv) Federal Power Act. None of the Company nor any of its Subsidiaries is subject to regulation as a “public utility”
under the Federal Power Act, as amended.
(ww) Registration Rights. Except as otherwise disclosed in the SEC Documents, no holder of securities of the Company has rights
to the registration of any securities of the Company because of the filing of the Registration Statement or the issuance of the
Securities hereunder that could expose the Company to material liability or the Purchaser to any liability or that could impair
the Company’s ability to consummate the issuance and sale of the Securities in the manner, and at the times, contemplated
hereby, which rights have not been waived by the holder thereof as of the date hereof.
(xx) Potential Products; FDA; EMEA.
(i) The Company possesses all certificates, authorizations and permits issued by the appropriate federal, state or foreign regulatory
authorities necessary to conduct its business as currently conducted, including without limitation all such certificates, authorizations
and permits required by the United States Food and Drug Administration (the “FDA”) or any other federal, state
or foreign agencies or bodies engaged in the regulation of pharmaceuticals or biohazardous materials, except where the failure
to so possess such certificates, authorizations and permits, individually or in the aggregate, would not result in a Material
Adverse Effect. The Company has not received any notice of proceedings relating to the revocation or modification of any such
certificate, authorization or permit which, individually or in the aggregate, if the subject of an unfavorable decision, ruling
or finding, would have a Material Adverse Effect.
(ii) Except as otherwise disclosed in the SEC Documents, the Company has not received any written notices or statements from the FDA,
the European Medicines Agency (the “EMEA”) or any other governmental agency, and otherwise has no knowledge
or reason to believe, that (i) any drug or other product candidate of the Company (each a “Potential Product”)
may or will be rejected or determined to be non-approvable; (ii) a delay in time for review and/or approval of a marketing authorization
application or marketing approval application in any jurisdiction for any Potential Product is or may be required, requested or
being implemented; (iii) one or more clinical studies for any Potential Product shall or may be requested or required in addition
to the clinical studies submitted to the FDA prior to the date hereof as a precondition to or condition of issuance or maintenance
of a marketing approval for any Potential Product; (iv) any license, approval, permit or authorization to conduct any clinical
trial of or market any product or Potential Product of the Company has been, will be or may be suspended, revoked, modified or
limited, except in the cases of clauses (i), (ii), (iii) and (iv) where such rejections, determinations, delays, requests, suspensions,
revocations, modifications or limitations might not reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.
(iii) To the Company’s knowledge, the preclinical and clinical testing, application for marketing approval of, manufacture, distribution,
promotion and sale of the products and Potential Products of the Company is in compliance, in all material respects, with all
laws, rules and regulations applicable to such activities, including without limitation applicable good laboratory practices,
good clinical practices and good manufacturing practices, except for such non-compliance as would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. The Company is not aware of any studies, tests or trial the
results of which reasonably call into question the results of the tests and trials conducted by or on behalf of the Company. The
Company has not received notice of adverse finding, warning letter or clinical hold notice from the FDA or any non-U.S. counterpart
of any of the foregoing, or any untitled letter or other correspondence or notice from the FDA or any other governmental authority
or agency or any institutional or ethical review board alleging or asserting noncompliance with any law, rule or regulation applicable
in any jurisdiction, except notices, letters, and correspondences and non-U.S. counterparts thereof alleging or asserting such
noncompliance as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Except
as disclosed in the SEC Documents, the Company has not, either voluntarily or involuntarily, initiated, conducted or issued, or
caused to be initiated, conducted or issued, any recall, field correction, market withdrawal or replacement, safety alert, warning,
“dear doctor” letter, investigator notice, or other notice or action relating to an alleged or potential lack of safety
or efficacy of any product or Potential Product of the Company, any alleged product defect of any product or Potential Product
of the Company, or any violation of any material applicable law, rule, regulation or any clinical trial or marketing license,
approval, permit or authorization for any product or potential product of the Company, and the Company is not aware of any facts
or information that would cause it to initiate any such notice or action and has no knowledge or reason to believe that the FDA,
the EMEA or any other governmental agency or authority or any institutional or ethical review board or other non-governmental
authority intends to impose, require, request or suggest such notice or action except, in each case, as would not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(yy) Cybersecurity. To the Company’s knowledge, the Company and its Subsidiaries’ information technology assets
and equipment, computers, systems, networks, hardware, software, websites, applications, and databases (collectively, “IT
Systems”) are adequate for, and operate and perform in all material respects as required in connection with the operation
of the business of the Company and its subsidiaries as currently conducted, free and clear of all material bugs, errors, defects,
Trojan horses, time bombs, malware and other corruptants that would reasonably be expected to have a Material Adverse Effect on
the Company’s business. The Company and its Subsidiaries have implemented and maintained commercially reasonable physical,
technical and administrative controls, policies, procedures, and safeguards to maintain and protect their material confidential
information and the integrity, continuous operation, redundancy and security of all IT Systems and data, including “Personal
Data,” used in connection with their businesses. “Personal Data” means (i) a natural person’s name,
street address, telephone number, e-mail address, photograph, social security number or tax identification number, driver’s
license number, passport number, credit card number, bank information, or customer or account number; (ii) any information which
would qualify as “personally identifying information” under the Federal Trade Commission Act, as amended; (iii) “personal
data” as defined by the European Union General Data Protection Regulation (“GDPR”) (EU 2016/679); (iv) any
information which would qualify as “protected health information” under the Health Insurance Portability and Accountability
Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act (collectively, “HIPAA”);
and (v) any other piece of information that allows the identification of such natural person, or his or her family, or permits
the collection or analysis of any data related to an identified person’s health or sexual orientation. There have been no
breaches, violations, outages or unauthorized uses of or accesses to same, except for those that have been remedied without material
cost or liability or the duty to notify any other person or such, nor any incidents under internal review or investigations relating
to the same except in each case, where such would not, either individually or in the aggregate, reasonably be expected to result
in a Material Adverse Effect. The Company and its 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 Personal Data and to the protection
of such IT Systems and Personal Data from unauthorized use, access, misappropriation or modification except in each case, where
such would not, either individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
(zz) Compliance with Data Privacy Laws. To the Company’s knowledge, the Company and its Subsidiaries are, and at all prior
times were, in compliance with all applicable state and federal data privacy and security laws and regulations, including without
limitation HIPAA, and the Company and its Subsidiaries have taken commercially reasonable actions to prepare to comply with, and
since May 25, 2018, have been and currently are in compliance with, the GDPR (EU 2016/679) (collectively, the “Privacy
Laws”) except in each case, where such would not, either individually or in the aggregate, reasonably be expected to
result in a Material Adverse Effect. To ensure compliance with the Privacy Laws, the Company and its Subsidiaries have in place,
comply with, and take appropriate steps reasonably designed to ensure compliance in all material respects with their policies
and procedures relating to data privacy and security and the collection, storage, use, disclosure, handling, and analysis of Personal
Data (the “Policies”). The Company and its Subsidiaries have at all times made all disclosures to users or
customers required by applicable laws and regulatory rules or requirements, and none of such disclosures made or contained in
any Policy have, to the knowledge of the Company, been inaccurate or in violation of any applicable laws and regulatory rules
or requirements in any material respect. The Company further certifies that neither it nor any Subsidiary: (i) has received notice
of any actual or potential liability under or relating to, or actual or potential violation of, any of the Privacy Laws, and has
no knowledge of any event or condition that would reasonably be expected to result in any such notice; (ii) is currently conducting
or paying for, in whole or in part, any investigation, remediation, or other corrective action pursuant to any Privacy Law; or
(iii) is a party to any order, decree, or agreement that imposes any obligation or liability under any Privacy Law.
(aaa) Disclosure. The Company confirms that neither it nor any other Person acting
on its behalf has provided the Purchaser or its agents or counsel with any information that constitutes or would reasonably be
expected to constitute material, non-public information concerning the Company or any of its Subsidiaries, other than the existence
of the transactions contemplated by this Agreement and the other Transaction Documents. The Company understands and confirms that
the Purchaser will rely on the foregoing representations in effecting transactions in securities of the Company. All disclosure
provided to the Purchaser regarding the Company and its Subsidiaries, their businesses and the transactions contemplated hereby,
including the schedules to this Agreement, furnished by or on behalf of the Company or any of its Subsidiaries is true and correct
as of the date furnished and does not contain any untrue statement of a material fact or omit to state any material fact as of
the date furnished necessary in order to make the statements made therein, in the light of the circumstances under which they
were made, not misleading. All of the written information furnished after the date hereof by or on behalf of the Company or any
of its Subsidiaries to the Purchaser pursuant to or in connection with this Agreement and the other Transaction Documents, taken
as a whole, will be true and correct in all material respects as of the date on which such information is so provided and will
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. No event or circumstance has occurred
or information exists with respect to the Company or any of its Subsidiaries or its or their business, properties, liabilities,
prospects, operations (including results thereof) or conditions (financial or otherwise), which, under applicable law, rule or
regulation, requires public disclosure at or before the date hereof or announcement by the Company but which has not been so publicly
disclosed. All financial projections and forecasts that have been prepared by or on behalf of the Company or any of its Subsidiaries
and made available to you have been prepared in good faith based upon reasonable assumptions and represented, at the time each
such financial projection or forecast was delivered to the Purchaser, the Company’s best estimate of future financial performance
(it being recognized that such financial projections or forecasts are not to be viewed as facts and that the actual results during
the period or periods covered by any such financial projections or forecasts may differ from the projected or forecasted results).
The Company acknowledges and agrees that the Purchaser does not make and has not made any representations or warranties with respect
to the transactions contemplated hereby other than those specifically set forth in Section 2.
(ccc) Capitalization. The capitalization of the Company as of the date hereof is as set forth on Schedule 3.1(ccc). The Company
has not issued any capital stock since its most recently filed periodic report under the Exchange Act, other than pursuant to
the exercise of employee stock options under the Company’s stock option plans, the issuance of shares of Common Stock to
employees pursuant to the Company’s employee stock purchase plans and pursuant to the conversion and/or exercise of Common
Stock Equivalents outstanding as of the date of the most recently filed periodic report under the Exchange Act. 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(ccc) or otherwise contemplated by the Transaction
Documents, 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 the capital stock of any Subsidiary, 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 Common Stock Equivalents or capital stock of any Subsidiary. 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 Purchaser). Except
as contemplated by the Transaction Documents, 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 of such security or instrument upon an issuance
of securities by the Company or any Subsidiary. Except as may apply to the Company’s outstanding preferred stock, 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 stock appreciation rights or “phantom
stock” plans or agreements or any similar plan or agreement. All of the outstanding shares of capital stock of the Company
are duly authorized, validly issued, fully paid and nonassessable, have been issued in compliance with all federal and state securities
laws, and none of such outstanding shares was issued in violation of any preemptive rights or similar rights to subscribe for
or purchase securities. No further approval or authorization of any stockholder, the Board of Directors or others is required
for the issuance and sale of the Securities. Except as (i) may apply to the Company’s outstanding preferred stock or (ii)
contemplated by or entered into in connection with the Transaction Documents, there are no stockholders agreements, voting agreements
or other similar agreements with respect to the Company’s capital stock to which the Company is a party or, to the knowledge
of the Company, between or among any of the Company’s stockholders.
3.2 Representations and Warranties of the Purchaser. The 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. The 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 the 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 the Purchaser.
Each Transaction Document to which it is a party has been duly executed by the Purchaser, and when delivered by the Purchaser
in accordance with the terms hereof, will constitute the valid and legally binding obligation of the 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. The 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 the Purchaser’s right to sell the Securities pursuant to the Registration
Statement or otherwise in compliance with applicable federal and state securities laws). The Purchaser is acquiring the Securities
hereunder in the ordinary course of its business.
(c) Purchaser Status. At the time the 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 an “accredited investor” as defined in Rule 501(a)(1), (a)(2),
(a)(3), (a)(7), (a)(8), (a)(9), (a)(12), or (a)(13) under the Securities Act.
(d) Experience of the Purchaser. The 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. The 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. The Purchaser acknowledges that it has had the opportunity to review the Transaction Documents (including
all exhibits and schedules thereto) and the SEC Documents 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.
(f) Certain Transactions and Confidentiality. Other than consummating the transactions contemplated hereunder, the Purchaser
has not, nor has any Person acting on behalf of or pursuant to any understanding with the 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 the Purchaser first received a term sheet (written or oral) from the Company or any other Person representing the Company
setting forth the material terms of the transactions contemplated hereunder and ending immediately prior to the execution hereof.
Notwithstanding the foregoing, in the case that the Purchaser is a multi-managed investment vehicle whereby separate portfolio
managers manage separate portions of the Purchaser’s assets and the portfolio managers have no direct knowledge of the investment
decisions made by the portfolio managers managing other portions of the 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 the Purchaser’s
representatives, including, without limitation, its officers, directors, partners, legal and other advisors, employees, agents
and Affiliates, the 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 in
order to effect Short Sales or similar transactions in the future.
The
Company acknowledges and agrees that the representations contained in this Section 3.2 shall not modify, amend or affect the 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, 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 Warrant Shares. 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
issued pursuant to any such exercise shall be issued free of all legends. If at any time following the date hereof the Registration
Statement (or any subsequent registration statement registering the sale or resale of the Warrant Shares) is not effective or
is not otherwise available for the sale or resale of 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 or resale of the Warrant Shares (it being understood
and agreed that the foregoing shall not limit the ability of the Company to issue, or the Purchaser to sell, any of the Warrant
Shares in compliance with applicable federal and state securities laws).
4.2 Furnishing of Information. Until the earliest of the time that (i) the Purchaser does not own any of the Securities or
(ii) the Warrants have expired, the Company covenants 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
even if the Company is not then subject to the reporting requirements of 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 stockholder approval prior to the closing
of such other transaction unless stockholder 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 Purchaser that it shall have publicly disclosed all material, non-public information delivered
to the Purchaser by the Company or any of its Subsidiaries, or any of their respective officers, directors, employees, Affiliates
or agents, 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
entered into in connection with the transaction contemplated hereby, whether written or oral, between the Company, any of its
Subsidiaries or any of their respective officers, directors, agents, employees, Affiliates or agents, on the one hand, and the
Purchaser or any of its Affiliates on the other hand, shall terminate and be of no further force or effect. The Company understands
and confirms that the Purchaser shall be relying on the foregoing covenant in effecting transactions in securities of the Company.
The Company and the Purchaser shall consult with each other in issuing any other press releases with respect to the transactions
contemplated hereby, and neither the Company nor the 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 the Purchaser, or without the
prior consent of the 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 the Purchaser, or include the name of the Purchaser in any filing with the Commission or any regulatory agency
or Trading Market, without the prior written consent of the 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 Purchaser with prior notice of such disclosure permitted
under this clause (b) and reasonably cooperate with the Purchaser regarding such disclosure.
4.5 Stockholder Rights Plan. No claim will be made or enforced by the Company or, with the consent of the Company, any other
Person, that the 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 the 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 Purchaser.
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 the Purchaser or its agents or counsel with any information that constitutes,
or the Company reasonably believes constitutes, material non-public information, unless prior thereto the Purchaser shall have
consented in writing to the receipt of such information and agreed in writing with the Company to keep such information confidential.
The Company understands and confirms that the 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 the Purchaser without the Purchaser’s consent,
the Company hereby covenants and agrees that the Purchaser shall not have any duty of confidentiality to the Company, any of its
Subsidiaries, or any of their respective officers, directors, employees, Affiliates or agents, or a duty to the Company, any of
its Subsidiaries or any of their respective officers, directors, employees, Affiliates or agents, 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 with the delivery of such notice file such notice with the Commission
pursuant to a Current Report on Form 8-K. The Company understands and confirms that the 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 the purposes set
forth in the Prospectus Supplement.
4.8 Indemnification of Purchaser. Subject to the provisions of this Section 4.8, the Company will indemnify and hold the 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
the 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 the Purchaser Parties in any capacity, or any of them or their respective Affiliates, by any stockholder of
the Company who is not an Affiliate of such Purchaser Party, with respect to any of the transactions contemplated by the Transaction
Documents (unless such action is solely based upon a material breach of such Purchaser Party’s representations, warranties
or covenants under the Transaction Documents or any agreements or understandings such Purchaser Party may have with any such stockholder
or any violations by such Purchaser Party of state or federal securities laws or any conduct by such 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, 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 a material conflict on any material issue between the position of the Company and the
position of such Purchaser Party, in which case the Company shall be responsible for the reasonable fees and expenses of no more
than one such separate counsel. The Company will not be liable to any Purchaser Party under this Agreement (y) for any settlement
by a Purchaser Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed;
or (z) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party’s
breach of any of the representations, warranties, covenants or agreements made by such Purchaser Party in this Agreement or in
any of the other Transaction Documents. The indemnification required by this Section 4.8 shall be made by periodic payments of
the amount thereof during the course of the investigation or defense, as and when bills are received or are incurred. 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 Reservation of Common Stock. As of the date hereof, the Company has reserved a sufficient number of shares of Common Stock
for the purpose of enabling the Company to issue Shares pursuant to this Agreement. From and after
the effective time of the initial reverse stock split after the date hereof, the Company shall 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 Warrant Shares pursuant to any exercise of the Warrants.
4.10 Listing of Common Stock. The Company hereby agrees to use reasonable best efforts to maintain the listing or quotation
of the Common Stock on the Trading Market on which it 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 Market and promptly secure the listing of all of the
Shares and Warrant Shares on such Trading Market. 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 commercially reasonable 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 its Common Stock on a Trading Market and will comply in all respects with the Company’s reporting,
filing and other obligations under the bylaws or rules of the Trading Market. The Company agrees to maintain the eligibility of
the Common Stock for 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.
4.11 Subsequent Equity Sales.
(a) From the date hereof until the ninety (90) day anniversary of 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,
a resale registration statement filed in connection with the Company’s merger with DMK Pharmaceuticals, Corp. or filing
a registration statement on Form S-8 in connection with (A) any employee benefit plan or (B) inducement awards.
(b) From the date hereof until the six (6) month anniversary of 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 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 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 canceled; provided, however, that “Variable Rate Transaction” shall not include any transaction contemplated
by this Agreement. The 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. Notwithstanding the foregoing, the Company’s merger with
DMK Pharmaceuticals, Corp. shall not be a “Variable Rate Transaction.”
(c) Notwithstanding the foregoing, this Section 4.11 shall not apply (i) in respect of an Exempt Issuance, except that no Variable
Rate Transaction shall be an Exempt Issuance, and (ii) to the Company’s merger with DMK Pharmaceuticals, Corp.
4.12 Certain Transactions and Confidentiality. The Purchaser 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.
The Purchaser 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, the Purchaser will maintain the confidentiality
of the existence and terms of this transaction (other than as disclosed to its legal and other representatives). Notwithstanding
the foregoing and notwithstanding anything contained in this Agreement to the contrary, the Company expressly acknowledges and
agrees that (i) the Purchaser does not make 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) the Purchaser
shall not 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) the Purchaser shall
not 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 agent, after the issuance of the initial press release
as described in Section 4.4. Notwithstanding the foregoing, in the case that
the Purchaser is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of the Purchaser’s
assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing
other portions of the 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 Capital Changes. Until the one year anniversary of the Closing Date, the Company shall not undertake a reverse or forward
stock split or reclassification of the Common Stock without the prior written consent of the Purchaser, other than a reverse stock
split that is required, in the good faith determination of the Board of Directors, to maintain the listing of the Common Stock
on the Trading Market.
4.14 Exercise Procedures. The form of Notice of Exercise included in the Warrants set forth
the totality of the procedures required of the Purchaser in order to exercise the Warrants. No additional legal opinion, other
information or instructions shall be required of the Purchaser to exercise its 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.
ARTICLE
V.
MISCELLANEOUS
5.1 Termination. This Agreement may be terminated by the Purchaser, as to the Purchaser’s obligations hereunder,
by written notice to the Company, 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 the Purchaser), stamp taxes and other taxes and duties levied in connection with
the delivery of any Securities to the Purchaser.
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 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 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.
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 Purchaser or, in the case of a waiver, by the party against
whom enforcement of any such waived provision is sought. 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 amendment effected in accordance with this Section 5.5
shall be binding upon the 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 the Purchaser (other than by merger). The Purchaser may assign any or all of its rights under this Agreement to any
Person to whom the 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 “Purchaser.”
5.8 No Third-Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective successors
and permitted assigns and is not for the benefit of, nor may any provision hereof be enforced by, any other Person, except as
otherwise set forth in Section 4.8 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 Action or Proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such 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 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 any party shall commence
an Action 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 or Proceeding shall be reimbursed by the non-prevailing 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.
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
e-mail delivery of a “.pdf” format data file (including any electronic signature covered by the U.S. federal ESIGN
Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., xxx.xxxxxxxx.xxx),
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 “.pdf” signature page were an original thereof.
5.12 Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction
to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use
their commercially reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result
as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention
of the parties that they would have executed the remaining terms, provisions, covenants and restrictions without including any
of such that may be hereafter declared invalid, illegal, void or unenforceable.
5.13 Rescission and Withdrawal Right. Notwithstanding anything to the contrary contained in (and without limiting any similar
provisions of) any of the other Transaction Documents, whenever the 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
the 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 Purchaser shall be required to return any shares of Common
Stock subject to any such rescinded exercise notice concurrently with the return to the Purchaser of the aggregate exercise price
paid to the Company for such shares and the restoration of the Purchaser’s right to acquire such shares pursuant to the
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 Purchaser 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 the Purchaser pursuant to any Transaction
Document or the 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 Purchaser’s Obligations and Rights. The Purchaser has been represented by its own separate
legal counsel in its review and negotiation of the Transaction Documents.
5.18 Liquidated Damages. The Company’s obligations to pay any partial liquidated damages or other amounts owing under
the Transaction Documents is a continuing obligation of the Company and shall not terminate until all unpaid partial liquidated
damages and other amounts have been paid notwithstanding the fact that the instrument or security pursuant to which such partial
liquidated damages or other amounts are due and payable shall have been canceled.
5.19 Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any
right required or granted herein shall not be a Business Day, then such action may be taken or such right may be exercised on
the next succeeding Business Day.
5.20 Construction. The parties agree that each of them and/or their respective counsel 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
of the 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.
ADAMIS
PHARMACEUTICALS CORPORATION
|
|
Address
for Notice: |
|
|
|
By:
|
/s/Xxxxx
X. Xxxxxxxxx |
|
|
|
Name: Xxxxx X. Xxxxxxxxx |
|
E-Mail: |
|
Title: Chief Executive Officer |
|
|
With a copy to (which shall not
constitute notice): |
|
|
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE
PAGE FOR PURCHASER FOLLOWS]
[PURCHASER
SIGNATURE PAGES TO ADMP 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: Armistice Capital Master Fund
Ltd.
Signature
of Authorized Signatory of Purchaser: _________________________________
Name
of Authorized Signatory: _______________________________________________
Title
of Authorized Signatory: ________________________________________________
Email
Address of Authorized Signatory: _________________________________________
Address
for Notice to Purchaser:
Address
for Delivery of Securities to Purchaser (if not same as address for notice):
Subscription
Amount: $2,999,250
Shares:
16,500,000
Prefunded
Warrant Shares: 7,500,000
Beneficial Ownership Blocker ☐ 4.99% or ☒ 9.99%
Warrant Shares: 48,000,000
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]