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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date
of report (date of earliest event reported): July 8, 2024
TONIX PHARMACEUTICALS HOLDING CORP.
(Exact
name of registrant as specified in its charter)
Nevada |
001-36019 |
26-1434750 |
(State
or Other Jurisdiction of Incorporation) |
(Commission
File Number) |
(IRS
Employer Identification No.) |
26 Main Street, Chatham, New Jersey 07928
(Address
of principal executive offices) (Zip Code)
Registrant’s telephone number, including area code: (862) 904-8182
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under
any of the following provisions (see General Instruction A.2. below):
☐
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities
registered pursuant to Section 12(b) of the Act:
Title
of each class |
Trading
Symbol(s) |
Name
of each exchange on which registered |
Common
Stock |
TNXP |
The NASDAQ Capital Market |
Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405
of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).
Emerging
growth company ☐
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01 |
Entry into a Material Definitive Agreement. |
On July 9, 2024, Tonix Pharmaceuticals Holding Corp. (the “Company”),
entered into a placement agency agreement (the “Placement Agency Agreement”) with Dawson James Securities Inc. (“Dawson
James” or the “Placement Agent”) pursuant to which the Company engaged Dawson James as the placement agent for a registered
public offering by the Company (the “Offering”), of an aggregate of 3,393,600 shares of the Company’s common stock,
par value $0.001 (“Common Stock”) and pre-funded warrants (“Pre-Funded Warrants” and, together with the Common
Stock, the “Securities”) to purchase up to 3,703,140 shares of Common Stock. The offering price per share of Common Stock
is $0.57 and offering price per Pre-funded Warrant is $0.569.
The
Pre-Funded Warrants are immediately exercisable subject to certain ownership limitations, have an exercise price of $0.001 per share,
and may be exercised at any time until all of the Pre-Funded Warrants are exercised in full.
The
Placement Agent agreed to use its reasonable best efforts to arrange for the sale of the Securities. The Company agreed to pay the Placement
Agent a placement agent fee in cash equal to 7.00% of the gross proceeds from the sale of the Securities in this Offering. The Company
also agreed to reimburse the Placement Agent for all reasonable travel and other out-of-pocket expenses, including the reasonable fees
of legal counsel, not to exceed $100,000.
The
Offering resulted in gross proceeds to the Company of approximately $4.0 million. The Company intends to use the net proceeds from the
Offering for working capital and general corporate purposes, including the preparation of the new drug application relating to the Company’s
Tonmya™ product candidate, and the satisfaction of any portion of the Company’s existing indebtedness.
The
Placement Agency Agreement contains customary representations, warranties and agreements by the Company, customary conditions to closing,
indemnification obligations of the Company, including for liabilities under the Securities Act of 1933, as amended, other obligations
of the parties, and termination provisions.
The Company also entered into
a securities purchase agreement with certain investors (the “Purchase Agreement”). Pursuant to the Purchase Agreement, investors
who purchased five-hundred thousand dollars ($500,000) or more of Common Stock and/or Pre-Funded Warrants were offered the right to participate
in any financing involving the issuance of Common Stock (or Common Stock equivalents) during the 45-day period following the closing,
excluding any private placement transaction raising gross proceeds to the Company of $30.0 million or more. The Purchase Agreement contains
customary representations, warranties and agreements by the Company, customary conditions to closing, indemnification obligations of
the Company, other obligations of the parties, and termination provisions.
The
Company also entered into a warrant agent agreement with the Company’s transfer agent, Vstock Transfer, setting forth certain terms
and conditions with respect to Vstock Transfer’s service as warrant agent for the Pre-Funded Warrants (the “Warrant Agent
Agreement”).
The
Offering was made pursuant to a registration statement on Form S-3 (File No. 333-266982), which was declared effective by the Securities
and Exchange Commission on August 26, 2022.
The Placement Agency Agreement, form of Pre-Funded Warrant, the Warrant
Agent Agreement and the Purchase Agreement are filed as Exhibits 1.01, 4.01, 4.02 and 10.01, respectively, to this Current Report on Form
8-K and are incorporated herein by reference. The above descriptions of the terms of the Placement Agent Agreement, Pre-Funded Warrants,
Warrant Agent Agreement and the Purchase Agreement are qualified in their entirety by reference to such exhibits.
On July 8, 2024, the Company issued a press release announcing the Offering,
and on July 9, 2024, the Company issued a press release announcing the pricing of the Offering. On July 10, 2024, the Company issued a
press release announcing the closing of the Offering. Copies of the press releases are attached hereto as Exhibits 99.01, 99.02 and 99.03
and are incorporated herein by reference.
Item 9.01 |
Financial Statements and Exhibits. |
(d) |
Exhibit
No. |
|
Description. |
|
1.01 |
|
Placement Agency Agreement,
dated July 9, 2024, between Tonix Pharmaceuticals Holding Corp. and Dawson James Securities Inc. |
|
4.01 |
|
Form of Pre-Funded Warrant |
|
4.02 |
|
Warrant Agent Agreement,
dated July 10, 2024, between Tonix Pharmaceuticals Holding Corp. and VStock Transfer |
|
5.01 |
|
Opinion of Brownstein
Hyatt Farber Schreck, LLP |
|
5.02 |
|
Opinion of Lowenstein
Sandler LLP |
|
10.01 |
|
Form of Securities Purchase
Agreement |
|
23.01 |
|
Consent of Brownstein
Hyatt Farber Schreck, LLP (contained in Exhibit 5.01) |
|
23.02 |
|
Consent of Lowenstein
Sandler LLP (contained in Exhibit 5.02) |
|
99.01 |
|
Press Release, dated
July 8, 2024 |
|
99.02 |
|
Press Release, dated
July 9, 2024 |
|
99.03 |
|
Press Release, dated
July 10, 2024 |
|
104 |
|
Cover Page Interactive
Data File (embedded within the Inline XBRL document) |
SIGNATURE
Pursuant
to the requirement of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
|
TONIX
PHARMACEUTICALS HOLDING CORP. |
|
|
|
|
Date:
July 10, 2024 |
By: |
/s/
Bradley Saenger |
|
|
|
Bradley
Saenger |
|
|
Chief
Financial Officer |
Tonix Pharmaceuticals Holding Corp 8-K
Exhibit 1.01
Dawson James Securities, Inc.
101 North Federal Highway
Suite 600
Boca Raton, FL 33432
July 9, 2024
Ladies and Gentlemen:
This letter (this “Agreement”)
constitutes the agreement between Tonix Pharmaceuticals Holding Corp., a Nevada corporation (the “Company”) and Dawson
James Securities, Inc. (“Dawson”) pursuant to which Dawson shall serve as the placement agent (the “Placement
Agent”) (the “Services”), for the Company, on a reasonable “best efforts” basis, in connection
with the proposed offer and placement (the “Offering”) by the Company of its Securities (as defined Section 3 of this
Agreement). The Company expressly acknowledges and agrees that Dawson’s obligations hereunder are on a reasonable “best efforts”
basis only and that the execution of this Agreement does not constitute a commitment by Dawson to purchase the Securities and does not
ensure the successful placement of the Securities or any portion thereof or the success of Dawson placing the Securities. The terms of
the Placement and the Securities shall be mutually agreed upon by the Company and the Purchasers and nothing herein constitutes that the
Placement Agent would have the power or authority to bind the Company or any Purchaser or an obligation for the Company to issue any Securities
or complete the Offering. This Agreement and the documents, if any, executed and delivered by the Company and the Purchasers in connection
with the Offering, including but not limited to the Purchase Agreement (as defined below) shall be collectively referred to herein as
the “Transaction Documents.”
| Appointment of Dawson James Securities, Inc. as Exclusive Placement Agent. |
On the basis of the representations,
warranties, covenants and agreements of the Company herein contained, and subject to all the terms and conditions of this Agreement, the
Company hereby appoints the Placement Agent as its exclusive placement agent in connection with a distribution of its Securities to be
offered and sold by the Company pursuant to a registration statement filed under the Securities Act of 1933, as amended (the “Securities
Act”) on Form S-3 (File No. 333-266982), and Dawson agrees to act as the Company’s exclusive Placement Agent. Pursuant
to this appointment, the Placement Agent will solicit offers for the purchase of or attempt to place all or part of the Securities of
the Company in the proposed Offering. Until the final closing or earlier upon termination of this Agreement pursuant to Section 5 hereof,
the Company shall not, without the prior written consent of the Placement Agent, solicit or accept offers to purchase the Securities other
than through the Placement Agent. The Company acknowledges that the Placement Agent will act as an agent of the Company and use its reasonable
“best efforts” to solicit offers to purchase the Securities from the Company on the terms, and subject to the conditions,
set forth in the Prospectus (as defined below). The Placement Agent shall use commercially reasonable efforts to assist the Company in
obtaining performance by each Purchaser whose offer to purchase Securities has been solicited by the Placement Agent, but the Placement
Agent shall not, except as otherwise provided in this Agreement, be obligated to disclose the identity of any potential purchaser or have
any liability to the Company in the event any such purchase is not consummated for any reason. Under no circumstances will the Placement
Agent be obligated to underwrite or purchase any Securities for its own account and, in soliciting purchases of the Securities, the Placement
Agent shall act solely as an agent of the Company. The Services provided pursuant to this Agreement shall be on an “agency”
basis and not on a “principal” basis.
The Placement Agent will solicit
offers for the purchase of the Securities in the Offering at such times and in such amounts as the Placement Agent deems advisable. The
Company shall have the sole right to accept offers to purchase Securities and may reject any such offer, in whole or in part. The Placement
Agent may retain other brokers or dealers to act as sub-agents on its behalf in connection with the Offering and may pay any sub-agent
a solicitation fee with respect to any Securities placed by it. The Company and Placement Agent shall negotiate the timing and terms of
the Offering and acknowledge that the Offering and the provision of Placement Agent services related to the Offering are subject to market
conditions and the receipt of all required related clearances and approvals.
| Fees; Expenses; Other Arrangements. |
Placement Agent’s
Fee. As compensation for services rendered, the Company shall pay to the Placement Agent in cash by wire transfer in immediately
available funds to an account or accounts designated by the Placement Agent an amount (the “Placement Fee”) equal
to seven percent (7.0%) of the aggregate gross proceeds received by the Company from the sale of the Securities, at the closing (the
“Closing” and the date on which the Closing occurs, the “Closing Date”). Not withstanding the foregoing
sentence, the Placement Fee will be three and a half percent (3.5%) of the aggregate gross proceeds received by the Company from the
sale of any Securities, at the Closing, to the individuals listed on Exhibit A. The Placement Agent may deduct from the net proceeds
of the Offering payable to the Company on the Closing Date the Placement Fee set forth herein to be paid by the Company to the Placement
Agent.
Offering Expenses.
The Company will be responsible for and will pay all expenses relating to the Offering, including, without limitation, (a) all filing
fees and expenses relating to the registration of the Securities with the Commission; (b) all FINRA Public Offering filing fees; (c)
all fees and expenses relating to the listing of the Company’s common stock on the NASDAQ Stock Market; (d) all fees, expenses
and disbursements relating to the registration or qualification of the Securities under the “blue sky” securities laws of
such states and other jurisdictions as Dawson may reasonably designate (including, without limitation, all filing and registration fees,
and the reasonable fees and disbursements of “blue sky” counsel, which will be Placement Agent’s counsel) it being
agreed that such fees and expenses for such “blue sky” work will be $10,000; (e) all fees, expenses and disbursements relating
to the registration, qualification or exemption of the Securities under the securities laws of such foreign jurisdictions as Dawson may
reasonably designate; (f) the costs of all mailing and printing of the Offering documents; (g) transfer and/or stamp taxes, if any, payable
upon the transfer of Securities from the Company to Investors; (h) the fees and expenses of the Company’s accountants; and (i)
“road show” expenses, diligence expenses, and legal fees of Dawson’s counsel and not to exceed in the aggregate $100,000.
The Placement Agent may deduct from the net proceeds of the Offering payable to the Company on the Closing Date the expenses set forth
herein to be paid by the Company to the Placement Agent, provided, however, that in the event that the Offering is terminated,
the Company agrees to reimburse the Placement Agent to the extent required by Section 5 hereof.
| Description of the Offering. |
The Securities to be offered
directly to various investors (each, an “Investor” or “Purchaser” and, collectively, the “Investors”
or the “Purchasers”) in the Offering shall be shares of common stock, par value $0.001 per share (“Common
Stock” or “Shares”), or pre-funded warrants (in lieu of Shares) to purchase a shares of Common Stock (“Pre-Funded
Warrants” and together with the Shares, the “Securities”). The purchase price shall be $0.57 per Share and $0.569 per
Pre-Funded Warrant (the “Purchase Price”). The form of Pre-Funded Warrant is attached hereto as Exhibit B. If
the Company shall default in its obligations to deliver Securities to a Purchaser whose offer it has accepted and who has tendered payment,
the Company shall indemnify and hold the Placement Agent harmless against any loss, claim, damage or expense arising from or as a result
of such default by the Company under this Agreement.
| Delivery and Payment; Closing. |
Unless otherwise agreed in
writing by the Placement Agent and the Company, settlement of the Securities purchased by an Investor shall be made by 5:00 p.m. on the
Closing Date by wire transfer from the Placement Agent in federal (same day) funds, payable to the order of the Company after electronic
delivery of the Securities via the DWAC system (or such other method agreed to by the parties) in accordance with the Placement Agent’s
instructions as requested in writing prior to the Closing Date. The term “Business Day” means any day other than a
Saturday, a Sunday or a legal holiday or a day on which banking institutions are authorized or obligated by law to close in New York,
New York.
The Closing shall occur at
such place as shall be agreed upon by the Placement Agent and the Company. In the absence of an agreement to the contrary, each Closing
shall take place at the offices of ArentFox Schiff LLP, 1717 K Street, NW, Washington, DC 20006. Deliveries of the documents with respect
to the purchase of the Securities, if any, shall be made at the offices of ArentFox Schiff LLP, 1717 K Street, NW, Washington, DC 20006
on the Closing Date. All actions taken at a Closing shall be deemed to have occurred simultaneously.
| Term and Termination of Agreement. |
The term of this Agreement
will commence upon the execution of this Agreement and will terminate at the earlier of the Closing of the Offering or 11:59 p.m. (New
York Time) on the 30th calendar day after the date hereof. Notwithstanding anything to the contrary contained herein, any provision
in this Agreement concerning or relating to confidentiality, indemnification, contribution, advancement, the Company’s representations
and warranties and the Company’s obligations to pay fees and reimburse expenses will survive any expiration or termination of this
Agreement. If any condition specified in Section 8 is not satisfied when and as required to be satisfied, this Agreement may be terminated
by the Placement Agent by notice to the Company at any time on or prior to a Closing Date, which termination shall be without liability
on the part of any party to any other party, except that those portions of this Agreement specified in Section 19 shall at all times be
effective and shall survive such termination. Notwithstanding anything to the contrary in this Agreement, in the event that this
Agreement shall not be carried out for any reason whatsoever, within the time specified herein or any extensions thereof pursuant to the
terms herein, the Company shall be obligated to pay to the Placement Agent the expenses provided for in Section 2.B. above and upon demand
the Company shall pay the full amount thereof to the Placement Agent.
Nothing in this Agreement
shall be construed to limit the ability of the Placement Agent, its officers, directors, employees, agents, associated persons and any
individual or entity “controlling,” controlled by,” or “under common control” with the Placement Agent (as
those terms are defined in Rule 405 under the Securities Act) to conduct its business including without limitation the ability to pursue,
investigate, analyze, invest in, or engage in investment banking, financial advisory or any other business relationship with any 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.
| Representations, Warranties and Covenants of the Company. |
As of the date and time of
the execution of this Agreement, the Closing Date and the Initial Sale Time (as defined herein), the Company represents, warrants and
covenants to the Placement Agent, other than as disclosed in any of its filings with the Securities and Exchange Commission (the “Commission”),
that:
| The Company has filed with the Commission
a registration statement on Form S-3 (File No. 333- 266982) including a related prospectus (the “Base Prospectus”), for the
registration of certain securities (the “Shelf Securities”), including the Securities, under the Securities Act and
the rules and regulations thereunder (the “Securities Act Regulations”). The registration statement has been declared
effective under the Securities Act by the Commission. The “Registration Statement,” as of any time, means such registration
statement as amended by any post-effective amendments thereto to such time, including the exhibits and any schedules thereto at such
time, the documents incorporated or deemed to be incorporated by reference therein at such time pursuant to Form S-3 under the Securities
Act and the documents otherwise deemed to be a part thereof as of such time pursuant to Rule 430A (“Rule 430A”) or
Rule 430B under the Securities Act Regulations (“Rule 430B”); provided, however, that the “Registration
Statement” without reference to a time means such registration statement as amended by any post-effective amendments thereto as
of the time of the first contract of sale for the Securities, which time shall be considered the “new effective date” of
such registration statement with respect to the Securities within the meaning of paragraph (f)(2) of Rule 430B, including the exhibits
and schedules thereto as of such time, the documents incorporated or deemed incorporated by reference therein at such time pursuant to
Form S-1 under the Securities Act and the documents otherwise deemed to be a part thereof as of such time pursuant to Rule 430A or Rule
430B. Any registration statement filed pursuant to Rule 462(b) of the Securities Act Regulations is hereinafter called the “Rule
462(b) Registration Statement,” and after such filing the term “Registration Statement” shall include the Rule
462(b) Registration Statement. The term “Preliminary Prospectus” means any preliminary form of the Prospectus, including
any preliminary prospectus supplement specifically related to the Securities filed with the Commission by the Company with the consent
of the Placement Agent. |
| All references in this Agreement to financial
statements and schedules and other information which is “contained,” “included” or “stated” (or other
references of like import) in the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to include all
such financial statements and schedules and other information incorporated or deemed incorporated by reference in the Registration Statement,
such Preliminary Prospectus or the Prospectus, as the case may be, prior to the execution and delivery of this Agreement; and all references
in this Agreement to amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed
to include the filing of any document under the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
and the rules and regulations thereunder (the “Exchange Act Regulations”), incorporated or deemed to be incorporated
by reference in the Registration Statement, such Preliminary Prospectus or the Prospectus, as the case may be, at or after the execution
and delivery of this Agreement. |
| The term “Disclosure Package”
means (i) the Preliminary Prospectus, as most recently amended or supplemented immediately prior to the Initial Sale Time (as defined
herein), and (ii) the Issuer Free Writing Prospectuses (as defined below), if any, identified in Schedule I hereto. |
| The term “Issuer Free Writing
Prospectus” means any issuer free writing prospectus, as defined in Rule 433 of the Securities Act Regulations. The term “Free
Writing Prospectus” means any free writing prospectus, as defined in Rule 405 of the Securities Act Regulations. |
| Any Preliminary Prospectus when filed with the Commission, and the Registration
Statement as of each effective date and as of the date hereof, complied or will comply, and the Prospectus and any further amendments
or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus will, when they become effective or are filed
with the Commission, as the case may be, comply, in all material respects, with the requirements of the Securities Act and the Securities
Act Regulations; and the documents incorporated by reference in the Registration Statement, any Preliminary Prospectus or the Prospectus
complied, and any further documents so incorporated will comply, when filed with the Commission, in all material respects to the requirements
of the Exchange Act and Exchange Act Regulations. |
| The issuance by the Company of the Securities has been registered under
the Securities Act. The Securities will be issued pursuant to the Registration Statement and each of the Securities will be freely transferable
and freely tradable by each of the Investors without restriction, unless otherwise restricted by applicable law or regulation. |
Stock Exchange Listing. The Common Stock is approved for listing on The NASDAQ Capital Market (the “Exchange”)
and the Company has taken no action designed to, or likely to have the effect of, delisting the shares of Common Stock from the Exchange,
nor has the Company, except as otherwise disclosed in the DisclosurePackage, received any notification that the Exchange is contemplating
terminating such listing.
No Stop Orders, etc. Neither the Commission nor, to the Company's knowledge, any state regulatory authority has issued any
order preventing or suspending the use of the Registration Statement, any Preliminary Prospectus or the Prospectus or has instituted or,
to the Company's knowledge, threatened to institute, any proceedings with respect to such an order. The Company has complied with each
request (if any) from the Commission for additional information.
Subsidiaries. The Company's subsidiaries have been duly incorporated and are validly existing as entities in good standing
under the laws of jurisdictions of their respective organization, with power and authority to own, lease and operate their respective
properties and conduct their respective businesses as described in the Preliminary Prospectus, and have been duly qualified as foreign
corporations for the transaction of business and are in good standing under the laws of each other jurisdictions in which they own or
lease properties or conduct any business so as to require such qualification, except where the failure so to qualify or be in good standing
would not have a Material Adverse Change (as defined below); all of the issued and outstanding capital stock (or other ownership interests)
of such subsidiaries has been duly and validly authorized and issued, is fully paid and non-assessable and is owned, directly and indirectly,
by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. Unless otherwise set forth,
all references in this Section 7 to the “Company” shall include references to all such subsidiaries.
Disclosures in Registration
Statement.
| i. | Compliance with Securities Act and 10b-5 Representation. |
Each of the Registration Statement and any post-effective amendment thereto, at the time it became effective, complied in all material
respects with the requirements of the Securities Act and the Securities Act Regulations. The Preliminary Prospectus and the Prospectus,
at the time each was or will be filed with the Commission, complied or will comply in all material respects with the requirements of the
Securities Act and the Securities Act Regulations. The Preliminary Prospectus delivered to the Placement Agent for use in connection with
this Offering and the Prospectus was or will be identical to the electronically transmitted copies thereof filed with the Commission pursuant
to EDGAR, except to the extent permitted by Regulation S-T.
None of the Registration Statement, any amendment thereto, or the Preliminary Prospectus, as of 5:00 p.m. (Eastern time) on July
8, 2024 (the “Initial Sale Time”), and at the Closing Date, contained, contains or will contain an untrue statement
of a material fact or omitted, omits or will omit to state a material fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation and warranty shall not apply to statements made or statements omitted
in reliance upon and in conformity with written information furnished to the Company with respect to the Placement Agent by the Placement
Agent expressly for use in the Registration Statement or any amendment thereof or supplement thereto. The parties acknowledge and agree
that such information provided by or on behalf of any Placement Agent consists solely of the following disclosure contained in the following
paragraphs in the “Plan of Distribution” section of the Prospectus: (i) the name of the Placement Agent, and (ii) the information
under the subsection “Fees and Expenses” (the “Placement Agent’s Information”).
The Disclosure Package, as of the Initial Sale Time and at the Closing Date, did not, does not and will not include an untrue statement
of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and each Issuer Free Writing Prospectus does not conflict with the information contained in
the Registration Statement, any Preliminary Prospectus, or the Prospectus, and each such Issuer Free Writing Prospectus, as supplemented
by and taken together with the Preliminary Prospectus as of the Initial Sale Time, did not include an untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were
made, not misleading; provided, however, that this representation and warranty shall not apply to statements made or statements
omitted in reliance upon and in conformity with written information furnished to the Company with respect to the Placement Agent by the
Placement Agent expressly for use in the Registration Statement, the Preliminary Prospectus or the Prospectus or any amendment thereof
or supplement thereto. The parties acknowledge and agree that such information provided by or on behalf of any Placement Agent consists
solely of the Placement Agent’s Information; and
Neither the Prospectus nor any amendment or supplement thereto, as of its issue date, at the time of any filing with the Commission
pursuant to Rule 424(b), or at the Closing Date, included, includes or will include an untrue statement of a material fact or omitted,
omits or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that this representation and warranty shall not apply to the Placement
Agent's Information.
| Disclosure of Agreements. The agreements and documents described in the Registration Statement,
the Disclosure Package and the Prospectus conform in all material respects to the descriptions thereof contained therein and there are
no agreements or other documents required by the Securities Act and the Securities Act Regulations to be described in the Registration
Statement, the Disclosure Package and the Prospectus or to be filed with the Commission as exhibits to the Registration Statement, that
have not been so described or filed. Each agreement or other instrument (however characterized or described) to which the Company is a
party or by which it is or may be bound or affected and (i) that is referred to in the Registration Statement, the Disclosure Package
and the Prospectus, and (ii) is material to the Company's business, has been duly authorized and validly executed by the Company, is in
full force and effect in all material respects and is enforceable against the Company and, to the Company's knowledge, the other parties
thereto, in accordance with its terms, except (x) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar
laws affecting creditors' rights generally, (y) as enforceability of any indemnification or contribution provision may be limited
under the federal and state securities laws, and (z) that the remedy of specific performance and injunctive and other forms of equitable
relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
None of such agreements or instruments has been assigned by the Company, and neither the Company nor, to the Company's knowledge, any
other party is in default thereunder and, to the Company's knowledge, no event has occurred that, with the lapse of time or the giving
of notice, or both, would constitute a default thereunder, except as disclosed in the Registration Statement, the Disclosure Package and
the Prospectus. To the Company's knowledge, performance by the Company of the material provisions of such agreements or instruments will
not result in a violation of any existing applicable law, rule, regulation, judgment, order or decree of any governmental agency or court,
domestic or foreign, having jurisdiction over the Company or any of its assets or businesses (each, a “Governmental Entity”),
including, without limitation, those relating to environmental laws and regulations. |
| Prior Securities Transactions. For the past three completed fiscal years through the date hereof, no securities
of the Company have been sold by the Company or, to the Company’s knowledge, by or on behalf of, or for the benefit of, any person
or persons controlling, controlled by or under common control with the Company, except as disclosed in the Registration Statement, the
Disclosure Package and the Preliminary Prospectus or, with respect to parties other than the Company, other filings by such other persons
with the Commission. |
| Regulations. The disclosures in the Registration Statement, the Disclosure Package and
the Prospectus concerning the effects of federal, state, local and all foreign regulation on the Offering and the Company's business as
currently contemplated are correct in all material respects and no other such regulations are required to be disclosed in the Registration
Statement, the Disclosure Package and the Prospectus which are not so disclosed. |
| Changes After Dates in Registration Statement. |
| (a) | No Material Adverse Change. Since the respective dates as of which information is given in the
Registration Statement, the Disclosure Package and the Prospectus, except as otherwise specifically stated therein: (i) there has been
no material adverse change in the financial position or results of operations of the Company, nor any change or development that, singularly
or in the aggregate, would involve a material adverse change, in or affecting the condition (financial or otherwise), results of operations,
business, assets or prospects of the Company (a “Material Adverse Change”); (ii) there have been no material transactions
entered into by the Company, other than as contemplated pursuant to this Agreement; and (iii) no officer or director of the Company has
resigned from any position with the Company. |
| | Recent Securities Transactions, etc. Subsequent to the respective dates as of which information is given in
the Registration Statement, the Disclosure Package and the Prospectus, and except as may otherwise be indicated or contemplated herein
or disclosed in the Registration Statement, the Disclosure Package and the Prospectus, the Company has not: (i) issued any securities
(other than (A) grants under any stock compensation or employee stock purchase plans and (B) shares of common stock issued upon exercise
or conversion of options, warrants or convertible securities described in the Registration Statement, the Disclosure Package and the Prospectus)
or incurred any liability or obligation, direct or contingent, for borrowed money; or (ii) declared or paid any dividend or made any other
distribution on or in respect to its capital stock. |
Independent Accountants. To the knowledge of the Company, EisnerAmper LLP, during such time as it was engaged by the Company
(the “Auditors”), has been an independent registered public accounting firm as required by the Securities Act and the
Securities Act Regulations and the Public Company Accounting Oversight Board. During such time period in which the Auditors served as
the Company's independent registered public accounting firm the Auditors did not or have not, during the periods covered by the financial
statements included in the Registration Statement, the Disclosure Package and the Prospectus, provided to the Company any non-audit services,
as such term is used in Section 10A(g) of the Exchange Act.
SEC Reports; Financial Statements, etc. The Company has complied in all material respects with requirements to file all
reports, schedules, forms, statements and other documents required to be filed by it under the Securities Act and the Exchange Act, including
pursuant to Section 13(a) or 15(d) thereof (the foregoing materials, including the exhibits thereto and documents incorporated by reference
therein, being collectively referred to herein as the “SEC Reports”) on a timely basis or has received a valid extension
of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As of their respective dates,
the SEC Reports complied in all material respects with the requirements of the Securities Act and the Exchange Act and the rules and regulations
of the Commission promulgated thereunder, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The financial statements of the Company included in the SEC Reports comply in
all material respects with applicable accounting requirements and the rules and regulations of the Commission with respect thereto as
in effect at the time of filing. Such financial statements have been prepared in accordance with United States generally accepted accounting
principles applied on a consistent basis during the periods involved (“GAAP”), except as may be otherwise specified
in such financial statements or the notes thereto and except that unaudited financial statements may not contain all footnotes required
by GAAP, and fairly present in all material respects the financial position of the Company and its consolidated subsidiaries as of and
for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements,
to normal year-end audit adjustments that are not expected to be material in the aggregate. The financial statements, including the notes
thereto and supporting schedules included in the Registration Statement, the Disclosure Package and the Prospectus, fairly present in
all material respects the financial position and the results of operations of the Company at the dates and for the periods to which they
apply; and such financial statements have been prepared in conformity with GAAP, consistently applied throughout the periods involved
(provided that unaudited interim financial statements are subject to year-end audit adjustments that are not expected to be material in
the aggregate and do not contain all footnotes required by GAAP); and the supporting schedules included in the Registration Statement
present fairly in all material respects the information required to be stated therein. Except as included therein, no historical or pro
forma financial statements are required to be included in the Registration Statement, the Disclosure Package or the Prospectus under the
Securities Act or the Securities Act Regulations. The pro forma and pro forma as adjusted financial information and the related notes,
if any, included in the Registration Statement, the Disclosure Package and the Prospectus have been properly compiled and prepared in
all material respects in accordance with the applicable requirements of the Securities Act and the Securities Act Regulations and present
fairly in all material respects the information shown therein, and the assumptions used in the preparation thereof are reasonable and
the adjustments used therein are appropriate to give effect to the transactions and circumstances referred to therein. All disclosures
contained in the Registration Statement, the Disclosure Package or the Prospectus regarding “non-GAAP financial measures”
(as such term is defined by the rules and regulations of the Commission), if any, comply with Regulation G of the Exchange Act and Item
10 of Regulation S-K of the Securities Act, to the extent applicable. Each of the Registration Statement, the Disclosure Package and the
Prospectus discloses all material off-balance sheet transactions, arrangements, obligations (including contingent obligations), and other
relationships of the Company with unconsolidated entities or other persons that may have a material current or future effect on the Company's
financial condition, changes in financial condition, results of operations, liquidity, capital expenditures, capital resources, or significant
components of revenues or expenses. Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, (a)
the Company has not incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions
other than in the ordinary course of business, (b) the Company has not declared or paid any dividends or made any distribution of any
kind with respect to its capital stock, (c) there has not been any change in the capital stock of the Company (other than (i) grants under
any stock compensation plan and (ii) shares of common stock issued upon exercise or conversion of option, warrants or convertible securities
described in the Registration Statement, the Disclosure Package and the Prospectus), and (d) there has not been any Material Adverse Change
in the Company's long-term or short-term debt.
Authorized Capital; Options, etc. The Company had, at the date or dates indicated in the Registration Statement, the Disclosure
Package and the Prospectus, the duly authorized, issued and outstanding capitalization as set forth therein. Based on the assumptions
stated in the Registration Statement, the Disclosure Package and the Prospectus, the Company will have on the Closing Date the adjusted
stock capitalization set forth therein. Except as set forth in, or contemplated by, the Registration Statement, the Disclosure Package
and the Prospectus, on the Effective Date, as of the Initial Sale Time, on the Closing Date, there will be no stock options, warrants,
or other rights to purchase or otherwise acquire any authorized, but unissued shares of Common Stock of the Company or any security convertible
or exercisable into shares of Common Stock of the Company, or any contracts or commitments to issue or sell shares of Common Stock or
any such options, warrants, rights or convertible securities.
Valid Issuance of Securities, etc.
i. Outstanding Securities. All issued and outstanding securities of the Company issued prior to the transactions contemplated
by this Agreement have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights
of rescission with respect thereto, and are not subject to personal liability by reason of being such holders; and except as disclosed
in the Registration Statement, the Disclosure Package and the Prospectus, none of such securities were issued in violation of the preemptive
rights of any holders of any security of the Company or similar contractual rights granted by the Company. The authorized shares of Common
Stock, Company preferred stock and other outstanding securities conform in all material respects to all statements relating thereto contained
in the Registration Statement, the Disclosure Package and the Prospectus. The offers and sales of the outstanding shares of Common Stock
were at all relevant times either registered under the Securities Act and the applicable state securities or “blue sky” laws
or, based in part on the representations and warranties of the purchasers of such shares, exempt from such registration requirements.
Securities Sold Pursuant to this Agreement. The Securities have been duly authorized for issuance and sale and, when issued
and paid for, will be validly issued, fully paid and non-assessable; to the Company’s knowledge, the holders thereof are not and
will not be subject to personal liability by reason of being such holders; the Common Stock is not and will not be subject to the preemptive
rights of any holders of any security of the Company or similar contractual rights granted by the Company. All corporate action required
to be taken for the authorization, issuance and sale of the Securities have been duly and validly taken; the Common Stock underlying the
Pre-Funded Warrants has been duly authorized and reserved for issuance by all necessary corporate action on the part of the Company and
when paid for and issued in accordance with the Pre-Funded Warrants, such Common Stock will be validly issued, fully paid and non-assessable;
the holders thereof are not and will not be subject to personal liability by reason of being such holders; and such shares of Common Stock
are not and will not be subject to the preemptive rights of any holders of any security of the Company or similar contractual rights granted
by the Company. The Securities conform in all material respects to all statements with respect thereto contained in the Registration Statement,
the Disclosure Package and the Prospectus.
Reserved.
Validity and Binding Effect of Agreements. This Agreement and the Transaction Documents have been duly and validly authorized
by the Company, and, when executed and delivered, will constitute, the valid and binding agreements of the Company, enforceable against
the Company in accordance with its respective terms, except: (i) as such enforceability may be limited by bankruptcy, insolvency, reorganization
or similar laws affecting creditors' rights generally; (ii) as enforceability of any indemnification or contribution provision may be
limited under the federal and state securities laws; and (iii) that the remedy of specific performance and injunctive and other forms
of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may
be brought.
No Conflicts, etc. The execution, delivery and performance by the Company of this Agreement, the Transaction Documents and
all ancillary documents, the consummation by the Company of the transactions herein and therein contemplated and the compliance by the
Company with the terms hereof and thereof do not and will not, with or without the giving of notice or the lapse of time or both: (i)
result in a material breach of, or conflict with any of the terms and provisions of, or constitute a material default under, or result
in the creation, modification, termination or imposition of any lien, charge or encumbrance upon any property or assets of the Company
pursuant to the terms of any agreement or instrument to which the Company is a party; (ii) result in any violation of the provisions of
the Company's Certificate of Incorporation (as the same may be amended or restated from time to time, the “Charter”)
or the by-laws of the Company (as the same may be amended or restated from time to time, the “Bylaws”); or (iii) violate
any existing applicable law, rule, regulation, judgment, order or decree of any Governmental Entity as of the date hereof.
Reserved.
No Defaults; Violations. No material default exists in the due performance and observance of any term, covenant or condition
of any material license, contract, indenture, mortgage, deed of trust, note, loan or credit agreement, or any other agreement or instrument
evidencing an obligation for borrowed money, or any other material agreement or instrument to which the Company is a party or by which
the Company may be bound or to which any of the properties or assets of the Company is subject. The Company is not (i) in violation of
any term or provision of its Charter or Bylaws, or (ii) in violation of any franchise, license, permit, applicable law, rule, regulation,
judgment or decree of any Governmental Entity applicable to the Company.
Corporate Power; Licenses; Consents.
i. Except as described in the Registration Statement, the Disclosure Package and the Prospectus, the Company has all requisite corporate
power and authority, and has all necessary authorizations, approvals, orders, licenses, certificates and permits of and from all governmental
regulatory officials and bodies that it needs as of the date hereof to conduct its business purpose as described in the Registration Statement,
the Disclosure Package and the Prospectus.
Company has all corporate
power and authority to enter into this Agreement and to carry out the provisions and conditions hereof, and all consents, authorizations,
approvals and orders required in connection therewith have been obtained. No consent, authorization or order of, and no filing with,
any court, government agency or other body is required for the valid issuance, sale and delivery of the Common Stock, and the consummation
of the transactions and agreements contemplated by this Agreement and as contemplated by the Registration Statement, the Disclosure Package
and the Prospectus, except with respect to applicable federal and state securities laws and the rules and regulations of the Financial
Industry Regulatory Authority, Inc. (“FINRA”).
Litigation; Governmental Proceedings. There is no material action, suit, proceeding, inquiry, arbitration, investigation,
litigation or governmental proceeding pending or, to the Company's knowledge, threatened against, or involving the Company or, to the
Company's knowledge, any executive officer or director which has not been disclosed in the Registration Statement, the Disclosure Package
and the Prospectus or in connection with the Company's listing application for the additional listing of the Common Stock on the Exchange.
Good Standing. The Company has been duly organized and is validly existing as a corporation and is in good standing under
the laws of the State of Nevada as of the date hereof, and is duly qualified to do business and is in good standing in each other jurisdiction
in which its ownership or lease of property or the conduct of business requires such qualification, except where the failure to qualify,
singularly or in the aggregate, would not have or reasonably be expected to result in a Material Adverse Change.
Insurance. The Company carries or is entitled to the benefits of insurance, with, to the Company's knowledge, reputable
insurers, and in such amounts and covering such risks which the Company believes are reasonably adequate, and all such insurance is in
full force and effect. The Company has no reason to believe that it will not be able (i) to renew its existing insurance coverage as and
when such policies expire or (ii) to obtain comparable coverage from similar institutions as may be necessary or appropriate to conduct
its business as now conducted and at a cost that would not result in a Material Adverse Change.
Transactions Affecting Disclosure to FINRA.
i. Finder's Fees. Except as described in the Registration Statement, the Disclosure Package and the Prospectus, there are no
claims, payments, arrangements, agreements or understandings relating to the payment of a finder's, consulting or origination fee by the
Company or any executive officer or director of the Company (each an, “Insider”) with respect to the sale of the Securities
hereunder or any other arrangements, agreements or understandings of the Company or, to the Company's knowledge, any of its stockholders
that may affect the Placement Agent’s compensation, as determined by FINRA.
Payments Within Twelve (12) Months. Except as described in the Registration Statement, the Disclosure Package and the Prospectus,
the Company has not made any direct or indirect payments (in cash, securities or otherwise) to: (i) any person, as a finder's fee, consulting
fee or otherwise, in consideration of such person raising capital for the Company or introducing to the Company persons who raised or
provided capital to the Company; (ii) any FINRA member; or (iii) any person or entity that has any direct or indirect affiliation or association
with any FINRA member, within the twelve (12) months prior to the date hereof, other than (A) the payment to the Placement Agent as provided
hereunder in connection with the Offering, and (B) other payments to the Placement Agent under other engagement letters.
Use of Proceeds.
None of the net proceeds of the Offering will be paid by the Company to any participating FINRA member or its affiliates, except as specifically
authorized herein.
FINRA Affiliation.
There is no (i) officer or director of the Company, (ii) to the Company’s knowledge, beneficial owner of 5% or more of any class
of the Company's securities or (iii) to the Company’s knowledge, beneficial owner of the Company's unregistered equity securities
which were acquired during the 180-day period immediately preceding the filing of the Registration Statement that is an affiliate or
associated person of a FINRA member participating in the Offering (as determined in accordance with the rules and regulations of FINRA).
Information.
To the Company's knowledge, all information provided by the Company's officers and directors in their FINRA Questionnaires to counsel
to the Placement Agent specifically for use by counsel to the Placement Agent in connection with its Public Offering System filings (and
related disclosure) with FINRA is true, correct and complete in all material respects.
Foreign Corrupt Practices Act. Neither the Company nor, to the Company's knowledge, any director, officer, agent, employee
or affiliate of the Company or any other person acting on behalf of the Company, has, directly or indirectly, given or agreed to give
any money, gift or similar benefit (other than legal price concessions to customers in the ordinary course of business) to any customer,
supplier, employee or agent of a customer or supplier, or official or employee of any Governmental Entity or any political party or candidate
for office (domestic or foreign) or other person who was, is, or may be in a position to help or hinder the business of the Company (or
assist it in connection with any actual or proposed transaction) that would subject the Company to any damage or penalty in any civil,
criminal or governmental litigation or proceeding. The Company has taken reasonable steps to ensure that its accounting controls and procedures
are sufficient to cause the Company to comply in all material respects with the Foreign Corrupt Practices Act of 1977, as amended.
Compliance with OFAC. Neither of the Company nor, to the Company's knowledge, any director, officer, agent, employee or
affiliate of the Company, is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S.
Department of the Treasury (“OFAC”), and the Company will not knowingly, directly or indirectly, use the proceeds of
the Offering hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other
person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
Money Laundering Laws.
The operations of the Company are and have been conducted at all times in compliance in all material respects with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering
statutes of all applicable jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines,
issued, administered or enforced by any Governmental Entity (collectively, the “Money Laundering Laws”); and no action,
suit or proceeding by or before any Governmental Entity involving the Company with respect to the Money Laundering Laws is pending or,
to the knowledge of the Company, threatened.
Officers' Certificate.
Any certificate signed by any duly authorized officer of the Company and delivered to you or to Placement Agent Counsel shall be deemed
a representation and warranty by the Company to the Placement Agent as to the matters covered thereby.
Related Party Transactions.
There are no business relationships or related party transactions involving the Company or any other person required to be described
in the Registration Statement, the Disclosure Package and the Prospectus that have not been described as required.
Board of Directors.
The qualifications of the persons serving as board members and the overall composition of the board comply in all material respects with
the Exchange Act, the Exchange Act Regulations, the Sarbanes-Oxley Act of 2002 and the rules promulgated thereunder (the “Sarbanes-Oxley
Act”) applicable to the Company and the listing rules of the Exchange. At least one member of the Audit Committee of the Board
of Directors of the Company qualifies as an “audit committee financial expert,” as such term is defined under Regulation
S-K and the listing rules of the Exchange. In addition, at least a majority of the persons serving on the Board of Directors qualify
as “independent,” as defined under the listing rules of the Exchange.
Sarbanes-Oxley Compliance.
i. The Company has
developed and currently maintains disclosure controls and procedures that will comply with Rule 13a-15 or 15d-15 under the Exchange Act
Regulations applicable to it, and such controls and procedures are effective to ensure that all material information concerning the Company
will be made known on a timely basis to the individuals responsible for the preparation of the Company's Exchange Act filings and other
public disclosure documents.
The Company is, or
at the Initial Sale Time and on the Closing Date will be, in material compliance with the provisions of the Sarbanes-Oxley Act applicable
to it, and has implemented or will implement such programs and taken reasonable steps to ensure the Company's future compliance (not
later than the relevant statutory and regulatory deadlines therefor) with all of the material provisions of the Sarbanes-Oxley Act.
Accounting Controls.
The Company maintains systems of “internal control over financial reporting” (as defined under Rules 13a-15 and 15d-15 under
the Exchange Act Regulations) that comply in all material respects with the requirements of the Exchange Act and have been designed by,
or under the supervision of, its principal executive and principal financial officers, or persons performing similar functions, to provide
reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes
in accordance with GAAP, including, but not limited to, internal accounting controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with management's general or specific authorizations; (ii) transactions are recorded
as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability; (iii) access
to assets is permitted only in accordance with management's general or specific authorization; and (iv) the recorded accountability for
assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, the Company is not aware of any material
weaknesses in its internal controls. The Auditors and the Audit Committee of the Board of Directors of the Company have been advised
of: (i) all significant deficiencies and material weaknesses, if any, in the design or operation of internal controls over financial
reporting which are known to the Company's management and that have adversely affected or are reasonably likely to adversely affect the
Company' ability to record, process, summarize and report financial information; and (ii) any fraud, if any, known to the Company's management,
whether or not material, that involves management or other employees who have a significant role in the Company's internal controls over
financial reporting.
No Investment Company
Status. The Company is not and, after giving effect to the Offering and the application of the proceeds thereof as described in the
Registration Statement, the Disclosure Package and the Prospectus, will not be, required to register as an “investment company,”
as defined in the Investment Company Act of 1940, as amended.
No Labor Disputes.
No labor dispute with the employees of the Company exists or, to the knowledge of the Company, is imminent, except where such dispute
would not be expected to have a Material Adverse Change.
Intellectual Property
Rights. To the Company's knowledge, the Company has, or can acquire on reasonable terms, ownership of and/or license to, or otherwise
has the right to use, all inventions, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), patents and patent rights trademarks, service marks and trade names, copyrights, (collectively “Intellectual
Property”) material to carrying on its business as described in the Prospectus. The Company has not received any correspondence
relating to (A) infringement or misappropriation of, or conflict with, any Intellectual Property of a third party; (B) asserted
rights of others with respect to any Intellectual Property of the Company; or (C) assertions that any Intellectual Property of the Company
is invalid or otherwise inadequate to protect the interest of the Company, that in each case (if the subject of any unfavorable decision,
ruling or finding), individually or in the aggregate, would have or would reasonably be expected to have a Material Adverse Change. There
are no third parties who have been able to establish any material rights to any Intellectual Property, except for the retained rights
of the owners or licensors of any Intellectual Property that is licensed to the Company. There is no pending or, to the Company's knowledge,
threatened action, suit, proceeding or claim by others: (A) challenging the validity, enforceability or scope of any Intellectual Property
of the Company or (B) challenging the Company's rights in or to any Intellectual Property or (C) that the Company materially infringes,
misappropriates or otherwise violates or conflicts with any Intellectual Property or other proprietary rights of others. The Company
has complied in all material respects with the terms of each agreement described in the Registration Statement, Disclosure Package or
Prospectus pursuant to which any Intellectual Property is licensed to the Company, and all such agreements related to products currently
made or sold by the Company, or to product candidates currently under development, are in full force and effect. All patents issued in
the name of, or assigned to, the Company, and all patent applications made by or on behalf of the Company (collectively, the “Company
Patents”) have been duly and properly filed. The Company is not aware of any material information that was required to be disclosed
to the United States Patent and Trademark Office (the “PTO”) but that was not disclosed to the PTO with respect to
any issued Company Patent, or that is required to be disclosed and has not yet been disclosed in any pending application in the Company
Patents and that would preclude the grant of a patent on such application. To the Company's knowledge, the Company is the sole owner
of the Company Patents.
Taxes. The Company
has filed all returns (as hereinafter defined) required to be filed with taxing authorities prior to the date hereof or has duly obtained
extensions of time for the filing thereof. The Company has paid all taxes (as hereinafter defined) shown as due on such returns that
were filed and has paid all taxes imposed on or assessed against the Company, except for such exceptions as could not be expected, individually
or in the aggregate, to have a Material Adverse Change. The provisions for taxes payable, if any, shown on the financial statements filed
with or as part of the Registration Statement are sufficient for all accrued and unpaid taxes, whether or not disputed, and for all periods
to and including the dates of such consolidated financial statements. Except as disclosed in writing to the Placement Agent, (i) no issues
have been raised (and are currently pending) by any taxing authority in connection with any of the returns or taxes asserted as due from
the Company, and (ii) no waivers of statutes of limitation with respect to the returns or collection of taxes have been given by or requested
from the Company. The term “taxes” mean all federal, state, local, foreign and other net income, gross income, gross receipts,
sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, excise,
severance, stamp, occupation, premium, property, windfall profits, customs, duties or other taxes, fees, assessments or charges of any
kind whatever, together with any interest and any penalties, additions to tax or additional amounts with respect thereto. The term “returns”
means all returns, declarations, reports, statements and other documents required to be filed in respect to taxes.
Employee Benefit Laws.
To the extent applicable, the operations of the Company and its subsidiaries are and have been conducted at all times in material compliance
with the Employee Retirement Income Security Act of 1974, as amended, the rules and regulations thereunder and any applicable related
or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Employee
Benefit Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator
involving the Company or its subsidiaries with respect to the Employee Benefit Laws is pending or, to the knowledge of the Company, threatened.
Compliance with Laws.
The Company: (A) is and at all times has been in compliance with all Applicable Laws, except as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Change; (B) has not received any correspondence from any Governmental Entity alleging
or asserting noncompliance with any Applicable Laws or any Authorizations; (C) possesses all material Authorizations and such Authorizations
are valid and in full force and effect and the Company is not in material violation of any term of any such Authorizations, in each case
except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Change; (D) has not received
written notice of any claim, action, suit, proceeding, hearing, enforcement, investigation, arbitration or other action from any Governmental
Entity or third party alleging that any product operation or activity is in violation of any Applicable Laws or Authorizations and has
no knowledge that any such Governmental Entity or third party is considering any such claim, litigation, arbitration, action, suit, investigation
or proceeding; (E) has not received written notice that any Governmental Entity has taken, is taking or intends to take action to limit,
suspend, modify or revoke any Authorizations; (F) has filed, obtained, maintained or submitted all material reports, documents, forms,
notices, applications, records, claims, submissions and supplements or amendments as required by any Applicable Laws or Authorizations
and that all such reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments were complete
and correct in all material respects on the date filed (or were corrected or supplemented by a subsequent submission); and (G) has not,
either voluntarily or involuntarily, initiated, conducted, or issued or caused to be initiated, conducted or issued, any recall, market
withdrawal or replacement, safety alert, post-sale warning, “dear doctor” letter, or other notice or action relating to the
alleged lack of safety or efficacy of any product or any alleged product defect or violation and, to the Company's knowledge, no third
party has initiated, conducted or intends to initiate any such notice or action.
FDA. As to each product
subject to the jurisdiction of the U.S. Food and Drug Administration (“FDA”) under the Federal Food, Drug and Cosmetic
Act, as amended, and the regulations thereunder (“FDCA”) that is manufactured, packaged, labeled, tested, distributed,
sold, and/or marketed by the Company or any of its subsidiaries (each such product, a “Pharmaceutical Product”), such
Pharmaceutical Product is being manufactured, packaged, labeled, tested, distributed, sold and/or marketed by the Company in compliance
with all applicable requirements under FDCA and similar laws, rules and regulations relating to registration, investigational use, premarket
clearance, licensure, or application approval, good manufacturing practices, good laboratory practices, good clinical practices, product
listing, quotas, labeling, advertising, record keeping and filing of reports, except where the failure to be in compliance would not
have a Material Adverse Effect. There is no pending, completed or, to the Company's knowledge, threatened, action (including any lawsuit,
arbitration, or legal or administrative or regulatory proceeding, charge, complaint, or investigation) against the Company or any of
its subsidiaries, and none of the Company or any of its subsidiaries has received any notice, warning letter or other communication from
the FDA or any other governmental entity, which (i) contests the premarket clearance, licensure, registration, or approval of, the uses
of, the distribution of, the manufacturing or packaging of, the testing of, the sale of, or the labeling and promotion of any Pharmaceutical
Product, (ii) withdraws its approval of, requests the recall, suspension, or seizure of, or withdraws or orders the withdrawal of advertising
or sales promotional materials relating to, any Pharmaceutical Product, (iii) imposes a clinical hold on any clinical investigation
by the Company or any of its subsidiaries, (iv) enjoins production at any facility of the Company or any of its subsidiaries, (v) enters
or proposes to enter into a consent decree of permanent injunction with the Company or any of its subsidiaries, or (vi) otherwise alleges
any violation of any laws, rules or regulations by the Company or any of its subsidiaries, and which, either individually or in the aggregate,
would have a Material Adverse Effect. The properties, business and operations of the Company have been and are being conducted in all
material respects in accordance with all applicable laws, rules and regulations of the FDA. The Company has not been informed by
the FDA that the FDA will prohibit the marketing, sale, license or use in the United States of any product proposed to be developed,
produced or marketed by the Company nor has the FDA expressed any concern as to approving or clearing for marketing any product being
developed or proposed to be developed by the Company.
Industry Data. The
statistical and market-related data included in each of the Registration Statement, the Disclosure Package and the Prospectus are based
on or derived from sources that the Company reasonably and in good faith believes are reliable and accurate or represent the Company's
good faith estimates that are made on the basis of data derived from such sources.
Forward-Looking Statements.
No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act) contained
in the Registration Statement, the Disclosure Package or the Prospectus has been made or reaffirmed without a reasonable basis or has
been disclosed other than in good faith.
Margin Securities.
The Company owns no “margin securities” as that term is defined in Regulation U of the Board of Governors of the Federal
Reserve System (the “Federal Reserve Board”), and none of the proceeds of Offering will be used, directly or indirectly,
for the purpose of purchasing or carrying any margin security, for the purpose of reducing or retiring any indebtedness which was originally
incurred to purchase or carry any margin security or for any other purpose which might cause any of the shares of Common Stock to be
considered a “purpose credit” within the meanings of Regulation T, U or X of the Federal Reserve Board.
Integration. To the
Company’s knowledge, neither the Company, nor any of its affiliates, nor any person acting on its or their behalf has, directly
or indirectly, made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would cause
the Offering to be integrated with prior offerings by the Company for purposes of the Securities Act that would require the registration
of any such securities under the Securities Act.
Confidentiality and Non-Competition.
To the Company's knowledge, no director, officer, key employee or consultant of the Company is subject to any confidentiality, non-disclosure,
non-competition agreement or non-solicitation agreement with any employer or prior employer that could reasonably be expected to materially
affect his ability to be and act in his respective capacity of the Company or be expected to result in a Material Adverse Change.
Restriction on Sales of
Capital Stock. The Company, on behalf of itself and any successor entity, agrees that it will not, for a period of 30 days from the
Closing Date (the “Restricted Period”), without the prior written consent of the Placement Agent, offer, sell, or otherwise
transfer or dispose of, directly or indirectly, any shares of capital stock of the Company or any securities convertible into or exercisable
or exchangeable for shares of capital stock of the Company; provided, that the Company may at any time during the Restricted Period,
with or without the prior written consent of the Placement Agent, sell shares of capital stock of the Company or any securities convertible
into or exercisable or exchangeable for shares of capital stock of the Company in any PIPE transaction raising gross proceeds to the
Company of $30.0 million or more; provided further that the restrictions imposed by this Section 7(NN) shall only apply if (i) the Offering
is for common stock or common stock equivalents only, (ii) the Offering is compliant with Nasdaq public offering requirements, and (iii)
the Offering equals or exceeds $4.0 million in gross proceeds to the Company. The restrictions contained in this section shall not apply
to (i) the issuance by the Company of Common Stock upon the exercise of stock options, warrants or the conversion of a security, in each
case, that is outstanding on the date hereof, or (ii) the grant by the Company of stock options or other stock-based awards, or the issuance
of shares of capital stock of the Company under any stock compensation plan of the Company in effect on the date hereof.
Reserved.
Lock-Up Agreements.
The Company has caused each of its officers and directors to deliver to the Placement Agent an executed Lock-Up Agreement, in such form
as approved by the Placement Agent (the “Lock-Up Agreement”), prior to the execution of this Agreement.
| Conditions of the Obligations of the Placement Agent. |
The obligations of the Placement
Agent hereunder shall be subject to the accuracy of the representations and warranties on the part of the Company set forth in Section
7 hereof, in each case as of the date hereof and as of the Closing Date as though then made, to the timely performance by each of the
Company of its covenants and other obligations hereunder on and as of such dates, and to each of the following additional conditions:
Effectiveness
of Registration Statement; Rule 424 Information. The Registration Statement is effective on the date of this Agreement, and, on the
Closing Date no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been
issued under the Securities Act, no order preventing or suspending the use of any Preliminary Prospectus or the Prospectus has been issued
and no proceedings for any of those purposes have been instituted or are pending or, to the Company’s knowledge, contemplated by
the Commission. The Company has complied with each request (if any) from the Commission for additional information. All filings with
the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Date, shall have been made within the
applicable time period prescribed for such filing by Rule 424.
FINRA Clearance.
If and to the extent required under applicable FINRA rules, on or before the Closing Date of this Agreement, the Placement Agent shall
have received clearance from FINRA as to the amount of compensation allowable or payable to the Placement Agent as described in the Registration
Statement.
Listing of Additional
Shares. On or before the Closing Date of this Agreement, the Company shall have submitted to The Nasdaq Stock Market, Inc. the Company’s
application for the additional listing of the securities sold in the Offering.
i. On the Closing
Date, the Placement Agent shall have received the favorable opinions of each of Brownstein Hyatt Farber Schreck, LLP and Lowenstein Sandler
LLP, outside counsel for the Company, dated the Closing Date and addressed to the Placement Agent, substantially in form and substance
reasonably satisfactory to the Placement Agent.
| Comfort Letter. At the Closing Date, a cold comfort letter, addressed to the Placement Agent and
in form and substance satisfactory in all respects to the Placement Agent from the Company’s Auditor dated as of the date of this
Agreement accompanied by a bring-down letter dated as of the Closing Date. |
i. Officers’
Certificate. The Company shall have furnished to the Placement Agent a certificate, dated the Closing Date, of its Chief Executive
Officer and its Chief Financial Officer stating that (i) such officers have carefully examined the Registration Statement, the Disclosure
Package, any Issuer Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statement and each amendment thereto,
as of the Initial Sale Time and through the Closing Date did not include any untrue statement of a material fact and did not omit to
state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the Disclosure Package,
as of the Initial Sale Time through the Closing Date, any Issuer Free Writing Prospectus as of its date and as of the Closing Date, the
Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any
untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the
light of the circumstances in which they were made, not misleading, (ii) since the filing of the most recent Form 10-Q, no event has
occurred which should have been set forth in a supplement or amendment to the Registration Statement, the Disclosure Package or the Prospectus,
(iii) to their knowledge after reasonable investigation, as of the Closing Date, the representations and warranties of the Company in
this Agreement are true and correct, and the Company has complied with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date, and (iv) there has not been, subsequent to the date of the most recent
audited financial statements included in the Disclosure Package, any Material Adverse Change in the financial position or results of
operations of the Company, or any change or development that, singularly or in the aggregate, would involve a Material Adverse Change
or a prospective Material Adverse Change, in or affecting the condition (financial or otherwise), results of operations, business, assets
or prospects of the Company, except as set forth in the Prospectus.
Secretary’s
Certificate. As of the Closing Date the Placement Agent shall have received a certificate of the Company signed by the Secretary
of the Company, dated the Closing Date, certifying: (i) that each of the Company’s Charter and Bylaws is true and complete, has
not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the
Offering are in full force and effect and have not been modified; and (iii) the good standing of the Company and its U.S. subsidiaries.
The documents referred to in such certificate shall be attached to such certificate.
No Material Changes.
Prior to and on the Closing Date: (i) there shall have been no Material Adverse Change or development involving a prospective Material
Adverse Change in the condition or prospects or the business activities, financial or otherwise, of the Company from the latest dates
as of which such condition is set forth in the Registration Statement, the Disclosure Package and the Prospectus; (ii) no action, suit
or proceeding, at law or in equity, shall have been pending or threatened against the Company or any affiliates of the Company before
or by any court or federal or state commission, board or other administrative agency wherein an unfavorable decision, ruling or finding
may materially adversely affect the business, operations, prospects or financial condition or income of the Company, except as set forth
in the Registration Statement, the Disclosure Package and the Prospectus; (iii) no stop order shall have been issued under the Securities
Act and no proceedings therefor shall have been initiated or threatened by the Commission; and (iv) the Registration Statement, the Disclosure
Package and the Prospectus and any amendments or supplements thereto shall contain all material statements which are required to be stated
therein in accordance with the Securities Act and the Securities Act Regulations and shall conform in all material respects to the requirements
of the Securities Act and the Securities Act Regulations, and neither the Registration Statement, the Disclosure Package nor the Prospectus
nor any amendment or supplement thereto shall 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, in light of the circumstances under which they were made, not misleading.
Reservation of Common
Stock. So long as any Pre-Funded Warrants remain outstanding, the Company shall take all action necessary to at all times have authorized,
and reserved for the purpose of issuance, no less than 100% of the maximum number of shares of Common Stock issuable upon exercise of
the Pre-Funded Warrants.
Delivery of Agreements.
(i) Lock-Up
Agreements. On or before the date of this Agreement, the Company shall have delivered to the Placement Agent executed copies of the
Lock-Up Agreements from each of the Company and its officers and directors.
Additional Documents.
At the Closing Date, Placement Agent Counsel shall have been furnished with such documents and opinions as they may reasonably require
in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained;
and all proceedings taken by the Company in connection with the issuance and sale of the Securities as herein contemplated shall be satisfactory
in form and substance to the Placement Agent and Placement Agent Counsel.
| Indemnification and Contribution; Procedures. |
Indemnification of the
Placement Agent. The Company agrees to indemnify and hold harmless the Placement Agent, its affiliates and each person controlling
such Placement Agent (within the meaning of Section 15 of the Securities Act), and the directors, officers, agents and employees of the
Placement Agent, its affiliates and each such controlling person (the Placement Agent, and each such entity or person hereafter is referred
to as an “Indemnified Person”) from and against any losses, claims, damages, judgments, assessments, costs and other
liabilities (collectively, the “Liabilities”), and shall reimburse each Indemnified Person for all fees and expenses
(including the reasonable fees and expenses of counsel for the Indemnified Persons, except as otherwise expressly provided in this Agreement)
(collectively, the “Expenses”) and agrees to advance payment of such Expenses as they are incurred by an Indemnified
Person in investigating, preparing, pursuing or defending any actions, whether or not any Indemnified Person is a party thereto, arising
out of or based upon any untrue statement or alleged untrue statement of a material fact contained in (i) the Registration Statement,
the Disclosure Package, the Preliminary Prospectus, the Prospectus or in any Issuer Free Writing Prospectus (as from time to time each
may be amended and supplemented); (ii) any materials or information provided to investors by, or with the approval of, the Company in
connection with the marketing of the Offering, including any “road show” or investor presentations made to investors by the
Company (whether in person or electronically); or (iii) any application or other document or written communication (in this Section 9,
collectively called “application”) executed by the Company or based upon written information furnished by the Company in
any jurisdiction in order to qualify the Securities under the securities laws thereof or filed with the Commission, any state securities
commission or agency, any national securities exchange; or the omission or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading,
unless such statement or omission was made in reliance upon, and in conformity with, the Placement Agent’s information. The Company
also agrees to reimburse each Indemnified Person for all Expenses as they are reasonably incurred in connection with such Indemnified
Person’s enforcement of his or its rights under this Agreement. Each Indemnified Person is an intended third party beneficiary
with the same rights to enforce the indemnification that each Indemnified Person would have if he was a party to this Agreement.
Procedure. Upon receipt
by an Indemnified Person of actual notice of an action against such Indemnified Person with respect to which indemnity, contribution
or advancement of expenses may reasonably be expected to be sought under this Agreement, such Indemnified Person shall promptly notify
the Company in writing; provided that failure by any Indemnified Person so to notify the Company shall not relieve the Company from any
obligation or liability which the Company may have on account of this Section 9 or otherwise to such Indemnified Person, except to the
extent (and only to the extent) that its ability to assume the defense is actually impaired by such failure or delay. The Company shall,
if requested by the Placement Agent, assume the defense of any such action (including the employment of counsel and reasonably satisfactory
to the Placement Agent). Any Indemnified Person 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 Indemnified Person unless: (i) the Company
has failed promptly to assume the defense and employ counsel for the benefit of the Placement Agent and the other Indemnified Persons
or (ii) such Indemnified Person shall have been advised that in the opinion of counsel that there is an actual or potential conflict
of interest that prevents (or makes it imprudent for) the counsel engaged by the Company for the purpose of representing the Indemnified
Person, to represent both such Indemnified Person and any other person represented or proposed to be represented by such counsel, it
being understood, however, that the Company shall not be liable for the expenses of more than one separate
counsel (together with local counsel), representing the Placement Agent and all Indemnified persons who are parties to such action.
The Company shall not be liable for any settlement of any action effected without its written consent (which shall not be unreasonably
withheld). In addition, the Company shall not, without the prior written consent of the Placement Agent, settle, compromise or consent
to the entry of any judgment in or otherwise seek to terminate any pending or threatened action in respect of which advancement, reimbursement,
indemnification or contribution may be sought hereunder (whether or not such Indemnified Person is a party thereto) unless such settlement,
compromise, consent or termination (i) includes an unconditional release of each Indemnified Person, acceptable to such Indemnified Party,
from all Liabilities arising out of such action for which indemnification or contribution may be sought hereunder and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any Indemnified Person. The advancement,
reimbursement, indemnification and contribution obligations of the Company required hereby shall be made by periodic payments of the
amount thereof during the course of the investigation or defense, as every Liability and Expense is incurred and is due and payable,
and in such amounts as fully satisfy each and every Liability and Expense as it is incurred (and in no event later than 30 days following
the date of any invoice therefor).
Indemnification of the
Company. The Placement Agent agrees to indemnify and hold harmless the Company, its directors, its officers who signed the Registration
Statement and persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
against any and all Liabilities, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions made
in the Registration Statement, any Preliminary Prospectus, the Disclosure Package or Prospectus or any amendment or supplement thereto,
in reliance upon, and in strict conformity with, the Placement Agent’s Information. In case any action shall be brought against
the Company or any other person so indemnified based on any Preliminary Prospectus, the Registration Statement, the Disclosure Package
or Prospectus or any amendment or supplement thereto, and in respect of which indemnity may be sought against the Placement Agent, the
Placement Agent shall have the rights and duties given to the Company, and the Company and each other person so indemnified shall have
the rights and duties given to the Placement Agent by the provisions of Section 9.B. The Company agrees promptly to notify the Placement
Agent of the commencement of any litigation or proceedings against the Company or any of its officers, directors or any person, if any,
who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, in connection with
the issuance and sale of the Securities or in connection with the Registration Statement, the Disclosure Package, the Prospectus or any
Issuer Free Writing Prospectus, provided, that failure by the Company so to notify the Placement
Agent shall not relieve the Placement Agent from any obligation or liability which the Placement Agent may have on account of this Section
9.C. or otherwise to the Company, except to the extent the Placement Agent is materially prejudiced as a proximate result of such failure..
Contribution. In the
event that a court of competent jurisdiction makes a finding that indemnity is unavailable to any indemnified person, then each indemnifying
party shall contribute to the Liabilities and Expenses paid or payable by such indemnified person in such proportion as is appropriate
to reflect (i) the relative benefits to the Company, on the one hand, and to the Placement Agent and any other Indemnified Person, on
the other hand, of the matters contemplated by this Agreement or (ii) if the allocation provided by the immediately preceding clause
is not permitted by applicable law, not only such relative benefits but also the relative fault of the Company, on the one hand, and
the Placement Agent and any other Indemnified Person, on the other hand, in connection with the matters as to which such Liabilities
or Expenses relate, as well as any other relevant equitable considerations; provided that in no event shall the Company contribute less
than the amount necessary to ensure that all Indemnified Persons, in the aggregate, are not liable for any Liabilities and Expenses in
excess of the amount of commissions actually received by the Placement Agent pursuant to this Agreement. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the Company on the one hand or the Placement Agent on the
other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or
omission. The Company and the Placement Agent agree that it would not be just and equitable if contributions pursuant to this subsection
(D) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations
referred to above in this subsection (D). For purposes of this paragraph, the relative benefits to the Company, on the one hand, and
to the Placement Agent on the other hand, of the matters contemplated by this Agreement shall be deemed to be in the same proportion
as: (a) the total value received by the Company in the Offering, whether or not such Offering is consummated, bears to (b) the commissions
paid to the Placement Agent under this Agreement. Notwithstanding the above, no person guilty of fraudulent misrepresentation within
the meaning of Section 11(f) of the Securities Act shall be entitled to contribution from a party who was not guilty of fraudulent misrepresentation.
Limitation. The Company
also agrees that no Indemnified Person shall have any liability (whether direct or indirect, in contract or tort or otherwise) to the
Company for or in connection with advice or services rendered or to be rendered by any Indemnified Person pursuant to this Agreement,
the transactions contemplated thereby or any Indemnified Person’s actions or inactions in connection with any such advice, services
or transactions, except to the extent that a court of competent jurisdiction has made a finding that Liabilities (and related Expenses)
of the Company have resulted primarily from such Indemnified Person’s gross negligence or willful misconduct in connection with
any such advice, actions, inactions or services.
Survival. The advancement,
reimbursement, indemnity and contribution obligations set forth in this Section 9 shall remain in full force and effect regardless of
any termination of, or the completion of any Indemnified Person’s services under or in connection with, this Agreement. Each Indemnified
Person is an intended third-party beneficiary of this Section 9, and has the right to enforce the provisions of Section 9 as if he/she/it
was a party to this Agreement.
| Limitation of the Placement Agent’s Liability to the Company. |
The Placement Agent and the
Company further agree that neither the Placement Agent nor any of its affiliates or any of their respective officers, directors, controlling
persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), employees or agents shall have any
liability to the Company, its security holders or creditors, or any person asserting claims on behalf of or in the right of the Company
(whether direct or indirect, in contract or tort, for an act of negligence or otherwise) for any losses, fees, damages, liabilities, costs,
expenses or equitable relief arising out of or relating to this Agreement or the Services rendered hereunder, except for losses, fees,
damages, liabilities, costs or expenses that arise out of or are based on any action of or failure to act by the Placement Agent and that
are finally judicially determined to have resulted solely from the gross negligence or willful misconduct of the Placement Agent.
| Limitation of Engagement to the Company. |
The Company acknowledges that
the Placement Agent has been retained only by the Company, that the Placement Agent is providing services hereunder as an independent
contractor (and not in any fiduciary or agency capacity) and that the Company’s engagement of the Placement Agent is not deemed
to be on behalf of, and is not intended to confer rights upon, any shareholder, owner or partner of the Company or any other person not
a party hereto as against the Placement Agent or any of its affiliates, or any of its or their respective officers, directors, controlling
persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), employees or agents. Unless otherwise
expressly agreed in writing by the Placement Agent, no one other than the Company is authorized to rely upon any statement or conduct
of the Placement Agent in connection with this Agreement. The Company acknowledges that any recommendation or advice, written or oral,
given by the Placement Agent to the Company in connection with the Placement Agent’s engagement is intended solely for the benefit
and use of the Company’s management and directors in considering a possible Offering, and any such recommendation or advice is not
on behalf of, and shall not confer any rights or remedies upon, any other person or be used or relied upon for any other purpose. The
Placement Agent shall not have the authority to make any commitment binding on the Company. The Company, in its sole discretion, shall
have the right to reject any investor introduced to it by the Placement Agent. If any purchase agreement and/or related transaction documents
are entered into between the Company and the investors in the Offering, the Placement Agent will be entitled to rely on the representations,
warranties, agreements and covenants of the Company contained in any such purchase agreement and related transaction documents as if such
representations, warranties, agreements and covenants were made directly to the Placement Agent by the Company.
No supplement, modification
or waiver of this Agreement shall be binding unless executed in writing by the party to be bound thereby. The failure of a party to exercise
any right or remedy shall not be deemed or constitute a waiver of such right or remedy in the future. No waiver of any of the provisions
of this Agreement shall be deemed or shall constitute a waiver of any other provision hereof (regardless of whether similar), nor shall
any such waiver be deemed or constitute a continuing waiver unless otherwise expressly provided.
In the event of the consummation
or public announcement of any Offering, the Placement Agent shall have the right to disclose its participation in such Offering, including,
without limitation, the placement at its cost of “tombstone” advertisements in financial and other newspapers and journals.
the Placement Agent agrees not to use any confidential information concerning the Company provided to the Placement Agent by the Company
for any purposes other than those contemplated under this Agreement.
The headings of the various
sections of this Agreement have been inserted for convenience of reference only and will not be deemed to be part of this Agreement.
This Agreement may be executed
in one or more counterparts and, if executed in more than one counterpart, the executed counterparts shall each be deemed to be an original
and all such counterparts shall together constitute one and the same instrument.
In case any provision contained
in this Agreement should be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining
provisions contained herein will not in any way be affected or impaired thereby.
The Company will furnish the
Placement Agent such written information as the Placement Agent reasonably requests in connection with the performance of its services
hereunder. The Company understands, acknowledges and agrees that, in performing its services hereunder, the Placement Agent will use and
rely entirely upon such information as well as publicly available information regarding the Company and other potential parties to an
Offering and that the Placement Agent does not assume responsibility for independent verification of the accuracy or completeness of any
information, whether publicly available or otherwise furnished to it, concerning the Company or otherwise relevant to an Offering, including,
without limitation, any financial information, forecasts or projections considered by the Placement Agent in connection with the provision
of its services.
| Absence of Fiduciary Relationship. |
The Company acknowledges and
agrees that: (a) the Placement Agent has been retained solely to act as Placement Agent in connection with the sale of the Securities
and that no fiduciary, advisory or agency relationship between the Company and the Placement Agent has been created in respect of any
of the transactions contemplated by this Agreement, irrespective of whether the Placement Agent has advised or is advising the Company
on other matters; (b) the Purchase Price and other terms of the Securities set forth in this Agreement were established by the Company
following discussions and arms-length negotiations with the Placement Agent and the Company is capable of evaluating and understanding
and understands and accepts the terms, risks and conditions of the transactions contemplated by this Agreement; (c) it has been advised
that the Placement Agent and its affiliates are engaged in a broad range of transactions that may involve interests that differ from those
of the Company and that the Placement Agent has no obligation to disclose such interest and transactions to the Company by virtue of any
fiduciary, advisory or agency relationship; and (d) it has been advised that the Placement Agent is acting, in respect of the transactions
contemplated by this Agreement, solely for the benefit of the Placement Agent, and not on behalf of the Company and that the Placement
Agents may have interests that differ from those of the Company. The Company waives to the full extent permitted by applicable law any
claims it may have against the Placement Agent arising from an alleged breach of fiduciary duty in connection with the Offering.
| Survival Of Indemnities, Representations, Warranties, Etc. |
The respective indemnities,
covenants, agreements, representations, warranties and other statements of the Company and Placement Agent, as set forth in this Agreement
or made by them respectively, pursuant to this Agreement, shall remain in full force and effect, regardless of any investigation made
by or on behalf of the Placement Agent, the Company, the Purchasers or any person controlling any of them and shall survive delivery of
and payment for the Securities. Notwithstanding any termination of this Agreement, including without limitation any termination pursuant
to Section 5, the payment, reimbursement, indemnity, contribution and advancement agreements contained in Sections 2, 9, 10, and 11, respectively,
and the Company’s covenants, representations, and warranties set forth in this Agreement shall not terminate and shall remain in
full force and effect at all times. The indemnity and contribution provisions contained in Section 9 and the covenants, warranties and
representations of the Company contained in this Agreement shall remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by or on behalf of any Placement Agent, any person who controls any Placement Agent
within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act or any affiliate of any Placement Agent,
or by or on behalf of the Company, its directors or officers or any person who controls the Company within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act, and (iii) the issuance and delivery of the Securities.
This Agreement shall be governed
by and construed in accordance with the laws of the State of New York applicable to agreements made and to be fully performed therein.
Any disputes that arise under this Agreement, even after the termination of this Agreement, will be heard only in the state or federal
courts located in the City of New York, State of New York. The parties hereto expressly agree to submit themselves to the jurisdiction
of the foregoing courts in the City of New York, State of New York. The parties hereto expressly waive any rights they may have to contest
the jurisdiction, venue or authority of any court sitting in the City and State of New York.
All communications hereunder
shall be in writing and shall be mailed or hand delivered and confirmed to the parties hereto as follows:
If to the Company:
Tonix Pharmaceuticals Holding
Corp.
26 Main Street, Suite 101
Chatam, NJ 07928
Attention: Chief Executive
Officer
If to the Placement Agent:
Dawson James Securities,
Inc.
101 North Federal Hwy. Suite
600
Boca Raton, FL 33432
Attention: Chief Executive
Officer
Any party hereto may change
the address for receipt of communications by giving written notice to the others.
This Agreement shall not be
modified or amended except in writing signed by the Placement Agent and the Company. This Agreement constitutes the entire agreement of
the Placement Agent and the Company, and supersedes any prior agreements, with respect to the subject matter hereof. If any provision
of this Agreement is determined to be invalid or unenforceable in any respect, such determination will not affect such provision in any
other respect, and the remainder of this Agreement shall remain in full force and effect. This Agreement may be executed in counterparts
(including facsimile or .pdf counterparts), each of which shall be deemed an original but all of which together shall constitute one and
the same instrument.
This Agreement will inure
to the benefit of and be binding upon the parties hereto, and to the benefit of the employees, officers and directors and controlling
persons referred to in Section 9 hereof, and to their respective successors, and personal representative, and, except as set forth in
Section 9 of this Agreement, no other person will have any right or obligation hereunder.
| Partial Unenforceability. |
The invalidity or unenforceability
of any section, paragraph or provision of this Agreement shall not affect the validity or enforceability of any other section, paragraph
or provision hereof. If any Section, paragraph or provision of this Agreement is for any reason determined to be invalid or unenforceable,
there shall be deemed to be made such minor changes (and only such minor changes) as are necessary to make it valid and enforceable.
[SIGNATURE PAGE TO FOLLOW]
In acknowledgment that the
foregoing correctly sets forth the understanding reached by the Placement Agent and the Company, and intending to be legally bound, please
sign in the space provided below, whereupon this letter shall constitute a binding Agreement as of the date executed.
Very truly yours, |
|
|
|
TONIX PHARMACEUTICALS HOLDING
CORP. |
|
|
|
By: |
/s/ Seth Lederman |
|
|
Name: |
Seth Lederman |
|
|
Title: |
Chief Executive Officer |
|
Confirmed as of the date first
written above: |
|
|
|
|
|
DAWSON JAMES SECURITIES, INC. |
|
|
|
By: |
/s/ Richard Aulicino |
|
|
Name: |
Richard Aulicino |
|
|
Title: |
President |
|
SCHEDULE I
Issuer General Use Free Writing
Prospectuses
None.
EXHIBIT A
Armistice
Sabby
Bigger
Bigger District 2
Alyeska
Marshall Wace
Rosalind
Second Line
Altium
Exhibit B
Form of Pre-Funded Warrant
TONIX PHARMACEUTICALS HOLDING CORP. 8-K
Exhibit 4.01
PRE-FUNDED
WARRANT
TO
PURCHASE SHARES OF COMMON STOCK
TONIX
PHARMACEUTICALS HOLDING CORP.
Warrant
Shares: |
Original
Exercise Date: July 10, 2024 |
THIS
PRE-FUNDED WARRANT TO PURCHASE SHARES OF COMMON STOCK (this “Warrant”) certifies that, for value received, or its
assigns (the “Holder”) is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter
set forth, at any time on or after the date hereof (the “Initial Exercise Date”) until this Warrant is exercised in
full (the “Termination Date”) but not thereafter, to subscribe for and purchase from TONIX PHARMACEUTICALS HOLDING
CORP., a Nevada corporation (the “Company”), up to shares of Common Stock, par value $0.001 per share (the
“Common Stock”), of the Company (as subject to adjustment hereunder, the “Warrant Shares”). The
purchase price of one Warrant Share under this Warrant shall be equal to the Exercise Price, as defined in Section 2(b). This Warrant
shall initially be issued and maintained in the form of a security held in book-entry form and the Depository Trust Company or its nominees
(“DTC”) shall initially be the sole registered holder of this Warrant, subject to a Holder’s right to elect
to receive a Warrant in certified form pursuant to the terms of the Warrant Agent Agreement, in which case this sentence shall not apply.
1.
Definitions. Capitalized terms used and not otherwise defined herein shall have the meanings set forth in that certain Placement
Agency Agreement (the “Agreement”), dated July 9, 2024, among the Company and the purchasers signatory thereto.
“Warrant
Agent Agreement” means that certain warrant agent agreement, dated on or about the Initial Exercise Date, between the Company and
Warrant Agent.
“Warrant
Agent” means the Transfer Agent and any successor warrant agent of the Company.
2.
Exercise.
(a)
Exercise of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any time
or times on or after the Initial Exercise Date and on or before the Termination Date by delivery to the Warrant Agent of a duly executed
facsimile copy or PDF copy submitted by e-mail (or e-mail attachment) of the Notice of Exercise in the form annexed hereto (the “Notice
of Exercise”). Within the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement
Period (as defined in Section 2(d)(i) herein) following the date of exercise as aforesaid, the Holder shall deliver the aggregate Exercise
Price for the Warrant Shares specified in the applicable Notice of Exercise by wire transfer or cashier’s check drawn on a United
States bank unless the cashless exercise procedure specified in Section 2(c) below is specified in the applicable Notice of Exercise.
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 be required. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically
surrender this Warrant to the Warrant Agent until the Holder has purchased all of the Warrant Shares available hereunder and the Warrant
has been exercised in full, in which case, the Holder shall surrender this Warrant to the Warrant Agent for cancellation within three
(3) Trading Days of the date on which the final Notice of Exercise is delivered to the Warrant Agent. Partial exercises of this Warrant
resulting in purchases of a portion of the total number of Warrant Shares available hereunder shall have the effect of lowering the outstanding
number of Warrant Shares purchasable hereunder in an amount equal to the applicable number of Warrant Shares purchased. The Holder and
the Company shall maintain records showing the number of Warrant Shares purchased and the date of such purchases. The Company shall deliver
any objection to any Notice of Exercise within one (1) Business Day of receipt of such notice. Notwithstanding the foregoing, with respect
to any Notice(s) of Exercise delivered on or prior to 12:00 p.m. (New York City time) on the Initial Exercise Date, which may be delivered
at any time after the time of execution of the Agreement, the Company agrees to deliver, or cause to be delivered, the Warrant Shares
subject to such notice(s) by 4:00 p.m. (New York City time) on the Initial Exercise Date, and the Initial Exercise Date shall be the
Warrant Share Delivery Date (as defined below) for purposes hereunder, provided that payment of the aggregate Exercise Price (other than
in the case of a cashless exercise) is received by such Warrant Share Delivery Date. The Holder and any assignee, by acceptance of
this Warrant, acknowledge and agree that, by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant
Shares hereunder, the number of Warrant Shares available for purchase hereunder at any given time may be less than the amount stated
on the face hereof.
(b)
Exercise Price. The aggregate exercise price of this Warrant, except for a nominal exercise
price of $0.001 per Warrant Share, was pre-funded to the Company on or prior to the Initial Exercise Date and, consequently, no additional
consideration (other than the nominal exercise price of $0.001 per Warrant Share) shall be required to be paid by the Holder to any Person
to effect any exercise of this Warrant. The Holder shall not be entitled to the return or refund of all, or any portion, of such pre-paid
aggregate exercise price under any circumstance or for any reason whatsoever, including in the event this Warrant shall not have been
exercised prior to the Termination Date. The remaining unpaid exercise price per Warrant Share under this Warrant shall be $0.001, subject
to adjustment hereunder (the “Exercise Price”)
I.
Cashless Exercise. This Warrant may be exercised, in whole or in part, at such time by means of a “cashless exercise”
in which the Holder shall be entitled to receive a number of Warrant Shares equal to the quotient obtained by dividing [(A-B) (X)] by
(A), where:
| (A) | =
as applicable: (i) the VWAP on the Trading Day immediately preceding the date of the applicable
Notice of Exercise if such Notice of Exercise is (1) both executed and delivered pursuant
to Section 2(a) hereof on a day that is not a Trading Day or (2) both executed and delivered
pursuant to Section 2(a) hereof on a Trading Day prior to the opening of “regular trading
hours” (as defined in Rule 600(b) of Regulation NMS promulgated under the federal securities
laws) on such Trading Day, (ii) at the option of the Holder, either (x) the VWAP on the Trading
Day immediately preceding the date of the applicable Notice of Exercise or (y) the Bid Price
of the Common Stock on the principal Trading Market as reported by Bloomberg L.P. (“Bloomberg”)
as of the time of the Holder’s execution of the applicable Notice of Exercise if such
Notice of Exercise is executed during “regular trading hours” on a Trading Day
and is delivered within two (2) hours thereafter (including until two (2) hours after the
close of “regular trading hours” on a Trading Day) pursuant to Section 2(a) hereof
or (iii) the VWAP on the date of the applicable Notice of Exercise if the date of such Notice
of Exercise is a Trading Day and such Notice of Exercise is both executed and delivered pursuant
to Section 2(a) hereof after the close of “regular trading hours” on such Trading
Day; |
| (B) | =
the Exercise Price, as adjusted hereunder; and |
(X)
= the number of Warrant Shares that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such
exercise were by means of a cash exercise rather than a cashless exercise.
If
Warrant Shares are issued in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the
Securities Act, the Warrant Shares shall take on the registered characteristics of the Warrants being exercised. The Company agrees not
to take any position contrary to this Section 2(c).
“Bid
Price” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock
is then listed or quoted on a Trading Market, the bid price of the Common Stock for the time in question (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg (based on a Trading Day from 9:30 a.m.
(New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the VWAP of the Common Stock
for such date (or the nearest preceding date) on OTCQB or OTcQX as applicable, (c) if the Common Stock is not then listed or quoted for
trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on The Pink Open Market (or a similar organization or
agency succeeding to its functions of reporting prices), the most recent bid price per share of Common Stock so reported, or (d) in all
other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good faith by the
Purchasers of a majority in interest of the Securities then outstanding and reasonably acceptable to the Company, the fees and expenses
of which shall be paid by the Company.
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed
or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg (based on a Trading Day from 9:30 a.m.
(New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price
of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not then
listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on The Pink Open Market (or a similar
organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of Common Stock so reported,
or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good
faith by the Purchasers of a majority in interest of the Securities then outstanding and reasonably acceptable to the Company, the fees
and expenses of which shall be paid by the Company.
(d)
Mechanics of Exercise
(i)
Delivery of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted by
the Transfer Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with The Depository
Trust Company through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company is then a participant
in such system and either (A) there is an effective registration statement permitting the issuance of the Warrant Shares to, or resale
of the Warrant Shares by, the Holder or (B) this Warrant is being exercised via cashless exercise, and otherwise by physical delivery
of the Warrant Shares, registered in the Company’s share register in the name of the Holder or its designee, for the number of
Warrant Shares to which the Holder is entitled pursuant to such exercise to the address specified by the Holder in the Notice of Exercise
by the date that is the earliest of (i) two (2) Trading Days after the delivery to the Company of the Notice of Exercise, (ii) one (1)
Trading Day after delivery of the aggregate Exercise Price to the Company, and (iii) the number of Trading Days comprising the Standard
Settlement Period after the delivery to the Company of the Notice of Exercise (such date, the “Warrant Share Delivery Date”).
Upon delivery of the Notice of Exercise, the Holder shall be deemed for all corporate purposes to have become the holder of record of
the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date of delivery of the Warrant Shares,
provided that payment of the aggregate Exercise Price (other than in the case of a cashless exercise) is received within the earlier
of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period following delivery of the Notice
of Exercise. If the Company fails for any reason to deliver to the Holder the Warrant Shares subject to a Notice of Exercise by the Warrant
Share Delivery Date, the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant
Shares subject to such exercise (based on the VWAP of the Common Stock on the date of the applicable Notice of Exercise), $10 per Trading
Day (increasing to $20 per Trading Day on the third Trading Day after the Warrant Share Delivery Date) for each Trading Day after such
Warrant Share Delivery Date until such Warrant Shares are delivered or Holder rescinds such exercise. The Company agrees to maintain
a registrar (which may be the Transfer Agent) that is a participant in the FAST program so long as this Warrant remains outstanding and
exercisable. As used herein, “Standard Settlement Period” means the standard settlement period, expressed in a number
of Trading Days, on the Company’s primary Trading Market with respect to the Common Stock as in effect on the date of delivery
of the Notice of Exercise.
(ii)
Delivery of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of
a Holder and upon surrender of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the Holder a new Warrant
evidencing the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant shall in
all other respects be identical with this Warrant.
(iii)
Rescission Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant to Section
2(d)(i) by the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise.
(iv)
Compensation for Buy-In on Failure to Timely Deliver Warrant Shares Upon Exercise. In addition to any other rights available to
the Holder, if the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with the provisions
of Section 2(d)(i) above pursuant to an exercise on or before the Warrant Share Delivery Date, and if after such date the Holder is required
by its broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases, shares
of Common Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon
such exercise (a “Buy-In”), then the Company shall (A) pay in cash to the Holder the amount, if any, by which (x)
the Holder’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased exceeds
(y) the amount obtained by multiplying (1) the number of Warrant Shares that the Company was required to deliver to the Holder in connection
with the exercise at issue times (2) the price at which the sell order giving rise to such purchase obligation was executed, and (B)
at the option of the Holder, either reinstate the portion of the Warrant and equivalent number of Warrant Shares for which such exercise
was not honored (in which case such exercise shall be deemed rescinded) or deliver to the Holder the number of shares of Common Stock
that would have been issued had the Company timely complied with its exercise and delivery obligations hereunder. For example, if the
Holder purchases shares of Common Stock having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted exercise
of Warrants with an aggregate sale price giving rise to such purchase obligation of $10,000, under clause (A) of the immediately preceding
sentence the Company shall be required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating the amounts
payable to the Holder in respect of the Buy-In and, upon request of the Company, evidence of the amount of such loss. Nothing herein
shall limit a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation,
a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver shares of Common
Stock upon exercise of the Warrant as required pursuant to the terms hereof.
(v)
No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise
of this Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company
shall, at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied
by the Exercise Price or round up to the next whole share of Common Stock.
(vi)
Charges, Taxes and Expenses. The issuance of Warrant Shares and delivery of Warrant Shares shall be made without charge to the
Holder for any issue or transfer tax or other incidental expense in respect of the issuance of such Warrant Shares, all of which taxes
and expenses shall be paid by the Company, and such Warrant Shares shall be issued in the name of the Holder or in such name or names
as may be directed by the Holder; provided, however, that, in the event that Warrant Shares are to be issued in a name other than the
name of the Holder, this Warrant when surrendered for exercise shall be accompanied by the Assignment Form attached hereto duly executed
by the Holder and the Company may require, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer tax
incidental thereto. The Company shall pay all Transfer Agent fees required for same-day processing of any Notice of Exercise and all
fees to the Depository Trust Company (or another established clearing corporation performing similar functions) required for same-day
electronic delivery of the Warrant Shares.
(vii)
Closing of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise
of this Warrant, pursuant to the terms hereof.
(viii)
Holder’s Exercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the
right to exercise any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance
after exercise as set forth on the applicable Notice of Exercise, the Holder (together with (i) the Holder’s Affiliates, (ii) any
other Persons acting as a group together with the Holder or any of the Holder’s Affiliates, and (iii) any other Persons whose beneficial
ownership of shares of Common Stock would or could be aggregated with the Holder’s for the purposes of Section 13(d) (such Persons,
“Attribution Parties”)), would beneficially own in excess of the Beneficial Ownership Limitation (as defined below).
For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates and
Attribution Parties shall include the number of Warrant Shares issuable upon exercise of this Warrant with respect to which such determination
is being made, but shall exclude the Warrant Shares which would be issuable upon (i) exercise of the remaining, nonexercised portion
of this Warrant beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the
unexercised or nonconverted portion of any other securities of the Company (including, without limitation, any other Common Stock Equivalents)
subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any
of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 2(d)(viii), beneficial
ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder,
it being acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance with Section
13(d) of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the
extent that the limitation contained in this Section 2(d)(viii) applies, the determination of whether this Warrant is exercisable (in
relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant
is exercisable shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s
determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates
and Attribution Parties) and of which portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation,
and the Company shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to
any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations
promulgated thereunder, and the Company shall have no obligation to verify or confirm the accuracy of such determination. For purposes
of this Section 2(d)(viii), in determining the number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding
shares of Common Stock as reflected in (A) the Company’s most recent periodic or annual report filed with the Securities and Exchange
Commission (the “Commission”), as the case may be, (B) a more recent public announcement by the Company or (C) a more
recent written notice by the Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding. Upon the written
or oral request of a Holder, the Company shall within one Trading Day confirm orally and in writing to the Holder the number of shares
of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect
to the conversion or exercise of securities of the Company, including this Warrant, by the Holder or its Affiliates or Attribution Parties
since the date as of which such number of outstanding shares of Common Stock was reported. The “Beneficial Ownership Limitation”
shall be [4.99/9.99]% of the number of shares of Common Stock outstanding immediately after giving effect to the issuance of the Warrant
Shares issuable upon exercise of this Warrant. The Holder, upon notice to the Company, may increase or decrease the Beneficial Ownership
Limitation provisions of this Section 2(d)(viii), provided that the Beneficial Ownership Limitation in no event exceeds 9.99% of the
number of shares of Common Stock outstanding immediately after giving effect to the issuance of Warrant Shares upon exercise of this
Warrant held by the Holder and the provisions of this Section 2(d)(viii) shall continue to apply. Any increase in the Beneficial Ownership
Limitation will not be effective until the 61st day after such notice is delivered to the Company. The provisions of this paragraph shall
be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 2(d)(viii) to correct this
paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation herein contained
or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this
paragraph shall apply to a successor holder of this Warrant. If the Warrant is unexercisable as a result of the Holder’s Beneficial
Ownership Limitation, no alternate consideration is owing to the Holder.
3.
Certain Adjustments.
(a)
Share Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a share dividend or otherwise
makes a distribution or distributions on shares of Common Stock or any other equity or Common Stock Equivalents securities payable in
shares of Common Stock (which, for avoidance of doubt, shall not include any Warrant Shares issued by the Company upon exercise of this
Warrant), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of reverse
share split) outstanding shares of Common Stock into a smaller number of shares, or (iv) issues by reclassification of shares of Common
Stock any shares of capital stock of the Company, then in each case the Exercise Price shall be multiplied by a fraction of which the
numerator shall be the number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately before such event
and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event, and the number of
shares issuable upon exercise of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this Warrant
remains unchanged. Any adjustment made pursuant to this Section 3(a) shall become effective immediately after the record date for the
determination of shareholders entitled to receive such dividend or distribution and shall become effective immediately after the effective
date in the case of a subdivision, combination or reclassification.
(b)
[RESERVED]
(c)
Subsequent Rights Offerings. In addition to any adjustments pursuant to Section 3(a) above, if at any time the Company grants,
issues or sells any Common Stock Equivalents or rights to purchase shares, warrants, securities or other property pro rata to the record
holders of any class of Common Stock (the “Purchase Rights”), then the Holder will be entitled to acquire, upon the
terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the
number of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise hereof,
including without limitation, the Beneficial Ownership Limitation) immediately before the date on which a record is taken for the grant,
issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of shares of Common
Stock are to be determined for the grant, issue or sale of such Purchase Rights (provided, however, that, to the extent that the Holder’s
right to participate in any such Purchase Right would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder
shall not be entitled to participate in such Purchase Right to such extent (or beneficial ownership of such shares of Common Stock as
a result of such Purchase Right to such extent) and such Purchase Right to such extent shall be held in abeyance for the Holder until
such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).
(d)
Pro Rata Distributions. During such time as this Warrant is outstanding, if the Company shall declare or make any dividend or
other distribution of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital
or otherwise (including, without limitation, any distribution of cash, shares or other securities, property or options by way of a dividend,
spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”),
at any time after the issuance of this Warrant, then, in each such case, the Holder shall be entitled to participate in such Distribution
to the same extent that the Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable
upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Beneficial
Ownership Limitation) immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the
date as of which the record holders of shares of Common Stock are to be determined for the participation in such Distribution (provided,
however, that, to the extent that the Holder’s right to participate in any such Distribution would result in the Holder exceeding
the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Distribution to such extent (or in
the beneficial ownership of any shares of Common Stock as a result of such Distribution to such extent) and the portion of such Distribution
shall be held in abeyance for the benefit of the Holder until such time, if ever, as its right thereto would not result in the Holder
exceeding the Beneficial Ownership Limitation).
(e)
Fundamental Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or
more related transactions effects any merger or consolidation of the Company with or into another Person, (ii) the Company (or any Subsidiary),
directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially
all of the Company’s assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer
or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Common Stock are permitted to
sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the
voting power of the common equity of the Company, (iv) the Company, directly or indirectly, in one or more related transactions effects
any reclassification, reorganization or recapitalization of the Common Stock or any compulsory share exchange pursuant to which the Common
Stock is effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly,
in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without
limitation, a reorganization, recapitalization, spin-off, merger or scheme of arrangement) with another Person or group of Persons whereby
such other Person or group acquires 50% or more of the voting power of the common equity of the Company, (each, a “Fundamental
Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Warrant
Share that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option
of the Holder (without regard to any limitation in Section 2(e) on the exercise of this Warrant), the number of shares of Common Stock
of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the
“Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of shares
of Common Stock for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation
in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be
appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of
one share of Common Stock in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration
in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Common
Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall
be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction.
The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor
Entity”) to assume in writing all of the obligations of the Company under this Warrant and the other Transaction Documents
in accordance with the provisions of this Section 3(e) pursuant to written agreements in form and substance reasonably satisfactory to
the Holder prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant
a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which
is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the
shares of Common Stock acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of
this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares
of capital stock (but taking into account the relative value of the shares of Common Stock pursuant to such Fundamental Transaction and
the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting
the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory
in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to,
and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant and the other
Transaction Documents referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right
and power of the Company and shall assume all of the obligations of the Company under this Warrant and the other Transaction Documents
with the same effect as if such Successor Entity had been named as the Company herein.
(f)
[RESERVED]
(g)
Calculations. All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share of Common
Stock, as the case may be. For purposes of this Section 3, the number of shares of Common Stock deemed to be issued and outstanding as
of a given date shall be the sum of the number of shares of Common Stock (excluding treasury shares, if any) issued and outstanding.
(h)
Notice to Holder.
(i)
Adjustment to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company
shall promptly deliver to the Holder by facsimile or email a notice setting forth the Exercise Price after such adjustment and any resulting
adjustment to the number of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
(ii)
Notice to Allow Exercise by Holder. If (A) the Company declares a dividend (or any other distribution in whatever form) on the
shares of Common Stock, (B) the Company declares a special nonrecurring cash dividend on, or a redemption of, the shares of Common Stock,
(C) the Company authorizes the granting to all holders of the shares of Common Stock rights or warrants to subscribe for or purchase
any shares of capital stock of any class or of any rights, (D) the approval of any shareholders of the Company is required in connection
with a Fundamental Transaction, or (E) the Company authorizes the voluntary or involuntary dissolution, liquidation or winding up of
the affairs of the Company, then, in each case, the Company shall cause to be delivered by facsimile or email to the Holder at its last
facsimile number or email address as it shall appear upon the Warrant Register of the Company, at least 20 calendar days prior to the
applicable record or effective date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose
of such dividend, distribution, redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders of
the Common Stock of record to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (y)
the date on which such reclassification, consolidation, merger, sale, transfer or share exchange is expected to become effective or close,
and the date as of which it is expected that holders of the shares of Common Stock of record shall be entitled to exchange their shares
of Common Stock for securities, cash or other property deliverable upon such reclassification, consolidation, merger, sale, transfer
or share exchange; provided that the failure to deliver such notice or any defect therein or in the delivery thereof shall not affect
the validity of the corporate action required to be specified in such notice and provided, further that no notice shall be required if
the information is disseminated in a press release or document filed with the Securities and Exchange Commission. To the extent that
any notice provided in this Warrant constitutes, or contains, material, non-public information regarding the Company or any of the Subsidiaries,
the Company shall simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K. The Holder shall remain
entitled to exercise this Warrant during the period commencing on the date of such notice to the effective date of the event triggering
such notice except as may otherwise be expressly set forth herein.
(i)
Voluntary Adjustment By Company. Subject to the rules and regulations of the Trading Market, the Company may at any time during
the term of this Warrant, subject to the prior written consent of the Holder, reduce the then current Exercise Price to any amount and
for any period of time deemed appropriate by the board of directors of the Company.
4.
Transfer of Warrant.
(a)
Transferability. This Warrant and all rights hereunder (including, without limitation, any registration rights) are transferable,
in whole or in part, upon surrender of this Warrant at the principal office of the Company or its designated agent, together with a written
assignment of this Warrant substantially in the form attached hereto duly executed by the Holder or its agent or attorney and funds sufficient
to pay any transfer taxes payable upon the making of such transfer. Upon such surrender and, if required, such payment, the Company shall
execute and deliver a new Warrant or Warrants in the name of the assignee or assignees, as applicable, and in the denomination or denominations
specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not
so assigned, and this Warrant shall promptly be cancelled. Notwithstanding anything herein to the contrary, the Holder shall not be required
to physically surrender this Warrant to the Company unless the Holder has assigned this Warrant in full, in which case, the Holder shall
surrender this Warrant to the Company within three (3) Trading Days of the date on which the Holder delivers an assignment form to the
Company assigning this Warrant in full. The Warrant, if properly assigned in accordance herewith, may be exercised by a new holder for
the purchase of Warrant Shares without having a new Warrant issued.
(b)
New Warrants. This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office of
the Company, together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed by
the Holder or its agent or attorney. Subject to compliance with Section 4(a), as to any transfer which may be involved in such division
or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided
or combined in accordance with such notice. All Warrants issued on transfers or exchanges shall be dated the initial issuance date of
this Warrant and shall be identical with this Warrant except as to the number of Warrant Shares issuable pursuant thereto.
(c)
Warrant Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the
“Warrant Register”), in the name of the record Holder hereof from time to time. The Company may deem and treat the
registered Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder,
and for all other purposes, absent actual notice to the contrary.
5.
Miscellaneous.
(a)
Currency. Unless otherwise indicated, all dollar amounts referred to in this Warrant are in United States Dollars (“U.S.
Dollars”). All amounts owing under this Warrant shall be paid in U.S. Dollars. All amounts denominated in other currencies
shall be converted in the U.S. Dollar equivalent amount in accordance with the Exchange Rate on the date of calculation. “Exchange
Rate” means, in relation to any amount of currency to be converted into U.S. Dollars pursuant to this Warrant, the U.S. Dollar
exchange rate as published in the Wall Street Journal (NY edition) on the relevant date of calculation.
(b)
No Rights as Stockholder Until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting rights,
dividends or other rights as a stockholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i), except as expressly
set forth in Section 3. Without limiting any rights of a Holder to receive Warrant Shares on a “cashless exercise” pursuant
to Section 2(c) or to receive cash payments pursuant to Section 2(d)(i) and Section 2(d)(iv) herein, in no event shall the Company be
required to net cash settle an exercise of this Warrant.
(c)
Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant Shares,
and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant,
shall not include the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the
Company will make and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant
or stock certificate.
(d)
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 Trading Day, then such action may be taken or such right may be exercised on the next succeeding Trading
Day.
(e)
Authorized Shares. The Company covenants that, during the period the Warrant is outstanding, it will reserve from its authorized
and unissued shares of Common Stock a sufficient number of shares to provide for the issuance of the Warrant Shares underlying this Warrant.
The Company further covenants that its issuance of this Warrant shall constitute full authority to its officers who are charged with
the duty of issuing the necessary Warrant Shares upon the exercise of the purchase rights under this Warrant. The Company will take all
such reasonable action as may be necessary to assure that such Warrant Shares may be issued and delivered, as provided herein without
violation of any applicable law or regulation, or of any requirements of the Trading Market upon which the Common Stock may be listed.
The Company covenants that all Warrant Shares which may be issued upon the exercise of the purchase rights represented by this Warrant
will, upon exercise of the purchase rights represented by this Warrant and payment for such Warrant Shares in accordance herewith, be
duly authorized, validly issued, fully paid and nonassessable and free from all taxes, liens and charges created by the Company in respect
of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously with such issue).
Except
and to the extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending
its articles of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of
securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but
will at all times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary
or appropriate to protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality of the
foregoing, the Company will (i) not increase the par value of any shares of Common Stock above the amount payable therefor upon such
exercise immediately prior to such increase in par value, (ii) take all such action as may be necessary or appropriate in order that
the Company may validly and legally issue fully paid and nonassessable shares of Common Stock upon the exercise of this Warrant and (iii)
use commercially reasonable efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having
jurisdiction thereof, as may be, necessary to enable the Company to perform its obligations under this Warrant.
Before
taking any action which would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the
Exercise Price, the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from
any public regulatory body or bodies having jurisdiction thereof.
(f)
Jurisdiction. All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be determined
in accordance with the provisions of the Agreement.
(g)
Restrictions. The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered, and
if the Holder does not utilize cashless exercise, will have restrictions upon resale imposed by state, federal or foreign securities
laws.
(h)
Nonwaiver and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall
operate as a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies. Without limiting any other provision
of this Warrant or the Agreement, if the Company willfully and knowingly fails to comply with any provision of this Warrant, which results
in any material damages to the Holder, the Company shall pay to the Holder such amounts as shall be sufficient to cover any costs and
expenses including, but not limited to, reasonable attorneys’ fees, including those of appellate proceedings, incurred by the Holder
in collecting any amounts due pursuant hereto or in otherwise enforcing any of its rights, powers or remedies hereunder.
(i)
Notices. Any notice, request or other document required or permitted to be given or delivered to the Holder by the Company shall
be delivered in accordance with the notice provisions of the Agreement.
(j)
Limitation of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant
to purchase Warrant Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of
the Holder for the purchase price of any shares of Common Stock or as a shareholder of the Company, whether such liability is asserted
by the Company or by creditors of the Company.
(k)
Remedies. The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will
be entitled to specific performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to
assert the defense in any action for specific performance that a remedy at law would be adequate.
(l)
Successors and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall
inure to the benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns
of Holder. The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall
be enforceable by the Holder or holder of Warrant Shares.
(m)
Amendment. This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company and
the Holder.
(n)
Severability. Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall
be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining
provisions of this Warrant.
(o)
Headings. The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed
a part of this Warrant.
********************
(Signature
Page Follows)
IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above
indicated.
|
TONIX
PHARMACEUTICALS HOLDING CORP. |
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By: |
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Name: |
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Title: |
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EXHIBIT
A
NOTICE
OF EXERCISE
TO:
TONIX PHARMACEUTICALS HOLDING CORP.
(1)
The undersigned hereby elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only
if exercised in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2)
Payment shall take the form of (check applicable box):
☐
in lawful money of the United States; or
☐
if permitted the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection
2(c), to exercise this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise procedure
set forth in subsection 2(c).
(3)
Please issue said Warrant Shares in the name of the undersigned or in such other name as is specified below:
The
Warrant Shares shall be delivered to the following DWAC Account Number: |
[SIGNATURE
OF HOLDER] |
|
Name
of Investing Entity: |
Signature
of Authorized Signatory of Investing Entity: |
Name
of Authorized Signatory: |
Title
of Authorized Signatory: |
Date: |
EXHIBIT
B
ASSIGNMENT
FORM
(To
assign the foregoing Warrant, execute this form and supply required information. Do not use this form to purchase shares.)
FOR
VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned to
Name: |
(Please
Print) |
Address: |
(Please
Print) |
Phone
Number: |
Email
Address: |
Dated: |
Holder’s
Signature: |
Holder’s
Address: |
Tonix Pharmaceuticals Holding Corp 8-K
Exhibit 4.02
WARRANT AGENT AGREEMENT
WARRANT AGENT AGREEMENT (this “Warrant Agreement”)
dated as of July 10, 2024 (the “Issuance Date”) between Tonix Pharmaceuticals Holding Corp., a company incorporated
under the laws of the State of Nevada (the “Company”), and VStock Transfer, LLC (the “Warrant Agent”).
WHEREAS, pursuant to the terms of that certain Placement Agency Agreement
(“Placement Agency Agreement”), dated July 9, 2024, by and among the Company and Dawson James Securities, Inc., as
placement agent, the Company is engaged in a registered public offering (the “Offering”) of up to 3,393,600 shares
(the “Shares”) of common stock, par value $0.001 per share (the “Common Stock”) of the Company and
up to 3,703,140 Pre-Funded Warrants (the “Warrants”) to purchase shares of Common Stock (the “Warrant Shares”);
WHEREAS, the Company has filed with the Securities and Exchange Commission
(the “Commission”) a Registration Statement, No. 333-266982, on Form S-3 (as the same may be amended from time to time,
the “Registration Statement”), for the registration under the Securities Act of 1933, as amended (the “Securities
Act”), of the Shares, Warrants and Warrant Shares, and such Registration Statement was declared effective on August 26, 2022;
WHEREAS, the Company desires the Warrant Agent to act on behalf of
the Company, and the Warrant Agent is willing to so act, in accordance with the terms set forth in this Warrant Agreement in connection
with the issuance, registration, transfer, exchange and exercise of the Warrants;
WHEREAS, the Company desires to provide for the provisions of the Warrants,
the terms upon which they shall be issued and exercised, and the respective rights, limitation of rights, and immunities of the Company,
the Warrant Agent, and the holders of the Warrants; and
WHEREAS, all acts and things have been done and performed which are
necessary to make the Warrants the valid, binding and legal obligations of the Company, and to authorize the execution and delivery of
this Warrant Agreement.
NOW, THEREFORE, in consideration of the mutual agreements herein contained,
the parties hereto agree as follows:
1.
Appointment of Warrant Agent. The Company hereby appoints the Warrant Agent to act as agent for the Company with respect to the
Warrants, and the Warrant Agent hereby accepts such appointment and agrees to perform the same in accordance with the express terms and
conditions set forth in this Warrant Agreement (and no implied terms or conditions).
2.1.
Form of Warrants. The Warrants shall be registered securities and shall be evidenced by a global certificate (“Global
Certificate”) in the form of Exhibit A to this Warrant Agreement, which shall be deposited on behalf of the Company with
a custodian for The Depository Trust Company (“DTC”) and registered in the name of Cede & Co., a nominee of DTC.
If DTC subsequently ceases to make its book-entry settlement system available for the Warrants, the Company may instruct the Warrant Agent
regarding making other arrangements for book-entry settlement. In the event that the Warrants are not eligible for, or it is no longer
necessary to have the Warrants available in, book-entry form, the Company may instruct the Warrant Agent to provide written instructions
to DTC to deliver to the Warrant Agent for cancellation the Global Certificate, and the Company shall instruct the Warrant Agent to deliver
to DTC separate certificates evidencing Warrants (“Definitive Certificates” and, together with the Global Certificate,
“Warrant Certificates”) registered as requested through the DTC system.
| 2.2. | Issuance and Registration of Warrants. |
2.2.1. Warrant Register.
The Warrant Agent shall maintain books (“Warrant Register”) for the registration of original issuance and the registration
of transfer of the Warrants.
2.2.2. Issuance
of Warrants. Upon the initial issuance of the Warrants, the Warrant Agent shall issue the Global Certificate and deliver the Warrants
in the DTC book-entry settlement system in accordance with written instructions delivered to the Warrant Agent by the Company. Ownership
of security entitlements in the Warrants shall be shown on, and the transfer of such ownership shall be effected through, records maintained
(i) by DTC and (ii) by institutions that have accounts with DTC (each, a “Participant”).
2.2.3. Beneficial
Owner; Holder. Prior to due presentment for registration of transfer of any Warrant, the Company and the Warrant Agent may deem and
treat the person in whose name that Warrant shall be registered on the Warrant Register (the “Holder”) as the absolute
owner of such Warrant for purposes of any exercise thereof, and for all other purposes, and neither the Company nor the Warrant Agent
shall be affected by any notice to the contrary. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Warrant
Agent or any agent of the Company or the Warrant Agent from giving effect to any written certification, proxy or other authorization furnished
by DTC governing the exercise of the rights of a holder of a beneficial interest in any Warrant. The rights of beneficial owners in a
Warrant evidenced by the Global Certificate shall be exercised by the Holder or a Participant through the DTC system, except to the extent
set forth herein or in the Global Certificate.
2.2.4. Execution.
The Warrant Certificates shall be executed on behalf of the Company by any authorized officer of the Company (an “Authorized
Officer”), which need not be the same authorized signatory for all of the Warrant Certificates, either manually or by facsimile
signature. The Warrant Certificates shall be countersigned by an authorized signatory of the Warrant Agent, which need not be the same
signatory for all of the Warrant Certificates, and no Warrant Certificate shall be valid for any purpose unless so countersigned. In case
any Authorized Officer of the Company that signed any of the Warrant Certificates ceases to be an Authorized Officer of the Company before
countersignature by the Warrant Agent and issuance and delivery by the Company, such Warrant Certificates, nevertheless, may be countersigned
by the Warrant Agent, issued and delivered with the same force and effect as though the person who signed such Warrant Certificates had
not ceased to be such officer of the Company; and any Warrant Certificate may be signed on behalf of the Company by any person who, at
the actual date of the execution of such Warrant Certificate, shall be an Authorized Officer of the Company authorized to sign such Warrant
Certificate, although at the date of the execution of this Warrant Agreement any such person was not such an Authorized Officer.
2.2.5. Registration
of Transfer. At any time at or prior to the Expiration Date (as defined below), a transfer of any Warrants may be registered and any
Warrant Certificate or Warrant Certificates may be split up, combined or exchanged for another Warrant Certificate or Warrant Certificates
evidencing the same number of Warrants as the Warrant Certificate or Warrant Certificates surrendered. Any Holder desiring to register
the transfer of Warrants or to split up, combine or exchange any Warrant Certificate shall make such request in writing delivered to the
Warrant Agent, and shall surrender to the Warrant Agent the Warrant Certificate or Warrant Certificates evidencing the Warrants the transfer
of which is to be registered or that is or are to be split up, combined or exchanged and, in the case of registration of transfer, shall
provide a signature guarantee. Thereupon, the Warrant Agent shall countersign and deliver to the person entitled thereto a Warrant Certificate
or Warrant Certificates, as the case may be, as so requested. The Company and the Warrant Agent may require payment, by the Holder requesting
a registration of transfer of Warrants or a split-up, combination or exchange of a Warrant Certificate (but, for purposes of clarity,
not upon the exercise of the Warrants and issuance of Warrant Shares to the Holder), of a sum sufficient to cover any tax or governmental
charge that may be imposed in connection with such registration of transfer, split-up, combination or exchange, together with reimbursement
to the Company and the Warrant Agent of all reasonable expenses incidental thereto.
2.2.6. Loss, Theft
and Mutilation of Warrant Certificates. Upon receipt by the Company and the Warrant Agent of evidence reasonably satisfactory to them
of the loss, theft, destruction or mutilation of a Warrant Certificate, and, in case of loss, theft or destruction, of indemnity or security
in customary form and amount, and reimbursement to the Company and the Warrant Agent of all reasonable expenses incidental thereto, and
upon surrender to the Warrant Agent and cancellation of the Warrant Certificate if mutilated, the Warrant Agent shall, on behalf of the
Company, countersign and deliver a new Warrant Certificate of like tenor to the Holder in lieu of the Warrant Certificate so lost, stolen,
destroyed or mutilated. The Warrant Agent may charge the Holder an administrative fee for processing the replacement of lost Warrant Certificates,
which shall be charged only once in instances where a single surety bond obtained covers multiple certificates. The Warrant Agent may
receive compensation from the surety companies or surety agents for administrative services provided to them.
2.2.7. Proxies.
The Holder of a Warrant may grant proxies or otherwise authorize any person, including the Participants and beneficial holders that may
own interests through the Participants, to take any action that a Holder is entitled to take under this Agreement or the Warrants; provided,
however, that at all times that Warrants are evidenced by a Global Certificate, exercise of those Warrants shall be effected on
their behalf by Participants through DTC in accordance the procedures administered by DTC.
| 3. | Terms and Exercise of Warrants. |
3.1.
Price. Each Warrant shall entitle the Holder, subject to the provisions of the applicable Warrant Certificate and of this Warrant
Agreement, to purchase from the Company the number of shares of Common Stock stated therein, at the price of $0.001 per whole share, subject
to the subsequent adjustments provided in Section 4 hereof. The term “Exercise Price” as used in this Warrant Agreement
refers to the price per share at which shares of Common Stock may be purchased at the time a Warrant is exercised.
3.2.
Duration of Warrants. Each Warrant may be exercised only during the period (“Exercise Period”) commencing on
the Issuance Date and terminating once such Warrant has been exercised (“Expiration Date”).
3.3.
Exercise of Warrants.
3.3.1. Exercise
and Payment. (a) Subject to the provisions of this Warrant Agreement, a Holder (or a Participant or a designee of a Participant acting
on behalf of a Holder) may exercise Warrants by delivering to the Warrant Agent, not later than 5:00 P.M., Eastern Standard Time, on any
business day during the Exercise Period an election to purchase the Warrant Shares underlying the Warrants to be exercised (i) in the
form included in Exhibit B to this Warrant Agreement or (ii) via an electronic warrant exercise through the DTC system (each, an
“Election to Purchase”). No later than one (1) Trading Day following delivery of an Election to Purchase, the Holder (or a
Participant acting on behalf of a Holder in accordance with DTC procedures) shall: (i) (A) surrender of the Warrant Certificate evidencing
the Warrants to the Warrant Agent at its office designated for such purpose or (B) delivery of the Warrants to an account of the Warrant
Agent at DTC designated for such purpose in writing by the Warrant Agent to DTC from time to time, and (ii) deliver to the Company the
Exercise Price for each Warrant to be exercised, in lawful money of the United States of America by certified or official bank check payable
to the Company or bank wire transfer in immediately available funds to:
[Wire Instructions]
Any person so designated by the Holder (or a Participant or designee
of a Participant on behalf of a Holder) to receive Warrant Shares shall be deemed to have become holder of record of such Warrant Shares
as of the time that an appropriately completed and duly signed Election to Purchase has been delivered to the Warrant Agent, provided
that the Holder (or Participant on behalf of the Holder) makes delivery of the deliverables referenced in the immediately preceding sentence
by the date that is one (1) Trading Day after the delivery of the Election to Purchase. If the Holder (or Participant on behalf of the
Holder) fails to make delivery of such deliverables on or prior to the Trading Day following delivery of the Election to Purchase, such
Election to Purchase shall be void ab initio.
(b) If any of (i) the Warrants, (ii) the Election to Purchase, or (iii)
the Exercise Price therefor, is received by the Warrant Agent on any date after 5:00 P.M., Eastern Standard Time, or on a date that is
not a Trading Day, the Warrants with respect thereto will be deemed to have been received and exercised on the Trading Day next succeeding
such date. “Business day” means a day other than a Saturday or Sunday on which commercial Banks in New York City are
open for the general conduct of banking business. The “Exercise Date” will be the date on which the materials in the
foregoing sentence are received by the Warrant Agent (if by 5:00 P.M., New York City time), or the following Trading Day (if after 5:00
P.M., New York City time), regardless of any earlier date written on the materials. If the Warrants are received or deemed to be received
after the Expiration Date, the exercise thereof will be null and void and any funds delivered to the Company will be returned to the Holder
or Participant, as the case may be, as soon as practicable. In no event will interest accrue on any funds deposited with the Company in
respect of an exercise or attempted exercise of Warrants.
(c) If less than all the Warrants evidenced by a surrendered Warrant
Certificate are exercised, the Warrant Agent shall split up the surrendered Warrant Certificate and return to the Holder a Warrant Certificate
evidencing the Warrants that were not exercised.
3.3.2. Issuance
of Warrant Shares. (a) The Warrant Agent shall, by 11:00 a.m., New York City time, on the Trading Day following the Exercise Date
of any Warrant, advise the Company, the transfer agent and registrar for the Company’s Common Stock, in respect of (i) the number
of Warrant Shares indicated on the Election to Purchase as issuable upon such exercise with respect to such exercised Warrants, (ii) the
instructions of the Holder or Participant, as the case may be, provided to the Warrant Agent with respect to the delivery of the Warrant
Shares and the number of Warrants that remain outstanding after such exercise and (iii) such other information as the Company or such
transfer agent and registrar shall reasonably request.
(b) The Company shall, by no later than 5:00 P.M., Eastern Standard
Time, on the third Trading Day following the Exercise Date of any Warrant and the clearance of the funds in payment of the Exercise Price
(such date and time, the “Delivery Time”), cause its registrar to electronically transmit the Warrant Shares issuable
upon that exercise to DTC by crediting the account of DTC or of the Participant, as the case may be, through its Deposit Withdrawal Agent
Commission system.
3.3.3. Valid Issuance.
All Warrant Shares issued by the Company upon the proper exercise of a Warrant in conformity with this Warrant Agreement shall be validly
issued, fully paid and non-assessable.
3.3.4. No Fractional
Exercise. No fractional Warrant Shares will be issued upon the exercise of the Warrant. If, by reason of any adjustment made pursuant
to Section 4, a Holder would be entitled, upon the exercise of such Warrant, to receive a fractional interest in a share, the Company
shall, upon such exercise, round up or down, as applicable, to the nearest whole number the number of Warrant Shares to be issued to such
Holder.
3.3.5. No Transfer
Taxes. The Company shall not be required to pay any stamp or other tax or governmental charge required to be paid in connection with
any transfer involved in the issue of the Warrant Shares upon the exercise of Warrants; and in the event that any such transfer is involved,
the Company shall not be required to issue or deliver any Warrant Shares until such tax or other charge shall have been paid or it has
been established to the Company’s satisfaction that no such tax or other charge is due.
3.3.6. Date of Issuance.
The Company will treat an exercising Holder as a beneficial owner of the Warrant Shares as of the Exercise Date, except that, if the Exercise
Date is a date when the stock transfer books of the Company are closed, such person shall be deemed to have become the holder of such
shares at the open of business on the next succeeding date on which the stock transfer books are open.
3.3.7. Restrictive
Legend Events; Cashless Exercise Under Certain Circumstances. (a) The Company shall use it reasonable best efforts to maintain the
effectiveness of the Registration Statement and the current status of the prospectus included therein or to file and maintain the effectiveness
of another registration statement and another current prospectus covering the Warrants and the Warrant Shares at any time that the Warrants
are exercisable. The Company shall provide to the Warrant Agent and each Holder prompt written notice of any time that the Company is
unable to deliver the Warrant Shares via DTC transfer or otherwise without restrictive legend because (i) the Commission has issued a
stop order with respect to the Registration Statement, (ii) the Commission otherwise has suspended or withdrawn the effectiveness of the
Registration Statement, either temporarily or permanently, (iii) the Company has suspended or withdrawn the effectiveness of the Registration
Statement, either temporarily or permanently, (iv) the prospectus contained in the Registration Statement is not available for the issuance
of the Warrant Shares to the Holder or (v) otherwise (each a “Restrictive Legend Event”). To the extent that the Warrants
cannot be exercised as a result of a Restrictive Legend Event or a Restrictive Legend Event occurs after a Holder has exercised Warrants
in accordance with the terms of the Warrants but prior to the delivery of the Warrant Shares, the Company shall, at the election of the
Holder, which shall be given within five (5) days of receipt of such notice of the Restrictive Legend Event, either (i) rescind the previously
submitted Election to Purchase and the Company shall return all consideration paid by registered holder for such shares upon such rescission
or (ii) treat the attempted exercise as a cashless exercise as described in paragraph (b) below and refund the cash portion of the exercise
price to the Holder. (b) If a Restrictive Legend Event has occurred, the Warrant shall only be exercisable on a cashless basis. Notwithstanding
anything herein to the contrary, the Company shall not be required to make any cash payments or net cash settlement to the Holder in lieu
of delivery of the Warrant Shares. Upon a “cashless exercise”, the Holder shall be entitled to receive the number of Warrant
Shares equal to the quotient obtained by dividing (A-B) (X) by (A), where:
| (A) | = the VWAP on the Trading Day immediately preceding the Exercise Date; |
(B) = the Exercise Price of the Warrant, as adjusted
as set forth herein; and
(X) = the number of Warrant Shares that would be issuable
upon exercise of the Warrant in accordance with the terms of the Warrant if such exercise were by means of a cash exercise rather
than a cashless exercise.
If the Warrant Shares are issued in such a cashless exercise, the Company
acknowledges and agrees that, in accordance with Section 3(a)(9) of the Securities Act, the Warrant Shares shall take on the registered
characteristics of the Warrants being exercised and the Company agrees not to take any position contrary thereto. Upon receipt of an Election
to Purchase for a cashless exercise, the Warrant Agent will promptly deliver a copy of the Election to Purchase to the Company to confirm
the number of Warrant Shares issuable in connection with the cashless exercise. The Company shall calculate and transmit to the Warrant
Agent in a written notice, and the Warrant Agent shall have no duty, responsibility or obligation under this section to calculate, the
number of Warrant Shares issuable in connection with any cashless exercise. The Warrant Agent shall be entitled to rely conclusively on
any such written notice provided by the Company, and the Warrant Agent shall not be liable for any action taken, suffered or omitted to
be taken by it in accordance with such written instructions or pursuant to this Warrant Agreement.
3.3.8. Disputes.
In the case of a dispute as to the determination of the Exercise Price or the arithmetic calculation of the number of Warrant Shares issuable
in connection with any exercise, the Company shall promptly deliver to the Holder the number of Warrant Shares that are not disputed.
3.3.9. Beneficial
Ownership Limitation. A Holder shall not have the right to exercise any Warrants to the extent that after giving effect to the issuance
of Warrant Shares after exercise as set forth on the applicable Election to Purchase, such Holder or a person holding through such Holder
(together with such Holder’s or person’s Affiliates (as defined in Rule 405 under the Securities Act), and any other persons
acting as a group together with that Holder or person or any of that Holder’s or person’s Affiliates), would beneficially
own in excess of 4.99% (“Beneficial Ownership Limitation”) of the Company’s Common Stock. For purposes of the
foregoing sentence, the number of shares of Common Stock beneficially owned by a person shall include the number of Warrant Shares that
would be owned by that person issuable upon exercise of the Warrants with respect to which such determination is being made, but shall
exclude the number of shares of Common Stock (a) which would be issuable upon exercise of the remaining, non-exercised Warrants beneficially
owned by that person or any of its Affiliates and (b) underlying any other securities of the Company held by such Holder or its Affiliates
that are exercisable or convertible into Common Stock and subject to a limitation on conversion or exercise that is analogous to the limitation
contained in this Section 3.3.9. Except as set forth in the preceding sentence, for purposes of this Section 3.3.9, beneficial ownership
shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)
and the rules and regulations promulgated thereunder, it being acknowledged by the Holder that neither the Warrant Agent nor the Company
is representing to the Holder that such calculation is in compliance with Section 13(d) of the Exchange Act and the Holder or beneficial
owner is solely responsible for any schedules required to be filed in accordance therewith. To the extent that the limitation contained
in this Section 3.3.9 applies, the determination of whether a Warrant is exercisable and of the number of Warrants that are exercisable
shall be in the sole discretion of the Holder, and the submission of an Election to Purchase shall be deemed to be the Holder’s
determination of whether such Warrant is exercisable and of the number of Warrants that are exercisable, and neither the Warrant Agent
nor the Company shall have any obligation to verify or confirm the accuracy of such determination and neither of them shall have any liability
for any error made by the Holder or any other person. In addition, a determination as to any group status as contemplated above shall
be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes
of this Section 3.3.9, in determining the number of outstanding shares of Common Stock, a Holder or other person may rely on the number
of outstanding shares of Common Stock as reflected in (a) the Company’s most recent periodic or annual report filed with the Securities
and Exchange Commission, as the case may be, (b) a more recent public announcement by the Company or (c) a more recent written notice
by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. For any reason at
any time, upon the written or oral request of a person that represents that it is or is acting on behalf of a Holder, the Company shall,
within two (2) Trading Days, confirm orally or in writing or by e-mail to that person the number of shares of Common Stock then outstanding.
Upon delivery of a written notice to the Company, the Holder may from time to time increase or decrease the Beneficial Ownership Limitation
to any other percentage not in excess of 9.99% as specified in such notice, provided that any increase in the Beneficial Ownership Limitation
will not be effective until the sixty-first (61st) day after such notice is delivered to the Company and any such increase
or decrease will apply only to the Holder and its Affiliates and not to any other holder of Warrants. The provisions of this Section 3.3.9
shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 3.3.9 to correct this
subsection (or any portion hereof) which may be defective or inconsistent with the intended beneficial ownership limitation herein contained.
4.1.
Adjustment upon Subdivisions or Combinations. If the Company at any time after the Issuance Date subdivides (by any stock split,
stock dividend, recapitalization, reorganization, scheme, arrangement or otherwise) its outstanding shares of Common Stock into a greater
number of shares, the Exercise Price in effect immediately prior to such subdivision will be proportionately reduced and the number of
Warrant Shares will be proportionately increased. If the Company at any time after the Issuance Date combines (by any stock split, stock
dividend, recapitalization, reorganization, scheme, arrangement or otherwise) its outstanding shares of Common Stock into a smaller number
of shares, the Exercise Price in effect immediately prior to such combination will be proportionately increased and the number of Warrant
Shares will be proportionately decreased. Any adjustment under this Section 4.1 shall become effective at the close of business on the
date the subdivision or combination becomes effective. The Company shall promptly notify Warrant Agent of any such adjustment and give
specific instructions to Warrant Agent with respect to any adjustments to the warrant register.
4.2.
Adjustment for Other Distributions. In the event the Company shall fix a record date for the making of a dividend or distribution
to all holders of Common Stock of any evidences of indebtedness or assets or subscription rights, options or warrants (excluding those
referred to in Section 4.1 or other dividends paid out of retained earnings), then in each such case the Holder will, upon the exercise
of Warrants, be entitled to receive, in addition to the number of Warrant Shares issuable thereupon, and without payment of any additional
consideration therefor, the amount of such dividend or distribution, as applicable, which such Holder would have held on the date of such
exercise had such Holder been the holder of record of such Warrant Shares as of the date on which holders of Common Stock became entitled
to receive such dividend or distribution. Such adjustment shall be made whenever any such distribution is made and shall become effective
immediately after the record date mentioned above.
4.3.
Reclassification, Consolidation, Purchase, Combination, Sale or Conveyance. If, at any time while the Warrants are outstanding,
(a) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or
into another person, (b) the Company, directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other
disposition of all or substantially all of its assets in one or a series of related transactions, (c) any, direct or indirect, purchase
offer, tender offer or exchange offer (whether by the Company or another person) is completed pursuant to which holders of Common Stock
are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of
50% or more of the outstanding Common Stock (not including any Common Stock held by the other person or other persons making or party
to, or associated or affiliated with the other persons making, such purchase offer, tender offer or exchange offer), (d) the Company,
directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Common
Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities,
cash or property, or (e) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase
agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement)
with another person whereby such other person acquires more than 50% of the outstanding shares of Common Stock (not including any shares
of Common Stock held by the other person or other persons making or party to, or associated or affiliated with the other persons making
or party to, such stock or share purchase agreement or other business combination) (each a “Fundamental Transaction”),
then, upon any subsequent exercise of a Warrant, each Holder shall have the right to receive, for each Warrant Share that would have been
issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction (without regard to any limitation in Section
3.3.9 on the exercise of the Warrants), the same amount and kind of securities, cash or property, if any, of the successor or acquiring
corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”)
receivable as a result of such Fundamental Transaction by a holder of the number of shares of Common Stock for which each Warrant is exercisable
immediately prior to such Fundamental Transaction (without regard to any limitation in Section 3.3.9 on the exercise of the Warrants).
For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate
Consideration based on the amount of Alternate Consideration issuable in respect of one share of Common Stock in such Fundamental Transaction,
and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value
of any different components of the Alternate Consideration. If holders of Common Stock are given any choice as to the securities, cash
or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration
that such Holder receives upon any exercise of each Warrant following such Fundamental Transaction. The Company shall cause any successor
entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) and for which
stockholders received any equity securities of the Successor Entity and for which stockholders received any equity securities of the Successor
Entity, to assume in writing all of the obligations of the Company under this Warrant Agreement in accordance with the provisions of this
Section 4.3 pursuant to written agreements and shall, upon the written request of such Holder, deliver to such Holder in exchange for
the applicable Warrants created by this Warrant Agreement a security of the Successor Entity evidenced by a written instrument substantially
similar in form and substance to the Warrants which are exercisable for a corresponding number of shares of capital stock of such Successor
Entity (or its parent entity), if any, plus any Alternate Consideration, receivable as a result of such Fundamental Transaction by a holder
of the number of shares of Common Stock for which the Warrants are exercisable immediately prior to such Fundamental Transaction, and
with an exercise price which applies the Exercise Price hereunder to such shares of capital stock, if any, plus any Alternate Consideration
(but taking into account the relative value of the shares of Common Stock pursuant to such Fundamental Transaction and the value of such
shares of capital stock plus Alternative consideration after that Fundamental Transaction for the purpose of protecting the economic value
of such Warrant immediately prior to the consummation of such Fundamental Transaction). Upon the occurrence of any such Fundamental Transaction
the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions
of this Warrant Agreement and the Warrants referring to the “Company” shall refer instead to the Successor Entity), and may
exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant Agreement and
the Warrants with the same effect as if such Successor Entity had been named as the Company herein and therein. The Company shall instruct
the Warrant Agent in writing to mail by first class mail, postage prepaid, to each Holder, written notice of the execution of any such
amendment, supplement or agreement with the Successor Entity. Any supplemented or amended agreement entered into by the successor corporation
or transferee shall provide for adjustments, which shall be as nearly equivalent as may be practicable to the adjustments provided for
in this Section 4.3. The Warrant Agent shall have no duty, responsibility or obligation to determine the correctness of any provisions
contained in such agreement or such notice, including but not limited to any provisions relating either to the kind or amount of securities
or other property receivable upon exercise of warrants or with respect to the method employed and provided therein for any adjustments,
and shall be entitled to rely conclusively for all purposes upon the provisions contained in any such agreement. The provisions of this
Section 4.3 shall similarly apply to successive reclassifications, changes, consolidations, mergers, sales and conveyances of the kind
described above.
4.4.
[Intentionally left blank]
4.5.
Other Events. If any event occurs of the type contemplated by the provisions of Section 4.1 or 4.2 but not expressly provided for
by such provisions (including, without limitation, the granting of stock appreciation rights, Adjustment Rights, phantom stock rights
or other rights with equity features to all holders of Common Stock for no consideration), then the Company's Board of Directors will,
at its discretion and in good faith, make an adjustment in the Exercise Price and the number of Warrant Shares or designate such additional
consideration to be deemed issuable upon exercise of a Warrant, so as to protect the rights of the registered Holder. No adjustment to
the Exercise Price will be made pursuant to more than one sub-section of this Section 4 in connection with a single issuance.
4.6.
Notices of Changes in Warrant. Upon every adjustment of the Exercise Price or the number of Warrant Shares issuable upon exercise
of a Warrant, the Company shall give written notice thereof to the Warrant Agent, which notice shall state the Exercise Price resulting
from such adjustment and the increase or decrease, if any, in the number of Warrant Shares purchasable at such price upon the exercise
of a Warrant, setting forth in reasonable detail the method of calculation and the facts upon which such calculation is based. Upon the
occurrence of any event specified in Sections 4.1 or 4.2, then, in any such event, the Company shall give written notice to each Holder,
at the last address set forth for such holder in the Warrant Register, as of the record date or the effective date of the event. Failure
to give such notice, or any defect therein, shall not affect the legality or validity of such event. The Warrant Agent shall be entitled
to rely conclusively on, and shall be fully protected in relying on, any certificate, notice or instructions provided by the Company with
respect to any adjustment of the Exercise Price or the number of shares issuable upon exercise of a Warrant, or any related matter, and
the Warrant Agent shall not be liable for any action taken, suffered or omitted to be taken by it in accordance with any such certificate,
notice or instructions or pursuant to this Warrant Agreement. The Warrant Agent shall not be deemed to have knowledge of any such adjustment
unless and until it shall have received written notice thereof from the Company.
5.
Restrictive Legends; Fractional Warrants. In the event that a Warrant Certificate surrendered for transfer bears a restrictive
legend, the Warrant Agent shall not register that transfer until the Warrant Agent has received an opinion of counsel for the Company
stating that such transfer may be made and indicating whether the Warrants must also bear a restrictive legend upon that transfer. The
Warrant Agent shall not be required to effect any registration of transfer or exchange which will result in the transfer of or delivery
of a Warrant Certificate for a fraction of a Warrant.
6.
Other Provisions Relating to Rights of Holders of Warrants.
6.1.
No Rights as Stockholder. Except as otherwise specifically provided herein, a Holder, solely in its capacity as a holder of Warrants,
shall not be entitled to vote or receive dividends or be deemed the holder of share capital of the Company for any purpose, nor shall
anything contained in this Warrant Agreement be construed to confer upon a Holder, solely in its capacity as the registered holder of
Warrants, any of the rights of a stockholder of the Company or any right to vote, give or withhold consent to any corporate action (whether
any reorganization, issue of stock, reclassification of share capital, consolidation, merger, conveyance or otherwise), receive notice
of meetings, receive dividends or subscription rights or rights to participate in new issues of shares, or otherwise, prior to the issuance
to the Holder of the Warrant Shares which it is then entitled to receive upon the due exercise of Warrants.
6.2.
Reservation of Common Stock. The Company shall at all times reserve and keep available a number of its authorized but unissued
shares of Common Stock that will be sufficient to permit the exercise in full of all outstanding Warrants issued pursuant to this Warrant
Agreement.
| 7. | Concerning the Warrant Agent and Other Matters. |
7.1.
Any instructions given to the Warrant Agent orally, as permitted by any provision of this Warrant Agreement, shall be confirmed in writing
by the Company as soon as practicable. The Warrant Agent shall not be liable or responsible and shall be fully authorized and protected
for acting, or failing to act, in accordance with any oral instructions which do not conform with the written confirmation received in
accordance with this Section 7.1.
7.2.
(a) Whether or not any Warrants are exercised, for the Warrant Agent’s services as agent for the Company hereunder, the Company
shall pay to the Warrant Agent such fees as may be separately agreed between the Company and Warrant Agent and the Warrant Agent’s
out of pocket expenses in connection with this Warrant Agreement, including, without limitation, the fees and expenses of the Warrant
Agent’s counsel. While the Warrant Agent endeavors to maintain out-of-pocket charges (both internal and external) at competitive
rates, these charges may not reflect actual out-of-pocket costs, and may include handling charges to cover internal processing and use
of the Warrant Agent’s billing systems. (b) All amounts owed by the Company to the Warrant Agent under this Warrant Agreement are
due within 30 days of the invoice date. Delinquent payments are subject to a late payment charge of one and one-half percent (1.5%) per
month commencing 45 days from the invoice date. The Company agrees to reimburse the Warrant Agent for any attorney’s fees and any
other costs associated with collecting delinquent payments. (c) No provision of this Warrant Agreement shall require Warrant Agent to
expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties under this Warrant Agreement
or in the exercise of its rights.
7.3.
As agent for the Company hereunder the Warrant Agent: (a) shall have no duties or obligations other than those specifically set forth
herein or as may subsequently be agreed to in writing by the Warrant Agent and the Company; (b) shall be regarded as making no representations
and having no responsibilities as to the validity, sufficiency, value, or genuineness of the Warrants or any Warrant Shares; (c) shall
not be obligated to take any legal action hereunder; (d) if, however, the Warrant Agent determines to take any legal action hereunder,
and where the taking of such action might, in its judgment, subject or expose it to any expense or liability it shall not be required
to act unless it has been furnished with an indemnity reasonably satisfactory to it; (e) may rely on and shall be fully authorized
and protected in acting or failing to act upon any certificate, instrument, opinion, notice, letter, telegram, telex, facsimile transmission
or other document or security delivered to the Warrant Agent and believed by it to be genuine and to have been signed by the proper party
or parties; (f) shall not be liable or responsible for any recital or statement contained in the Registration Statement or any other documents
relating thereto; (g) shall not be liable or responsible for any failure on the part of the Company to comply with any of its covenants
and obligations relating to the Warrants, including without limitation obligations under applicable securities laws; (h) may rely on and
shall be fully authorized and protected in acting or failing to act upon the written, telephonic or oral instructions with respect to
any matter relating to its duties as Warrant Agent covered by this Warrant Agreement (or supplementing or qualifying any such actions)
of officers of the Company, and is hereby authorized and directed to accept instructions with respect to the performance of its duties
hereunder from the Company or counsel to the Company, and may apply to the Company, for advice or instructions in connection with the
Warrant Agent’s duties hereunder, and the Warrant Agent shall not be liable for any delay in acting while waiting for those instructions;
any applications by the Warrant Agent for written instructions from the Company may, at the option of the Agent, set forth in writing
any action proposed to be taken or omitted by the Warrant Agent under this Warrant Agreement and the date on or after which such action
shall be taken or such omission shall be effective; the Warrant Agent shall not be liable for any action taken by, or omission of, the
Warrant Agent in accordance with a proposal included in such application on or after the date specified in such application (which date
shall not be less than five business days after the date such application is sent to the Company, unless the Company shall have consented
in writing to any earlier date) unless prior to taking any such action, the Warrant Agent shall have received written instructions in
response to such application specifying the action to be taken or omitted; (i) may consult with counsel satisfactory to the Warrant Agent,
including its in-house counsel, and the advice of such counsel shall be full and complete authorization and protection in respect of any
action taken, suffered, or omitted by it hereunder in good faith and in accordance with the advice of such counsel; (j) may perform any
of its duties hereunder either directly or by or through nominees, correspondents, designees, or subagents, and it shall not be liable
or responsible for any misconduct or negligence on the part of any nominee, correspondent, designee, or subagent appointed with reasonable
care by it in connection with this Warrant Agreement; (k) is not authorized, and shall have no obligation, to pay any brokers, dealers,
or soliciting fees to any person; and (l) shall not be required hereunder to comply with the laws or regulations of any country other
than the United States of America or any political subdivision thereof.
7.4.
(a) In the absence of gross negligence or willful or illegal misconduct on its part, the Warrant Agent shall not be liable for any action
taken, suffered, or omitted by it or for any error of judgment made by it in the performance of its duties under this Warrant Agreement.
Anything in this Warrant Agreement to the contrary notwithstanding, in no event shall Warrant Agent be liable for special, indirect, incidental,
consequential or punitive losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent
has been advised of the possibility of such losses or damages and regardless of the form of action. Any liability of the Warrant Agent
will be limited in the aggregate to the amount of fees paid by the Company hereunder. The Warrant Agent shall not be liable for any failures,
delays or losses, arising directly or indirectly out of conditions beyond its reasonable control including, but not limited to, acts of
government, exchange or market ruling, suspension of trading, work stoppages or labor disputes, fires, civil disobedience, riots, rebellions,
storms, electrical or mechanical failure, computer hardware or software failure, communications facilities failures including telephone
failure, war, terrorism, insurrection, earthquakes, floods, acts of God or similar occurrences. (b) In the event any question or dispute
arises with respect to the proper interpretation of the Warrants or the Warrant Agent’s duties under this Warrant Agreement or the
rights of the Company or of any Holder, the Warrant Agent shall not be required to act and shall not be held liable or responsible for
its refusal to act until the question or dispute has been judicially settled (and, if appropriate, it may file a suit in interpleader
or for a declaratory judgment for such purpose) by final judgment rendered by a court of competent jurisdiction, binding on all persons
interested in the matter which is no longer subject to review or appeal, or settled by a written document in form and substance satisfactory
to Warrant Agent and executed by the Company and each such Holder. In addition, the Warrant Agent may require for such purpose, but shall
not be obligated to require, the execution of such written settlement by all the Holders and all other persons that may have an interest
in the settlement.
7.5.
The Company covenants to indemnify the Warrant Agent and hold it harmless from and against any loss, liability, claim or expense (“Loss”)
arising out of or in connection with the Warrant Agent’s duties under this Warrant Agreement, including the costs and expenses of
defending itself against any Loss, unless such Loss shall have been determined by a court of competent jurisdiction to be a result of
the Warrant Agent’s gross negligence or willful misconduct.
7.6.
Unless terminated earlier by the parties hereto, this Agreement shall terminate 90 days after the earlier of the Expiration Date and the
date on which no Warrants remain outstanding (the “Termination Date”). On the business day following the Termination
Date, the Agent shall deliver to the Company any entitlements, if any, held by the Warrant Agent under this Warrant Agreement. The Agent’s
right to be reimbursed for fees, charges and out-of-pocket expenses as provided in this Section 8 shall survive the termination of this
Warrant Agreement.
7.7.
If any provision of this Warrant Agreement shall be held illegal, invalid, or unenforceable by any court, this Warrant Agreement shall
be construed and enforced as if such provision had not been contained herein and shall be deemed an Agreement among the parties to it
to the full extent permitted by applicable law.
7.8.
The Company represents and warrants that: (a) it is duly incorporated and validly existing under the laws of its jurisdiction of incorporation;
(b) the offer and sale of the Warrants and the execution, delivery and performance of all transactions contemplated thereby (including
this Warrant Agreement) have been duly authorized by all necessary corporate action and will not result in a breach of or constitute a
default under the articles of association, bylaws or any similar document of the Company or any indenture, agreement or instrument to
which it is a party or is bound; (c) this Warrant Agreement has been duly executed and delivered by the Company and constitutes the legal,
valid, binding and enforceable obligation of the Company; (d) the Warrants will comply in all material respects with all applicable requirements
of law; and (e) to the best of its knowledge, there is no litigation pending or threatened as of the date hereof in connection with the
offering of the Warrants.
7.9.
In the event of inconsistency between this Warrant Agreement and the descriptions in the Registration Statement, as they may from time
to time be amended, the terms of this Warrant Agreement shall control.
7.10.
Set forth in Exhibit C hereto is a list of the names and specimen signatures of the persons authorized to act for the Company under
this Warrant Agreement (the “Authorized Representatives”). The Company shall, from time to time, certify to you the
names and signatures of any other persons authorized to act for the Company under this Warrant Agreement.
7.11.
Except as expressly set forth elsewhere in this Warrant Agreement, all notices, instructions and communications under this Agreement shall
be in writing, shall be effective upon receipt and shall be addressed, if to the Company, to its address set forth beneath its signature
to this Agreement, or, if to the Warrant Agent, to VStock Transfer, LLC 18 Lafayette Place, Woodmere, New York 11598, or to such other
address of which a party hereto has notified the other party.
7.12.
(a) This Warrant Agreement shall be governed by and construed in accordance with the laws of the State of New York. All actions and proceedings
relating to or arising from, directly or indirectly, this Warrant Agreement may be litigated in courts located within the Borough of Manhattan
in the City and State of New York. The Company hereby submits to the personal jurisdiction of such courts and consents that any service
of process may be made by certified or registered mail, return receipt requested, directed to the Company at its address last specified
for notices hereunder. Each of the parties hereto hereby waives the right to a trial by jury in any action or proceeding arising out of
or relating to this Warrant Agreement. (b) This Warrant Agreement shall inure to the benefit of and be binding upon the successors and
assigns of the parties hereto. This Warrant Agreement may not be assigned, or otherwise transferred, in whole or in part, by either party
without the prior written consent of the other party, which the other party will not unreasonably withhold, condition or delay; except
that (i) consent is not required for an assignment or delegation of duties by Warrant Agent to any affiliate of Warrant Agent and (ii)
any reorganization, merger, consolidation, sale of assets or other form of business combination by Warrant Agent or the Company shall
not be deemed to constitute an assignment of this Warrant Agreement. (c) No provision of this Warrant Agreement may be amended, modified
or waived, except in a written document signed by both parties. The Company and the Warrant Agent may amend or supplement this Warrant
Agreement without the consent of any Holder for the purpose of curing any ambiguity, or curing, correcting or supplementing any defective
provision contained herein or adding or changing any other provisions with respect to matters or questions arising under this Agreement
as the parties may deem necessary or desirable and that the parties determine, in good faith, shall not adversely affect the interest
of the Holders. All other amendments and supplements shall require the vote or written consent of Holders of at least 50.1%
of the then outstanding Warrants, provided that adjustments may be made to the Warrant terms and rights in accordance with Section
4 without the consent of the Holders.
7.13.
Payment of Taxes. The Company will from time to time promptly pay all taxes and charges that may be imposed upon the Company or
the Warrant Agent in respect of the issuance or delivery of Warrant Shares upon the exercise of Warrants, but the Company may require
the Holders to pay any transfer taxes in respect of the Warrants or such shares. The Warrant Agent may refrain from registering any transfer
of Warrants or any delivery of any Warrant Shares unless or until the persons requesting the registration or issuance shall have paid
to the Warrant Agent for the account of the Company the amount of such tax or charge, if any, or shall have established to the reasonable
satisfaction of the Company and the Warrant Agent that such tax or charge, if any, has been paid.
7.14.
Resignation of Warrant Agent.
7.14.1. Appointment of Successor Warrant
Agent. The Warrant Agent, or any successor to it hereafter appointed, may resign its duties and be discharged from all further duties
and liabilities hereunder after giving thirty (30) days’ notice in writing to the Company, or such shorter period of time agreed
to by the Company. The Company may terminate the services of the Warrant Agent, or any successor Warrant Agent, after giving thirty (30)
days’ notice in writing to the Warrant Agent or successor Warrant Agent, or such shorter period of time as agreed. If the office
of the Warrant Agent becomes vacant by resignation, termination or incapacity to act or otherwise, the Company shall appoint in writing
a successor Warrant Agent in place of the Warrant Agent. If the Company shall fail to make such appointment within a period of 30 days
after it has been notified in writing of such resignation or incapacity by the Warrant Agent, then the Warrant Agent or any Holder may
apply to any court of competent jurisdiction for the appointment of a successor Warrant Agent at the Company’s cost. Pending appointment
of a successor to such Warrant Agent, either by the Company or by such a court, the duties of the Warrant Agent shall be carried out by
the Company. Any successor Warrant Agent (but not including the initial Warrant Agent), whether appointed by the Company or by such court,
shall be a person organized and existing under the laws of any state of the United States of America, in good standing, and authorized
under such laws to exercise corporate trust powers and subject to supervision or examination by federal or state authority. After appointment,
any successor Warrant Agent shall be vested with all the authority, powers, rights, immunities, duties, and obligations of its predecessor
Warrant Agent with like effect as if originally named as Warrant Agent hereunder, without any further act or deed, and except for executing
and delivering documents as provided in the sentence that follows, the predecessor Warrant Agent shall have no further duties, obligations,
responsibilities or liabilities hereunder, but shall be entitled to all rights that survive the termination of this Warrant Agreement
and the resignation or removal of the Warrant Agent, including but not limited to its right to indemnity hereunder. If for any reason
it becomes necessary or appropriate or at the request of the Company, the predecessor Warrant Agent shall execute and deliver, at the
expense of the Company, an instrument transferring to such successor Warrant Agent all the authority, powers, and rights of such predecessor
Warrant Agent hereunder; and upon request of any successor Warrant Agent the Company shall make, execute, acknowledge, and deliver any
and all instruments in writing for more fully and effectually vesting in and confirming to such successor Warrant Agent all such authority,
powers, rights, immunities, duties, and obligations.
7.14.2. Notice of Successor Warrant Agent.
In the event a successor Warrant Agent shall be appointed, the Company shall give notice thereof to the predecessor Warrant Agent and
the transfer agent for the Common Stock not later than the effective date of any such appointment.
7.14.3. Merger or Consolidation of Warrant
Agent. Any person into which the Warrant Agent may be merged or converted or with which it may be consolidated or any person resulting
from any merger, conversion or consolidation to which the Warrant Agent shall be a party or any person succeeding to the shareowner services
business of the Warrant Agent or any successor Warrant Agent shall be the successor Warrant Agent under this Warrant Agreement, without
any further act or deed. For purposes of this Warrant Agreement, “person” shall mean any individual, firm, corporation, partnership,
limited liability company, joint venture, association, trust or other entity, and shall include any successor (by merger or otherwise)
thereof or thereto.
| 8. | Miscellaneous Provisions. |
8.1.
Persons Having Rights under this Warrant Agreement. Nothing in this Warrant Agreement expressed and nothing that may be implied
from any of the provisions hereof is intended, or shall be construed, to confer upon, or give to, any person or corporation other than
the parties hereto and the Holders any right, remedy, or claim under or by reason of this Warrant Agreement or of any covenant, condition,
stipulation, promise, or agreement hereof.
8.2.
Examination of the Warrant Agreement. A copy of this Warrant Agreement shall be available at all reasonable times at the office
of the Warrant Agent designated for such purpose for inspection by any Holder. Prior to such inspection, the Warrant Agent may require
any such holder to provide reasonable evidence of its interest in the Warrants.
8.3.
Counterparts. This Warrant Agreement may be executed in any number of original, facsimile or electronic counterparts and each of
such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and
the same instrument.
8.4.
Effect of Headings. The Section headings herein are for convenience only and are not part of this Warrant Agreement and shall not
affect the interpretation thereof.
9.
Certain Definitions. As used herein, the following terms shall have the following meanings:
(a) “Adjustment Right” means any right granted with
respect to any securities issued in connection with, or with respect to, any issuance, sale or delivery (or deemed issuance, sale or delivery
in accordance with Section 4) of Common Stock (other than rights of the type described in Section 4.2 and 4.3 hereof) that could result
in a decrease in the net consideration received by the Company in connection with, or with respect to, such securities (including, without
limitation, any cash settlement rights, cash adjustment or other similar rights) but excluding anti-dilution and other similar rights
(including pursuant to Section 4.4 of this Agreement).
(b) “Approved Stock Plan” means any employee benefit
plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which Common
Stock and options to purchase Common Stock may be issued to any employee, consultant, officer or director or other service provider for
services provided to the Company in their capacity as such.
(c) “Convertible Securities” means any notes, rights,
warrants or other securities (other than Options) that are at any time and under any circumstances, directly or indirectly, convertible
into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, shares of Common Stock.
(d) “Excluded Securities” means (i) Common Stock
or options or other rights to purchase Common Stock or other awards issued to directors, officers, employees, consultants or other service
providers of the Company in their capacity as such pursuant to an Approved Stock Plan, provided that (A) all such issuances (taking into
account the Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate,
exceed more than 30% of the Common Stock issued and outstanding immediately prior to the date hereof; provided however, that such issuances
to consultants or other service providers do not, in each instance in the aggregate, exceed more than 5% of the Common Stock issued and
outstanding immediately prior to the date hereof, and (B) the exercise price of any such options is not lowered, none of such options
are amended to increase the number of shares issuable thereunder in each case other than pursuant to the terms hereof (including any anti-dilution
provisions contained therein) and none of the terms or conditions of any such options are otherwise materially changed in any manner that
adversely affects any of the holders of Warrants; (ii) Common Stock issued upon the conversion or exercise of Convertible Securities (other
than options or other rights to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above)
issued prior to the date hereof, provided that the conversion price of any such Convertible Securities (other than options or other rights
to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered through the amendment
or waiver of such Convertible Security, none of such Convertible Securities (other than options or other rights to purchase Common Stock
issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable
thereunder and none of the terms or conditions of any such Convertible Securities (other than options or other rights to purchase Common
Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that
adversely affects any of the holders of Warrants; (iii) Common Stock issuable upon exercise of the Warrants; and (iv) securities issuable
in connection with strategic license agreements, other partnering arrangements or acquisitions or mergers where the purchaser or acquirer
of the securities in such issuance solely consists of (A) either (x) the actual participants in such strategic license, strategic alliance,
strategic partnership or other partnering arrangements, (y) the actual owners of such assets or securities acquired in such acquisition
or merger or (z) the stockholders, partners or members of the foregoing persons or entities and (B) number or amount of securities issued
to such person or entity by the Company shall not be disproportionate (as determined in good faith by the Board of Directors of the Company)
to either (x) the fair market value of such person’s or entity’s actual contribution to such strategic alliance or strategic
partnership or (y) the proportional ownership of such assets or securities to be acquired by the Company, as applicable; provided, that,
notwithstanding the foregoing, such purchaser or acquirer of the securities in such issuance shall not include any person regularly engaged
in the business of buying or selling securities.
(e) [Intentionally omitted.]
(f) “Options” means any rights, warrants or options
to subscribe for or purchase Common Stock or Convertible Securities.
(g) “Trading Day” means any day on which the Common
Stock is traded on the Trading Market, or, if the Trading Market is not the principal trading market for the Common Stock, then on the
principal securities exchange or securities market in the United States on which the the Common Stock is then traded, provided that “Trading
Day” shall not include any day on which the Common Stock is are scheduled to trade on such exchange or market for less than 4.5
hours or any day that the Common Stock is suspended from trading during the final hour of trading on such exchange or market (or if such
exchange or market does not designate in advance the closing time of trading on such exchange or market, then during the hour ending at
4:00 P.M., Eastern Standard Time).
(h) “Trading Market” means NYSE MKT, the Nasdaq
Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New York Stock Exchange.
(i) “VWAP” means, for any date, the price determined
by the first of the following clauses that applies: (i) if the Common Stock is then listed or quoted on a Trading Market, the daily volume
weighted average price of the Common Stock for such date (or the nearest preceding date) on the Trading Market on which the Common Stock
is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (Eastern Standard Time) to 4:02 p.m. (Eastern
Standard Time)); (ii) the volume weighted average price of the Common Stock for such date (or the nearest preceding date) on the OTC Bulletin
Board; (iii) if the Common Stock are not then listed or quoted for trading on the OTC Bulletin Board and if prices for the Common Stock
are then reported in the OTCQB maintained by OTC Markets Group, Inc. (or a similar organization or agency succeeding to its functions
of reporting prices), the most recent bid price per share of Common Stock so reported; or (iv) in all other cases, the fair market value
of the Common Stock as determined by an independent appraiser selected in good faith by the Company, the fees and expenses of which shall
be paid by the Company.
[Signature Page to Follow]
IN WITNESS WHEREOF, this Warrant Agent Agreement
has been duly executed by the parties hereto as of the day and year first above written.
|
TONIX PHARMACEUTICALS HOLDING CORP. |
|
|
|
|
|
By: |
/s/ Bradley Saenger |
|
|
Name: |
Bradley
Saenger |
|
|
Title: |
Chief
Financial Officer |
|
|
VSTOCK TRANSFER,
LLC |
|
|
|
|
|
By: |
/s/ Young Kim |
|
|
Name: |
Young D. Kim |
|
|
Title: |
Compliance
Officer |
|
EXHIBIT A
[TO
BE INCLUDED IN THE GLOBAL CERTIFICATE]
[Unless this certificate
is presented by an authorized representative of The Depository Trust Company, a New York corporation (“DTC”), to issuer or
its agent for registration of transfer, exchange, or payment, and any certificate issued is registered in the name of Cede &
Co. or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.]
[COMPANY]
WARRANT CERTIFICATE
NOT EXERCISABLE AFTER ____________________
This certifies that the person whose name and address
appears below, or registered assigns, is the registered owner of the number of Warrants set forth below. Each Warrant entitles its registered
holder to purchase from ___________________________________ , a company incorporated under the laws of the State of ___________ (the “Company”),
at any time prior to 5:00 P.M. (Eastern Standard Time) on ________________, one share of common stock, par value $0.001 per share, of
the Company (each, a “Warrant Share” and collectively, the “Warrant Shares”), at an exercise price
of $____ per share, subject to possible adjustments as provided in the Warrant Agreement (as defined below).
This Warrant Certificate, with or without other
Warrant Certificates, upon surrender at the designated office of the Warrant Agent, may be exchanged for another Warrant Certificate or
Warrant Certificates evidencing the same number of Warrants as the Warrant Certificate or Warrant Certificates surrendered. A transfer
of the Warrants evidenced hereby may be registered upon surrender of this Warrant Certificate at the designated office of the Warrant
Agent by the registered holder in person or by a duly authorized attorney, properly endorsed or accompanied by proper instruments of transfer,
a signature guarantee, and such other and further documentation as the Warrant Agent may reasonably request and duly stamped as may be
required by the laws of the State of New York and of the United States of America.
The terms and conditions of the Warrants and the
rights and obligations of the holder of this Warrant Certificate are set forth in the Warrant Agent Agreement dated as of ____________
(the “Warrant Agreement”) between the Company and VStock Transfer, LLC (the “Warrant Agent”). A
copy of the Warrant Agreement is available for inspection during business hours at the office of the Warrant Agent.
This Warrant Certificate shall not be valid or
obligatory for any purpose until it shall have been countersigned by an authorized signatory of the Warrant Agent.
WITNESS the facsimile signature of a proper officer
of the Company.
|
|
[COMPANY] |
|
|
|
|
|
By: |
|
|
|
Name: |
|
|
|
Title: |
|
|
Dated: _______________
Countersigned:
VSTOCK TRANSFER, LLC
PLEASE DETACH HERE
Certificate No.:_________ Number of Warrants:__________
WARRANT CUSIP NO.: ___________
[COMPANY]
EXHIBIT B
[Form of Election to Purchase]
(To Be Executed Upon Exercise Of Warrants not evidenced
by a Global Certificate)
The undersigned hereby irrevocably elects to exercise
the right, represented by Warrants evidenced by this Warrant Certificate, to receive ____________ Warrant Shares and herewith tenders
payment for such Warrant Shares to the order of _______________________, in the amount of $ _________ in accordance with the terms hereof.
OR
[In cases where cashless exercise is permitted
under the Warrant Agreement] – The undersigned hereby irrevocably elects to exercise the right, represented by Warrants evidenced
by this Warrant Certificate, to receive _____________ Warrant Shares (before giving effect to the cashless exercise provisions) and herewith
agrees to make payment therefor pursuant to the cashless exercise provisions of the Warrant Agreement, all on the terms and the conditions
specified in the Warrant Agent Agreement.
The undersigned requests that a certificate for
such Warrant Shares be registered in the name of ___________________________, whose address is _____________________________ and that
such certificate be delivered to _______________________________, whose address is _____________________________________. If the number
of Warrants being exercised hereby is less than all the Warrants evidenced by this Warrant Certificate, the undersigned requests that
a new Warrant Certificate representing the remaining unexercised Warrants be registered in the name of ___________________________, whose
address is _____________________________ and that such Warrant Certificate be delivered to ______________________________________ whose
address is _________________________________.
Date:
Signatures must be guaranteed by an “eligible guarantor institution”
meeting the requirements of the Warrant Agent, which requirements include membership or participation in the Security Transfer Agent Medallion
Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Warrant Agent in addition
to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended
EXHIBIT C
AUTHORIZED REPRESENTATIVES
Name |
|
Title |
|
Signature |
Seth Lederman |
|
Chief Executive Officer |
|
|
Bradley Saenger |
|
Chief Financial Officer |
|
|
TONIX PHARMACEUTICALS HOLDING CORP. 8-K
Exhibit 5.01
![](https://www.sec.gov/Archives/edgar/data/1430306/000199937124008473/ex501001.jpg) |
Brownstein Hyatt Farber Schreck, LLP
702.382.2101 main
100 North City Parkway, Suite 1600
Las Vegas, Nevada 89106
|
July 10, 2024
Tonix Pharmaceuticals Holding Corp.
26 Main Street, Suite 101
Chatham, New Jersey 07928
To the addressee set forth above:
We have acted as local Nevada counsel to Tonix
Pharmaceuticals Holding Corp., a Nevada corporation (the “Company”), in connection with the issuance and sale by the
Company of (i) 3,393,600 shares (the “Common Shares”) of the Company’s common stock, par value $0.001 per share
(the “Common Stock”) and (ii) pre-funded warrants (the “Warrants”) to purchase up to 3,703,140 shares
of Common Stock (the “Warrant Shares”), under that certain Placement Agency Agreement, dated July 9, 2024 (the “Placement
Agency Agreement”), by and between the Company and Dawson James Securities, Inc., as sole placement agent, including pursuant
to that certain Securities Purchase Agreement, dated as of July 9, 2024 (the “Purchase Agreement”), by and between
the Company and each of the Purchasers (as defined therein) party thereto , and pursuant to the Registration Statement on Form S-3 (File
No. 333-266982) (as amended through the date hereof, the “Registration Statement”), including the base prospectus dated
August 26, 2022, contained therein (the “Base Prospectus”), as supplemented by the prospectus supplement dated July
9, 2024 (the Base Prospectus as so supplemented, the “Prospectus”), each as filed with the Securities and Exchange
Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”). The Common
Shares and the Warrant Shares are hereinafter collectively referred to as the “Shares” and the Shares and the Warrants
are hereinafter collectively referred to as the “Securities”. This opinion letter is being furnished at your request
in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Act.
In our capacity as such counsel, we are familiar
with the proceedings taken and proposed to be taken by the Company in connection with the authorization, issuance and sale of the Securities
as contemplated by the Transaction Documents and as described in the Registration Statement and the Prospectus. For purposes of this opinion
letter, and except to the extent set forth in the opinions below, we have assumed that all such proceedings have been or will be timely
completed in the manner presently proposed in the Transaction Documents and the Registration Statement and the Prospectus.
For purposes of issuing this opinion letter,
we have made such legal and factual examinations and inquiries, including an examination of originals or copies certified or otherwise
identified to our satisfaction as being true copies of (i) the Registration Statement and the Prospectus, (ii) the Placement Agency Agreement,
the Purchase Agreement and the Warrants (collectively, the “Transaction Documents”); (iii) the articles of incorporation
and bylaws of the Company; and (iv) such agreements, instruments, resolutions of the board of directors of the Company and committees
thereof and other corporate records, and such other documents as we have deemed necessary or appropriate for the purpose of issuing this
opinion letter, and we have obtained from officers and other representatives and agents of the Company and from public officials, and
have relied upon, such certificates, representations and assurances, and public filings, as we have deemed necessary or appropriate.
www.bhfs.com
Tonix Pharmaceuticals Holding Corp.
July 10, 2024
Page 2
Without limiting the generality of the foregoing, in
our examination, we have, with your permission, assumed without independent verification: (i) the statements of fact and all representations
and warranties set forth in the documents we have reviewed are true and correct as to factual matters, in each case as of the date or
dates of such documents and as of the date hereof; (ii) each natural person executing any of the documents we have reviewed has sufficient
legal capacity to do so; (iii) all documents submitted to us as originals are authentic, the signatures on all documents that we have
reviewed are genuine and all documents submitted to us as certified, conformed, photostatic, facsimile or electronic copies conform to
the original document; (iv) all corporate records made available to us by the Company, and all public records we have reviewed, are accurate
and complete; (v) the obligations of each party set forth in the Transaction Documents are its valid and binding obligations, enforceable
in accordance with their respective terms; and (vi) after any issuance of Warrant Shares, the total number of issued and outstanding shares
of Common Stock, together with the total number of shares of Common Stock then reserved for issuance or obligated to be issued by the
Company pursuant to any agreement or arrangement or otherwise, will not exceed the total number of shares of Common Stock then authorized
under the Company’s articles of incorporation.
We are qualified to practice law in the State of Nevada.
The opinions set forth herein are expressly limited to and based exclusively on the general corporate laws of the State of Nevada, and
we do not purport to be experts on, or to express any opinion with respect to the applicability or effect of, the laws of any other jurisdiction.
We express no opinion concerning, and we assume no responsibility as to laws or judicial decisions related to, or any orders, consents
or other authorizations or approvals as may be required by, any federal laws, rules or regulations, including, without limitation, any
federal securities laws, rules or regulations, or any state securities or “blue sky” laws, rules or regulations.
Based upon the foregoing and in reliance thereon, and
having regard to legal considerations and other information that we deem relevant, we are of the opinion that:
1.
The Warrants have been duly authorized by the Company.
2.
The Common Shares have been duly authorized by the Company and if, when and to the extent any Common Shares are issued and sold
in accordance with all applicable terms and conditions set forth in, and in the manner contemplated by, the relevant Transaction Documents,
and as described in the Registration Statement and Prospectus (including payment in full of all consideration required for such Common
Shares), such Common Shares will be validly issued, fully paid and nonassessable.
3.
The Warrant Shares have been duly authorized by the Company and if, when and to the extent any Warrant Shares are issued and sold
in accordance with all applicable terms and conditions set forth in, and in the manner contemplated by, the relevant Transaction Documents
(including due and proper exercise of the relevant Warrant(s) in accordance with such Warrant(s) and payment in full of all consideration
required thereunder for such Warrant Shares), and as described in the Registration Statement and Prospectus, such Warrant Shares will
be validly issued, fully paid and nonassessable.
The opinions expressed herein are based upon the applicable
laws of the State of Nevada and the facts in existence on the date hereof. In delivering this opinion letter to you, we disclaim any obligation
to update or supplement the opinions set forth herein or to apprise you of any changes in any laws or facts after the later of the date
hereof and the filing date of the Prospectus Supplement. No opinion is offered or implied as to any matter, and no inference may be drawn,
beyond the strict scope of the specific issues expressly addressed by the opinion set forth herein.
We hereby consent to the filing of this opinion letter
as an exhibit to the Registration Statement and the Prospectus, and to the reference to our firm therein under the heading “Legal
Matters”. In giving such consent, we do not admit that we are in the category of persons whose consent is required under Section
7 of the Act or the rules and regulations of the Commission promulgated thereunder. Subject to all of the qualifications, limitations,
restrictions, exceptions and assumptions set forth herein, Lowenstein Sandler LLP may rely on numbered opinion paragraph 1 of this opinion
letter as if it were an addressee hereof on this date for the sole purpose of issuing its opinion letter to the Company relating to the
validity of the Warrants, as filed with the Commission as an exhibit to the Registration Statement.
Very truly yours,
/s/ Brownstein Hyatt Farber Schreck, LLP
TONIX PHARMACEUTICALS HOLDING CORP. 8-K
Exhibit 5.02
| July
10, 2024 |
Tonix
Pharmaceuticals Holding Corp.
26
Main Street – Suite 101
Chatham,
NJ 07928
Ladies
and Gentlemen:
We have acted as counsel to Tonix Pharmaceuticals Holding Corp., a Nevada
corporation (the “Company”) in connection with the sale and issuance of 3,393,600 shares of the Company’s common
stock, par value $0.001 per share (the “Common Stock” and such shares, the “Shares”) and Pre-Funded
Warrants (the “Warrants”) to purchase up to an aggregate of 3,703,140 shares of Common Stock (the “Warrant
Shares”) being issued to certain purchasers, pursuant to the Registration Statement on Form S-3 (File No. 333-266982) (the “Registration
Statement”) filed by the Company with the Securities and Exchange Commission (the “Commission”) under the
Securities Act of 1933, as amended (the “Securities Act”), and the rules and regulations promulgated thereunder, together
with a base prospectus dated May 5, 2021 included in the Form S-3 (the “Base Prospectus”) and a final prospectus supplement
dated July 9, 2024 filed with the Commission pursuant to Rule 424(b)(5) under the Securities Act (together with the Base Prospectus, the
“Prospectus”). The Shares and Warrants are to be sold pursuant to a Placement Agency Agreement, dated July 9, 2024,
between the Company and Dawson James Securities, Inc., and a Securities Purchase Agreement dated July 9, 2024, among the Company and each
purchaser signatory thereto. We have been requested by the Company to render this opinion in connection with the filing of the Form 8-K
with respect to the sale and issuance by the Company of the Warrants (the “Form 8-K”).
As
counsel to the Company in connection with the proposed potential issuance and sale of the above-referenced Shares, Warrants and Warrant
Shares, we have reviewed the Registration Statement, Prospectus and the respective exhibits thereto. We have also reviewed such corporate
documents and records of the Company, such certificates of public officials and officers of the Company and such other matters as we
have deemed necessary or appropriate for purposes of this opinion. In our examination, we have assumed: (i) the authenticity of original
documents and the genuineness of all signatures; (ii) the conformity to the originals of all documents submitted to us as copies; (iii)
the truth, accuracy and completeness of the information, representations and warranties contained in the instruments, documents, certificates
and records we have reviewed; (iv) that, as set forth in a separate opinion delivered to the Company on the date hereof by Brownstein
Hyatt Farber Schreck, LLP, special Nevada counsel to the Company, the Warrants have been duly authorized; and (v) the legal capacity
for all purposes relevant hereto of all natural persons and, with respect to all parties to agreements or instruments relevant hereto
other than the Company, that such parties had the requisite power and authority (corporate or otherwise) to execute, deliver and perform
such agreements or instruments, that such agreements or instruments have been duly authorized by all requisite action (corporate or otherwise),
executed and delivered by such parties and that such agreements or instruments are the valid, binding and enforceable obligations of
such parties. As to any facts material to the opinions expressed herein that were not independently established or verified, we have
relied upon oral or written statements and representations of officers and other representatives of the Company.
Based
on the foregoing, and subject to the assumptions, limitations and qualifications set forth herein, we are of the opinion that when the
Warrants are duly executed and delivered by the Company and paid for by certain purchasers, such Warrants will constitute the legal,
valid and binding obligation of the Company, enforceable against the Company in accordance with their terms, subject to bankruptcy, insolvency
or other similar laws affecting creditors’ rights and to general equitable principles.
The
opinion set forth above is subject to the following exceptions, limitations and qualifications: (i) the effect of bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter in effect relating to or affecting the rights
and remedies of creditors; (ii) the effect of general principles of equity, including without limitation, concepts of materiality, reasonableness,
good faith and fair dealing and the possible unavailability of specific performance or injunctive relief, regardless of whether enforcement
is considered in a proceeding in equity or at law, and the discretion of the court before which any proceeding therefor may be brought;
and (iii) the unenforceability under certain circumstances under law or court decisions of provisions providing for the indemnification
of, or contribution to, a party with respect to liability where such indemnification or contribution is contrary to public policy. We
express no opinion concerning the enforceability of any waiver of rights or defenses with respect to stay, extension or usury laws.
Our
opinion is limited to the laws of New York. We express no opinion as to the effect of the law of any other jurisdiction. Our opinion
is rendered as of the date hereof, and we assume no obligation to advise you of changes in law or fact (or the effect thereof on the
opinions expressed herein) that hereafter may come to our attention. We advise you that matters of Nevada law are covered in the opinion
of Brownstein Hyatt Farber Schreck, LLP, special Nevada counsel for the Company, in Exhibit 5.01 to the Form 8-K.
We
hereby consent to the inclusion of this opinion as Exhibit 5.02 to the Form 8-K and to the references to our firm in the Prospectus under
the caption “Legal Matters.” In giving our consent, we do not admit that we are in the category of persons whose consent
is required under Section 7 of the Securities Act or the rules and regulations thereunder.
Very
truly yours,
/s/
Lowenstein Sandler LLP
TONIX PHARMACEUTICALS HOLDING CORP. 8-K
Exhibit 10.1
SECURITIES
PURCHASE AGREEMENT
This
Securities Purchase Agreement (this “Agreement”) is dated as of July 9, 2024, between Tonix Pharmaceuticals
Holding Corp., a Nevada corporation (the “Company”), and each purchaser identified on the signature pages hereto
(each, including its successors and assigns, a “Purchaser” and collectively, the “Purchasers”).
WHEREAS,
subject to the terms and conditions set forth in this Agreement and pursuant to an effective registration statement under the
Securities Act (as defined below) as to the Shares (as defined below), and the Pre-Funded Warrants (as defined below), the Company
desires to issue and sell to each Purchaser, and each Purchaser, severally and not jointly, desires to purchase from the Company,
securities of the Company as more fully described in this Agreement.
NOW,
THEREFORE, in consideration of the mutual covenants contained in this Agreement, and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the Company and each Purchaser agree as follows:
ARTICLE
I
DEFINITIONS
1.1 Definitions. In addition to the terms defined elsewhere in this Agreement, for all purposes of this Agreement, the following
terms have the meanings set forth in this Section 1.1:
“Acquiring
Person” shall have the meaning ascribed to such term in Section 4.5.
“Action”
shall have the meaning ascribed to such term in Section 3.1(j).
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common
control with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
“AFSLLP”
means ArentFox Schiff LLP with offices located at 1717 K Street, Washington, DC 20006.
“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 generally are open for use by customers on such day.
“Closing”
means the closing of the purchase and sale of the Shares and the Warrants pursuant to Section 2.1.
“Closing
Date” means the Trading Day on which all of the Transaction Documents have been executed and delivered by the applicable
parties thereto, and all conditions precedent to (i) the Purchasers’ obligations to pay the Subscription Amount and (ii)
the Company’s obligations to deliver the Shares and Warrants, in each case, have been satisfied or waived, but in no event
later than the first (1st) 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 $0.001 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.
“Company
Counsel” means Lowenstein Sandler LLP, with offices located at 1251 Avenue of the Americas, New York, New York 10020.
“Company
Nevada Counsel” means Brownstein Hyatt Farber Schreck, LLP, with offices located at 100 N. City Parkway, Suite 1600,
Las Vegas, NV 89106.
“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, 9:30 a.m. (New York City time) on the Trading Day immediately following
the date hereof, unless otherwise instructed as to an earlier time by the Placement Agent, and (ii) if this Agreement is signed
between midnight (New York City time) and 9:29 a.m. (New York City time) on any Trading Day, no later than 9:30 a.m. (New York
City time) on the date hereof, unless otherwise instructed as to an earlier time by the Placement Agent.
“Effective
Date” means the date that the initial Registration Statement has been declared effective by the Commission.
“Evaluation
Date” shall have the meaning ascribed to such term in Section 3.1(s).
“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 upon the exercise of options or warrants that are outstanding
as of the effective date of the Registration Statement, (b) shares of Common Stock or Common Stock Equivalents to employees, officers
or directors of the Company pursuant to any stock or option plan duly adopted for such purpose, by a majority of the non-employee
members of the Board of Directors or a majority of the members of a committee of non-employee directors established for such purpose
for services rendered to the Company, (c) 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, (d) securities issued pursuant to 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) if issued during the prohibition period in Section 4.12(a) herein and carry no registration
rights that require or permit the filing of any registration statement in connection therewith during the prohibition period in
Section 4.12(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, and (e) the filing of any registration statement on Form S-8 with respect to the registration
of securities to be issued pursuant to any stock or option plan described in clause (b).
“FCPA”
means the Foreign Corrupt Practices Act of 1977, as amended.
“GAAP”
shall have the meaning ascribed to such term in Section 3.1(h).
“Indebtedness”
shall have the meaning ascribed to such term in Section 3.1(bb).
“Intellectual
Property Rights” shall have the meaning ascribed to such term in Section 3.1(p).
“Legend
Removal Date” shall have the meaning ascribed to such term in Section 4.1(c).
“Liens”
means a lien, charge pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.
“Lock-Up
Agreement” means each Lock-Up Agreement, dated as of the date hereof, by and between the Placement Agent and each of
the directors and officers, in the form of Exhibit A attached hereto.
“Material
Adverse Change” shall have the meaning ascribed to such term in Section 3.1(b).
“Material
Permits” shall have the meaning ascribed to such term in Section 3.1(n).
“Per
Share Purchase Price” equals $0.57, 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.
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Placement
Agent” means Dawson James Securities, Inc., 101 North Federal Highway, Suite 600, Boca Raton, FL 33432.
“Pre-Funded
Warrants” means, collectively, the Pre-Funded Common Stock purchase warrants delivered to the Purchasers at the Closing
in accordance with Section 2.2(a) hereof, which Pre-Funded Warrants shall be exercisable immediately and shall expire when exercised
in full, in the form of Exhibit D attached hereto.
“Pre-Funded
Warrant Shares” means the shares of Common Stock issuable upon exercise of the Pre-Funded Warrants.
“Pro
Rata Portion” shall have the meaning ascribed to such term in Section 4.11(e).
“Proceeding”
means an action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation or partial
proceeding, such as a deposition), whether commenced or threatened.
“Prospectus”
means the final prospectus filed for the Registration Statement.
“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 each Purchaser at the Closing.
“Purchaser
Party” shall have the meaning ascribed to such term in Section 4.8.
“Registration
Statement” means the effective registration statement with Commission file No. 333-266982 which registers the sale of
the Shares and Pre-Funded Warrants to the Purchasers at the Closing.
“Rule
144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted
from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose
and effect as such Rule.
“Rule
424” means Rule 424 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted
from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose
and effect as such Rule.
“SEC
Reports” shall have the meaning ascribed to such term in Section 3.1(h).
“Securities”
means the Shares, the Warrants and the Warrant Shares.
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Shares”
means the shares of Common Stock issued or issuable to each Purchaser pursuant to this Agreement.
“Short
Sales” means all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall
not be deemed to include locating and/or borrowing shares of Common Stock).
“Subscription
Amount” means, as to each Purchaser, the aggregate amount to be paid for the Shares purchased hereunder as specified
below such Purchaser’s name on the signature page of this Agreement and next to the heading “Subscription Amount,”
in United States dollars and in immediately available funds.
“Subsidiary”
means any subsidiary of the Company as set forth on Schedule 3.1(a) and shall, where applicable, also include any direct
or indirect subsidiary of the Company formed or acquired after the date hereof.
“Trading
Day” means a day on which the 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,
the New York Stock Exchange, OTCQB or OTCQX (or any successors to any of the foregoing).
“Transaction
Documents” means this Agreement, the Warrants, the Lock-Up 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 vStock Transfer, LLC, with a mailing address of 18 Lafayette Place, Woodmere, NY 11598 and any successor
transfer agent of the Company.
“Warrants”
means, collectively, the Pre-Funded Warrants.
“Warrant
Shares” means the Pre-Funded Warrant Shares.
ARTICLE
II
PURCHASE AND SALE
2.1 Closing. On the Closing Date, upon the terms and subject to the conditions set forth herein, substantially concurrent
with the execution and delivery of this Agreement by the parties hereto, the Company agrees to sell, and the Purchasers, severally
and not jointly, agree to purchase, up to an aggregate of [***] Shares for an aggregate purchase price of $[***], provided,
however, that, to the extent that a Purchaser determines, in its sole discretion, that such Purchaser (together
with such Purchaser’s Affiliates, and any Person acting as a group together with such purchaser or any of such Purchaser’s
Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation, or as such Purchaser may otherwise choose,
in lieu of purchasing Shares such Purchaser may elect to purchase Pre-Funded Warrants in such manner to result in the same aggregate
purchase price being paid by such Purchaser to the Company. The “Beneficial Ownership Limitation” shall be 4.99% (or,
at the election of the Purchaser at the Closing, 9.99%) of the number of shares of the Common Stock outstanding immediately after
giving effect to the issuance of the Securities on the Closing Date. Each Purchaser’s Subscription Amount as
set forth on the signature page hereto executed by such Purchaser shall be made available for “Delivery Versus Payment”
settlement with the Company or its designee. The Company shall deliver to each Purchaser its respective Shares as determined pursuant
to Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 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 the offices of AFSLLC or such other location as the parties shall mutually agree. Notwithstanding anything herein to the contrary,
if at any time on or after the time of execution of this Agreement by the Company and an applicable Purchaser, through and including
the time immediately prior to the Closing (the “Pre-Settlement Period”), such Purchaser sells to any Person
all, or any portion, of the Shares to be issued hereunder to such Purchaser at the Closing or upon exercise of any Warrant to
be issued at the Closing (collectively, the “Pre-Settlement Shares”), such Purchaser shall, automatically hereunder
(without any additional required actions by such Purchaser or the Company), be deemed to be unconditionally bound to purchase,
such Pre-Settlement Shares to such Purchaser at the Closing; provided, that the Company shall not be required to deliver
any Pre-Settlement Shares to such Purchaser prior to the Company’s receipt of the 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 such Purchaser as to whether or not during the Pre-Settlement Period such Purchaser
shall sell any shares of Common Stock to any Person and that any such decision to sell any shares of Common Stock by such Purchaser
shall solely be made at the time such Purchaser elects to effect any such sale, if any. Unless otherwise directed by the Placement
Agent, 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 Purchasers’ names and addresses and released by the Transfer
Agent directly to the account(s) of each Purchaser; upon receipt of such Shares, and payment therefor shall be made by each Purchaser
by wire transfer to the Company). Notwithstanding the foregoing, with respect to any Notice(s) of Exercise (as defined in the
Pre-Funded Warrants) delivered on or prior to 12:00 p.m. (New York City time) on the Trading Day prior to the Closing Date, which
may be delivered at any time after the time of execution of the this Agreement, the Company agrees to deliver the Pre- Funded
Warrant Shares subject to such notice(s) by 4:00 p.m. (New York City time) on the Closing Date and the Closing Date shall be the
Warrant Share Delivery Date (as defined in the Pre-Funded Warrants) for purpose hereunder. Notwithstanding anything to the contrary
herein and a Purchaser’s Subscription Amount set forth on the signature pages attached hereto, the number of Shares purchased
by a Purchaser (and its Affiliates) hereunder shall not, when aggregated with all other shares of Common Stock owned by such Purchaser
(and its Affiliates) at such time, result in such Purchaser beneficially owning (as determined in accordance with Section 13(d)
of the Exchange Act) in excess of 9.9% of the then issued and outstanding Common Stock outstanding at the Closing (the “Beneficial
Ownership Maximum”), and such Purchaser’s Subscription Amount, to the extent it would otherwise exceed the Beneficial
Ownership Maximum immediately prior to the Closing, shall be conditioned upon the issuance of Shares at the Closing to the other
Purchasers signatory hereto. To the extent that a Purchaser’s beneficial ownership of the Shares would otherwise be deemed
to exceed the Beneficial Ownership Maximum, such 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, the Company shall deliver or cause to be delivered to each Purchaser the following:
(i) this Agreement duly executed by the Company;
(ii) the legal opinions of each of Company Counsel and Company Nevada Counsel, respectively, each such legal opinion directed
to the Placement Agent in a form reasonably acceptable to the Placement Agent;
(iii) certificates executed by the Company’s Chief Financial Officer, Chief Executive Officer and Secretary, directed to the Placement
Agent in form and substance reasonably acceptable to the Placement Agent;
(iv) a copy of the irrevocable instructions to the Transfer Agent instructing the Transfer Agent to deliver on an expedited basis via
The Depository Trust Company Deposit or Withdrawal at Custodian system Shares equal to such Purchaser’s Subscription Amount
divided by the Per Share Purchase Price, registered in the name of such Purchaser;
(v) for each Purchaser of Pre-Funded Warrants pursuant to Section 2.1, a Pre-Funded Warrant registered in the name of such Purchaser
to purchase up to a number of shares of Common Stock equal to the portion of such Purchaser’s Subscription Amount applicable
to Pre-Funded Warrant divided by the Per Share Purchase Price minus $0.001, with an exercise price equal to $0.001, subject to
adjustment therein;
(vi) the Company shall have provided each Purchaser with the Company’s wire instructions, on Company letterhead and executed
by the Chief Executive Officer or Chief Financial Officer; and
(vii) fully executed Lock-Up Agreements from each director and officer of the Company.
(b) On or prior to the Closing Date, each Purchaser shall deliver or cause to be delivered to the Company, the following:
(i) this Agreement duly executed by such Purchaser; and
(ii) such Purchaser’s Subscription Amount by wire transfer to the account specified in writing by the Company.
2.3 Closing Conditions.
(a) The obligations of the Company hereunder in connection with the Closing are subject to the following conditions being met:
(i) the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material
Adverse Change, in all respects) on the Closing Date of the representations and warranties of the Purchasers contained herein
(unless as of a specific date therein in which case they shall be accurate as of such date);
(ii) all obligations, covenants and agreements of each Purchaser required to be performed at or prior to the Closing Date shall have
been performed in all material respects; and
(iii) the delivery by each Purchaser of the items set forth in Section 2.2(b) of this Agreement.
(b) The respective obligations of the Purchasers hereunder in connection with the Closing are subject to the following conditions
being met:
(i) the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material
Adverse Change, in all respects) when made and on the Closing Date of the representations and warranties of the Company contained
herein (unless as of a specific date therein in which case they shall be accurate as of such date);
(ii) all obligations, covenants and agreements of the Company required to be performed at or prior to the Closing Date shall have been
performed in all material respects;
(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 Change with respect to the Company since the date hereof; and
(v) from the date hereof to the Closing Date, trading in the Common Stock shall not have been suspended by the Commission or 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 such Purchaser, makes it impracticable or inadvisable to purchase the Shares and Warrants
at the Closing.
ARTICLE
III
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of the Company. The Company hereby makes the following representations and warranties to
each Purchaser as of the date hereof and as of the Closing Date:
| i. | The
Company has filed with the Commission a registration statement on Form S-3 (File No.
333- 266982) including a related prospectus (the “Base Prospectus”), for
the registration of certain securities (the “Shelf Securities”), including
the Securities, under the Securities Act and the rules and regulations thereunder (the
“Securities Act Regulations”). The registration statement has been
declared effective under the Securities Act by the Commission. The “Registration
Statement,” as of any time, means such registration statement as amended by
any post-effective amendments thereto to such time, including the exhibits and any schedules
thereto at such time, the documents incorporated or deemed to be incorporated by reference
therein at such time pursuant to Form S-3 under the Securities Act and the documents
otherwise deemed to be a part thereof as of such time pursuant to Rule 430A (“Rule
430A”) or Rule 430B under the Securities Act Regulations (“Rule 430B”);
provided, however, that the “Registration Statement” without reference
to a time means such registration statement as amended by any post-effective amendments
thereto as of the time of the first contract of sale for the Securities, which time shall
be considered the “new effective date” of such registration statement with
respect to the Securities within the meaning of paragraph (f)(2) of Rule 430B, including
the exhibits and schedules thereto as of such time, the documents incorporated or deemed
incorporated by reference therein at such time pursuant to Form S-1 under the Securities
Act and the documents otherwise deemed to be a part thereof as of such time pursuant
to Rule 430A or Rule 430B. Any registration statement filed pursuant to Rule 462(b)
of the Securities Act Regulations is hereinafter called the “Rule 462(b) Registration
Statement,” and after such filing the term “Registration Statement”
shall include the Rule 462(b) Registration Statement. The term “Preliminary
Prospectus” means any preliminary form of the Prospectus, including any preliminary
prospectus supplement specifically related to the Securities filed with the Commission
by the Company with the consent of the Placement Agent. |
| ii. | All
references in this Agreement to financial statements and schedules and other information
which is “contained,” “included” or “stated” (or
other references of like import) in the Registration Statement, any Preliminary Prospectus
or the Prospectus shall be deemed to include all such financial statements and schedules
and other information incorporated or deemed incorporated by reference in the Registration
Statement, such Preliminary Prospectus or the Prospectus, as the case may be, prior to
the execution and delivery of this Agreement; and all references in this Agreement to
amendments or supplements to the Registration Statement, any Preliminary Prospectus or
the Prospectus shall be deemed to include the filing of any document under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), and the rules
and regulations thereunder (the “Exchange Act Regulations”), incorporated
or deemed to be incorporated by reference in the Registration Statement, such Preliminary
Prospectus or the Prospectus, as the case may be, at or after the execution and delivery
of this Agreement. |
| iii. | The
term “Disclosure Package” means (i) the Preliminary Prospectus, as
most recently amended or supplemented immediately prior to the Initial Sale Time (as
defined herein), and (ii) the Issuer Free Writing Prospectuses (as defined below), if
any, identified in Schedule I hereto. |
| iv. | The
term “Issuer Free Writing Prospectus” means any issuer free writing
prospectus, as defined in Rule 433 of the Securities Act Regulations. The term “Free
Writing Prospectus” means any free writing prospectus, as defined in Rule 405
of the Securities Act Regulations. |
| v. | Any
Preliminary Prospectus when filed with the Commission, and the Registration Statement
as of each effective date and as of the date hereof, complied or will comply, and the
Prospectus and any further amendments or supplements to the Registration Statement, any
Preliminary Prospectus or the Prospectus will, when they become effective or are filed
with the Commission, as the case may be, comply, in all material respects, with the requirements
of the Securities Act and the Securities Act Regulations; and the documents incorporated
by reference in the Registration Statement, any Preliminary Prospectus or the Prospectus
complied, and any further documents so incorporated will comply, when filed with the
Commission, in all material respects to the requirements of the Exchange Act and Exchange
Act Regulations. |
| vi. | The
issuance by the Company of the Securities has been registered under the Securities Act.
The Securities will be issued pursuant to the Registration Statement and each of the
Securities will be freely transferable and freely tradable by each of the Investors without
restriction, unless otherwise restricted by applicable law or regulation. |
B. Stock Exchange Listing. The Common Stock is approved for listing on The NASDAQ Capital Market (the “Exchange”)
and the Company has taken no action designed to, or likely to have the effect of, delisting the shares of Common Stock from the
Exchange, nor has the Company, except as otherwise disclosed in the DisclosurePackage, received any notification that the Exchange
is contemplating terminating such listing.
C. No Stop Orders, etc. Neither the Commission nor, to the Company's knowledge, any state regulatory authority has issued
any order preventing or suspending the use of the Registration Statement, any Preliminary Prospectus or the Prospectus or has
instituted or, to the Company's knowledge, threatened to institute, any proceedings with respect to such an order. The Company
has complied with each request (if any) from the Commission for additional information.
D. Subsidiaries. The Company's subsidiaries have been duly incorporated and are validly existing as entities in good standing
under the laws of jurisdictions of their respective organization, with power and authority to own, lease and operate their respective
properties and conduct their respective businesses as described in the Preliminary Prospectus, and have been duly qualified as
foreign corporations for the transaction of business and are in good standing under the laws of each other jurisdictions in which
they own or lease properties or conduct any business so as to require such qualification, except where the failure so to qualify
or be in good standing would not have a Material Adverse Change (as defined below); all of the issued and outstanding capital
stock (or other ownership interests) of such subsidiaries has been duly and validly authorized and issued, is fully paid and non-assessable
and is owned, directly and indirectly, by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity. Unless otherwise set forth, all references in this Section 7 to the “Company” shall include references
to all such subsidiaries.
| E. | Disclosures
in Registration Statement. |
| i. | Compliance
with Securities Act and 10b-5 Representation. |
(a) Each of the Registration Statement and any post-effective amendment thereto, at the time it became effective, complied in all
material respects with the requirements of the Securities Act and the Securities Act Regulations. The Preliminary Prospectus and
the Prospectus, at the time each was or will be filed with the Commission, complied or will comply in all material respects with
the requirements of the Securities Act and the Securities Act Regulations. The Preliminary Prospectus delivered to the Placement
Agent for use in connection with this Offering and the Prospectus was or will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(b) None of the Registration Statement, any amendment thereto, or the Preliminary Prospectus, as of 4:00 p.m. (Eastern time) on July
8, 2024 (the “Initial Sale Time”), and at the Closing Date, contained, contains or will contain an
untrue statement of a material fact or omitted, omits or will omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; provided, however, that this representation and warranty shall not apply to statements
made or statements omitted in reliance upon and in conformity with written information furnished to the Company with respect to
the Placement Agent by the Placement Agent expressly for use in the Registration Statement or any amendment thereof or supplement
thereto. The parties acknowledge and agree that such information provided by or on behalf of any Placement Agent consists solely
of the following disclosure contained in the following paragraphs in the “Plan of Distribution” section of the Prospectus:
(i) the name of the Placement Agent, and (ii) the information under the subsection “Fees and Expenses” (the “Placement
Agent’s Information”).
(c) The Disclosure Package, as of the Initial Sale Time and at the Closing Date, did not, does not and will not include an untrue
statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading; and each Issuer Free Writing Prospectus does not conflict with
the information contained in the Registration Statement, any Preliminary Prospectus, or the Prospectus, and each such Issuer Free
Writing Prospectus, as supplemented by and taken together with the Preliminary Prospectus as of the Initial Sale Time, did not
include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading; provided, however, that this representation and
warranty shall not apply to statements made or statements omitted in reliance upon and in conformity with written information
furnished to the Company with respect to the Placement Agent by the Placement Agent expressly for use in the Registration Statement,
the Preliminary Prospectus or the Prospectus or any amendment thereof or supplement thereto. The parties acknowledge and agree
that such information provided by or on behalf of any Placement Agent consists solely of the Placement Agent’s Information;
and
(d) Neither the Prospectus nor any amendment or supplement thereto, as of its issue date, at the time of any filing with the Commission
pursuant to Rule 424(b), or at the Closing Date, included, includes or will include an untrue statement of a material fact or
omitted, omits or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to
the Placement Agent's Information.
| ii. | Disclosure
of Agreements. The agreements and documents described in the Registration Statement,
the Disclosure Package and the Prospectus conform in all material respects to the descriptions
thereof contained therein and there are no agreements or other documents required by
the Securities Act and the Securities Act Regulations to be described in the Registration
Statement, the Disclosure Package and the Prospectus or to be filed with the Commission
as exhibits to the Registration Statement, that have not been so described or filed.
Each agreement or other instrument (however characterized or described) to which the
Company is a party or by which it is or may be bound or affected and (i) that is referred
to in the Registration Statement, the Disclosure Package and the Prospectus, and (ii)
is material to the Company's business, has been duly authorized and validly executed
by the Company, is in full force and effect in all material respects and is enforceable
against the Company and, to the Company's knowledge, the other parties thereto, in accordance
with its terms, except (x) as such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally, (y) as enforceability
of any indemnification or contribution provision may be limited under the federal and
state securities laws, and (z) that the remedy of specific performance and injunctive
and other forms of equitable relief may be subject to the equitable defenses and to the
discretion of the court before which any proceeding therefor may be brought. None of
such agreements or instruments has been assigned by the Company, and neither the Company
nor, to the Company's knowledge, any other party is in default thereunder and, to the
Company's knowledge, no event has occurred that, with the lapse of time or the giving
of notice, or both, would constitute a default thereunder, except as disclosed in the
Registration Statement, the Disclosure Package and the Prospectus. To the Company's knowledge,
performance by the Company of the material provisions of such agreements or instruments
will not result in a violation of any existing applicable law, rule, regulation, judgment,
order or decree of any governmental agency or court, domestic or foreign, having jurisdiction
over the Company or any of its assets or businesses (each, a “Governmental Entity”),
including, without limitation, those relating to environmental laws and regulations. |
| iii. | Prior
Securities Transactions. For the past three completed fiscal years through the date
hereof, no securities of the Company have been sold by the Company or, to the Company’s
knowledge, by or on behalf of, or for the benefit of, any person or persons controlling,
controlled by or under common control with the Company, except as disclosed in the Registration
Statement, the Disclosure Package and the Preliminary Prospectus or, with respect to
parties other than the Company, other filings by such other persons with the Commission. |
| iv. | Regulations.
The disclosures in the Registration Statement, the Disclosure Package and the Prospectus
concerning the effects of federal, state, local and all foreign regulation on the Offering
and the Company's business as currently contemplated are correct in all material respects
and no other such regulations are required to be disclosed in the Registration Statement,
the Disclosure Package and the Prospectus which are not so disclosed. |
| v. | Changes
After Dates in Registration Statement. |
| (a) | No
Material Adverse Change. Since the respective dates as of which information is given in the Registration Statement, the Disclosure
Package and the Prospectus, except as otherwise specifically stated therein: (i) there has been no material adverse change in
the financial position or results of operations of the Company, nor any change or development that, singularly or in the aggregate,
would involve a material adverse change, in or affecting the condition (financial or otherwise), results of operations, business,
assets or prospects of the Company (a “Material Adverse Change”); (ii) there have been no material transactions
entered into by the Company, other than as contemplated pursuant to this Agreement; and (iii) no officer or director of the Company
has resigned from any position with the Company. |
| (b) | Recent
Securities Transactions, etc. Subsequent to the respective dates as of which information is given in the Registration Statement,
the Disclosure Package and the Prospectus, and except as may otherwise be indicated or contemplated herein or disclosed in the
Registration Statement, the Disclosure Package and the Prospectus, the Company has not: (i) issued any securities (other than
(A) grants under any stock compensation or employee stock purchase plans and (B) shares of common stock issued upon exercise or
conversion of options, warrants or convertible securities described in the Registration Statement, the Disclosure Package and
the Prospectus) or incurred any liability or obligation, direct or contingent, for borrowed money; or (ii) declared or paid any
dividend or made any other distribution on or in respect to its capital stock. |
F. Independent Accountants. To the knowledge of the Company, EisnerAmper LLP, during such time as it was engaged by the Company
(the “Auditors”), has been an independent registered public accounting firm as required by the Securities Act
and the Securities Act Regulations and the Public Company Accounting Oversight Board. During such time period in which the Auditors
served as the Company's independent registered public accounting firm the Auditors did not or have not, during the periods covered
by the financial statements included in the Registration Statement, the Disclosure Package and the Prospectus, provided to the
Company any non-audit services, as such term is used in Section 10A(g) of the Exchange Act.
G. SEC Reports; Financial Statements, etc. The Company has complied in all material respects with requirements to file all
reports, schedules, forms, statements and other documents required to be filed by it under the Securities Act and the Exchange
Act, including pursuant to Section 13(a) or 15(d) thereof (the foregoing materials, including the exhibits thereto and documents
incorporated by reference therein, being collectively referred to herein as the “SEC Reports”) on a timely
basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any
such extension. As of their respective dates, the SEC Reports complied in all material respects with the requirements of the Securities
Act and the Exchange Act and the rules and regulations of the Commission promulgated thereunder, and none of the SEC Reports,
when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
The financial statements of the Company included in the SEC Reports comply in all material respects with applicable accounting
requirements and the rules and regulations of the Commission with respect thereto as in effect at the time of filing. Such financial
statements have been prepared in accordance with United States generally accepted accounting principles applied on a consistent
basis during the periods involved (“GAAP”), except as may be otherwise specified in such financial statements
or the notes thereto and except that unaudited financial statements may not contain all footnotes required by GAAP, and fairly
present in all material respects the financial position of the Company and its consolidated subsidiaries as of and for the dates
thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements,
to normal year-end audit adjustments that are not expected to be material in the aggregate. The financial statements, including
the notes thereto and supporting schedules included in the Registration Statement, the Disclosure Package and the Prospectus,
fairly present in all material respects the financial position and the results of operations of the Company at the dates and for
the periods to which they apply; and such financial statements have been prepared in conformity with GAAP, consistently applied
throughout the periods involved (provided that unaudited interim financial statements are subject to year-end audit adjustments
that are not expected to be material in the aggregate and do not contain all footnotes required by GAAP); and the supporting schedules
included in the Registration Statement present fairly in all material respects the information required to be stated therein.
Except as included therein, no historical or pro forma financial statements are required to be included in the Registration Statement,
the Disclosure Package or the Prospectus under the Securities Act or the Securities Act Regulations. The pro forma and pro forma
as adjusted financial information and the related notes, if any, included in the Registration Statement, the Disclosure Package
and the Prospectus have been properly compiled and prepared in all material respects in accordance with the applicable requirements
of the Securities Act and the Securities Act Regulations and present fairly in all material respects the information shown therein,
and the assumptions used in the preparation thereof are reasonable and the adjustments used therein are appropriate to give effect
to the transactions and circumstances referred to therein. All disclosures contained in the Registration Statement, the Disclosure
Package or the Prospectus regarding “non-GAAP financial measures” (as such term is defined by the rules and regulations
of the Commission), if any, comply with Regulation G of the Exchange Act and Item 10 of Regulation S-K of the Securities Act,
to the extent applicable. Each of the Registration Statement, the Disclosure Package and the Prospectus discloses all material
off-balance sheet transactions, arrangements, obligations (including contingent obligations), and other relationships of the Company
with unconsolidated entities or other persons that may have a material current or future effect on the Company's financial condition,
changes in financial condition, results of operations, liquidity, capital expenditures, capital resources, or significant components
of revenues or expenses. Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, (a) the
Company has not incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions
other than in the ordinary course of business, (b) the Company has not declared or paid any dividends or made any distribution
of any kind with respect to its capital stock, (c) there has not been any change in the capital stock of the Company (other than
(i) grants under any stock compensation plan and (ii) shares of common stock issued upon exercise or conversion of option, warrants
or convertible securities described in the Registration Statement, the Disclosure Package and the Prospectus), and (d) there has
not been any Material Adverse Change in the Company's long-term or short-term debt.
H. Authorized Capital; Options, etc. The Company had, at the date or dates indicated in the Registration Statement, the Disclosure
Package and the Prospectus, the duly authorized, issued and outstanding capitalization as set forth therein. Based on the assumptions
stated in the Registration Statement, the Disclosure Package and the Prospectus, the Company will have on the Closing Date the
adjusted stock capitalization set forth therein. Except as set forth in, or contemplated by, the Registration Statement, the Disclosure
Package and the Prospectus, on the Effective Date, as of the Initial Sale Time, on the Closing Date, there will be no stock options,
warrants, or other rights to purchase or otherwise acquire any authorized, but unissued shares of Common Stock of the Company
or any security convertible or exercisable into shares of Common Stock of the Company, or any contracts or commitments to issue
or sell shares of Common Stock or any such options, warrants, rights or convertible securities.
I. Valid Issuance of Securities, etc.
i. Outstanding Securities. All issued and outstanding securities of the Company issued prior to the transactions contemplated
by this Agreement have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have
no rights of rescission with respect thereto, and are not subject to personal liability by reason of being such holders; and except
as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, none of such securities were issued in
violation of the preemptive rights of any holders of any security of the Company or similar contractual rights granted by the
Company. The authorized shares of Common Stock, Company preferred stock and other outstanding securities conform in all material
respects to all statements relating thereto contained in the Registration Statement, the Disclosure Package and the Prospectus.
The offers and sales of the outstanding shares of Common Stock were at all relevant times either registered under the Securities
Act and the applicable state securities or “blue sky” laws or, based in part on the representations and warranties
of the purchasers of such shares, exempt from such registration requirements.
ii. Securities Sold Pursuant to this Agreement. The Securities have been duly authorized for issuance and sale and, when issued
and paid for, will be validly issued, fully paid and non-assessable; to the Company’s knowledge, the holders thereof are
not and will not be subject to personal liability by reason of being such holders; the Common Stock is not and will not be subject
to the preemptive rights of any holders of any security of the Company or similar contractual rights granted by the Company. All
corporate action required to be taken for the authorization, issuance and sale of the Securities have been duly and validly taken;
the Common Stock underlying the Pre-Funded Warrants has been duly authorized and reserved for issuance by all necessary corporate
action on the part of the Company and when paid for and issued in accordance with the Pre-Funded Warrants, such Common Stock will
be validly issued, fully paid and non-assessable; the holders thereof are not and will not be subject to personal liability by
reason of being such holders; and such shares of Common Stock are not and will not be subject to the preemptive rights of any
holders of any security of the Company or similar contractual rights granted by the Company. The Securities conform in all material
respects to all statements with respect thereto contained in the Registration Statement, the Disclosure Package and the Prospectus.
J. Reserved.
K. Validity and Binding Effect of Agreements. This Agreement and the Transaction Documents have been duly and validly authorized
by the Company, and, when executed and delivered, will constitute, the valid and binding agreements of the Company, enforceable
against the Company in accordance with its respective terms, except: (i) as such enforceability may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights generally; (ii) as enforceability of any indemnification
or contribution provision may be limited under the federal and state securities laws; and (iii) that the remedy of specific performance
and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
L. No Conflicts, etc. The execution, delivery and performance by the Company of this Agreement, the Transaction Documents
and all ancillary documents, the consummation by the Company of the transactions herein and therein contemplated and the compliance
by the Company with the terms hereof and thereof do not and will not, with or without the giving of notice or the lapse of time
or both: (i) result in a material breach of, or conflict with any of the terms and provisions of, or constitute a material default
under, or result in the creation, modification, termination or imposition of any lien, charge or encumbrance upon any property
or assets of the Company pursuant to the terms of any agreement or instrument to which the Company is a party; (ii) result in
any violation of the provisions of the Company's Certificate of Incorporation (as the same may be amended or restated from time
to time, the “Charter”) or the by-laws of the Company (as the same may be amended or restated from time to
time, the “Bylaws”); or (iii) violate any existing applicable law, rule, regulation, judgment, order or decree
of any Governmental Entity as of the date hereof.
M. Reserved.
N. No Defaults; Violations. No material default exists in the due performance and observance of any term, covenant or condition
of any material license, contract, indenture, mortgage, deed of trust, note, loan or credit agreement, or any other agreement
or instrument evidencing an obligation for borrowed money, or any other material agreement or instrument to which the Company
is a party or by which the Company may be bound or to which any of the properties or assets of the Company is subject. The Company
is not (i) in violation of any term or provision of its Charter or Bylaws, or (ii) in violation of any franchise, license, permit,
applicable law, rule, regulation, judgment or decree of any Governmental Entity applicable to the Company.
O. Corporate Power; Licenses; Consents.
i. Except as described in the Registration Statement, the Disclosure Package and the Prospectus, the Company has all requisite corporate
power and authority, and has all necessary authorizations, approvals, orders, licenses, certificates and permits of and from all
governmental regulatory officials and bodies that it needs as of the date hereof to conduct its business purpose as described
in the Registration Statement, the Disclosure Package and the Prospectus.
ii. The Company has all corporate power and authority to enter into this Agreement and to carry out the provisions and conditions
hereof, and all consents, authorizations, approvals and orders required in connection therewith have been obtained. No consent,
authorization or order of, and no filing with, any court, government agency or other body is required for the valid issuance,
sale and delivery of the Common Stock, and the consummation of the transactions and agreements contemplated by this Agreement
and as contemplated by the Registration Statement, the Disclosure Package and the Prospectus, except with respect to applicable
federal and state securities laws and the rules and regulations of the Financial Industry Regulatory Authority, Inc. (“FINRA”).
P. Litigation; Governmental Proceedings. There is no material action, suit, proceeding, inquiry, arbitration, investigation,
litigation or governmental proceeding pending or, to the Company's knowledge, threatened against, or involving the Company or,
to the Company's knowledge, any executive officer or director which has not been disclosed in the Registration Statement, the
Disclosure Package and the Prospectus or in connection with the Company's listing application for the additional listing of the
Common Stock on the Exchange.
Q. Good Standing. The Company has been duly organized and is validly existing as a corporation and is in good standing under
the laws of the State of Nevada as of the date hereof, and is duly qualified to do business and is in good standing in each other
jurisdiction in which its ownership or lease of property or the conduct of business requires such qualification, except where
the failure to qualify, singularly or in the aggregate, would not have or reasonably be expected to result in a Material Adverse
Change.
R. Insurance. The Company carries or is entitled to the benefits of insurance, with, to the Company's knowledge, reputable
insurers, and in such amounts and covering such risks which the Company believes are reasonably adequate, and all such insurance
is in full force and effect. The Company has no reason to believe that it will not be able (i) to renew its existing insurance
coverage as and when such policies expire or (ii) to obtain comparable coverage from similar institutions as may be necessary
or appropriate to conduct its business as now conducted and at a cost that would not result in a Material Adverse Change.
S. Transactions Affecting Disclosure to FINRA.
i. Finder's Fees. Except as described in the Registration Statement, the Disclosure Package and the Prospectus, there are
no claims, payments, arrangements, agreements or understandings relating to the payment of a finder's, consulting or origination
fee by the Company or any executive officer or director of the Company (each an, “Insider”) with respect to
the sale of the Securities hereunder or any other arrangements, agreements or understandings of the Company or, to the Company's
knowledge, any of its stockholders that may affect the Placement Agent’s compensation, as determined by FINRA.
ii. Payments Within Twelve (12) Months. Except as described in the Registration Statement, the Disclosure Package and the Prospectus,
the Company has not made any direct or indirect payments (in cash, securities or otherwise) to: (i) any person, as a finder's
fee, consulting fee or otherwise, in consideration of such person raising capital for the Company or introducing to the Company
persons who raised or provided capital to the Company; (ii) any FINRA member; or (iii) any person or entity that has any direct
or indirect affiliation or association with any FINRA member, within the twelve (12) months prior to the date hereof, other than
(A) the payment to the Placement Agent as provided hereunder in connection with the Offering, and (B) other payments to the Placement
Agent under other engagement letters.
iii. Use of Proceeds. None of the net proceeds of the Offering will be paid by the Company to any participating FINRA member
or its affiliates, except as specifically authorized herein.
iv. FINRA Affiliation. There is no (i) officer or director of the Company, (ii) to the Company’s knowledge, beneficial
owner of 5% or more of any class of the Company's securities or (iii) to the Company’s knowledge, beneficial owner of the
Company's unregistered equity securities which were acquired during the 180-day period immediately preceding the filing of the
Registration Statement that is an affiliate or associated person of a FINRA member participating in the Offering (as determined
in accordance with the rules and regulations of FINRA).
v. Information. To the Company's knowledge, all information provided by the Company's officers and directors in their FINRA
Questionnaires to counsel to the Placement Agent specifically for use by counsel to the Placement Agent in connection with its
Public Offering System filings (and related disclosure) with FINRA is true, correct and complete in all material respects.
T. Foreign Corrupt Practices Act. Neither the Company nor, to the Company's knowledge, any director, officer, agent, employee
or affiliate of the Company or any other person acting on behalf of the Company, has, directly or indirectly, given or agreed
to give any money, gift or similar benefit (other than legal price concessions to customers in the ordinary course of business)
to any customer, supplier, employee or agent of a customer or supplier, or official or employee of any Governmental Entity or
any political party or candidate for office (domestic or foreign) or other person who was, is, or may be in a position to help
or hinder the business of the Company (or assist it in connection with any actual or proposed transaction) that would subject
the Company to any damage or penalty in any civil, criminal or governmental litigation or proceeding. The Company has taken reasonable
steps to ensure that its accounting controls and procedures are sufficient to cause the Company to comply in all material respects
with the Foreign Corrupt Practices Act of 1977, as amended.
U. Compliance with OFAC. Neither of the Company nor, to the Company's knowledge, any director, officer, agent, employee or
affiliate of the Company, is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the
U.S. Department of the Treasury (“OFAC”), and the Company will not knowingly, directly or indirectly, use the
proceeds of the Offering hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture
partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions
administered by OFAC.
V. Money Laundering Laws. The operations of the Company are and have been conducted at all times in compliance in all material
respects with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting
Act of 1970, as amended, the money laundering statutes of all applicable jurisdictions, the rules and regulations thereunder and
any related or similar rules, regulations or guidelines, issued, administered or enforced by any Governmental Entity (collectively,
the “Money Laundering Laws”); and no action, suit or proceeding by or before any Governmental Entity involving
the Company with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
W. Officers' Certificate. Any certificate signed by any duly authorized officer of the Company and delivered to you or to
Placement Agent Counsel shall be deemed a representation and warranty by the Company to the Placement Agent as to the matters
covered thereby.
X. Related Party Transactions. There are no business relationships or related party transactions involving the Company or
any other person required to be described in the Registration Statement, the Disclosure Package and the Prospectus that have not
been described as required.
Y. Board of Directors. The qualifications of the persons serving as board members and the overall composition of the board
comply in all material respects with the Exchange Act, the Exchange Act Regulations, the Sarbanes-Oxley Act of 2002 and the rules
promulgated thereunder (the “Sarbanes-Oxley Act”) applicable to the Company and the listing rules of the Exchange.
At least one member of the Audit Committee of the Board of Directors of the Company qualifies as an “audit committee financial
expert,” as such term is defined under Regulation S-K and the listing rules of the Exchange. In addition, at least a majority
of the persons serving on the Board of Directors qualify as “independent,” as defined under the listing rules of the
Exchange.
Z. Sarbanes-Oxley Compliance.
i. The Company has developed and currently maintains disclosure controls and procedures that will comply with Rule 13a-15 or 15d-15
under the Exchange Act Regulations applicable to it, and such controls and procedures are effective to ensure that all material
information concerning the Company will be made known on a timely basis to the individuals responsible for the preparation of
the Company's Exchange Act filings and other public disclosure documents.
ii. The Company is, or at the Initial Sale Time and on the Closing Date will be, in material compliance with the provisions of the
Sarbanes-Oxley Act applicable to it, and has implemented or will implement such programs and taken reasonable steps to ensure
the Company's future compliance (not later than the relevant statutory and regulatory deadlines therefor) with all of the material
provisions of the Sarbanes-Oxley Act.
AA. Accounting Controls. The Company maintains systems of “internal control over financial reporting” (as defined
under Rules 13a-15 and 15d-15 under the Exchange Act Regulations) that comply in all material respects with the requirements of
the Exchange Act and have been designed by, or under the supervision of, its principal executive and principal financial officers,
or persons performing similar functions, to provide reasonable assurance regarding the reliability of financial reporting and
the preparation of financial statements for external purposes in accordance with GAAP, including, but not limited to, internal
accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management's
general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements
in conformity with GAAP and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management's
general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences. Except as disclosed in the Registration Statement,
the Disclosure Package and the Prospectus, the Company is not aware of any material weaknesses in its internal controls. The Auditors
and the Audit Committee of the Board of Directors of the Company have been advised of: (i) all significant deficiencies and material
weaknesses, if any, in the design or operation of internal controls over financial reporting which are known to the Company's
management and that have adversely affected or are reasonably likely to adversely affect the Company' ability to record, process,
summarize and report financial information; and (ii) any fraud, if any, known to the Company's management, whether or not material,
that involves management or other employees who have a significant role in the Company's internal controls over financial reporting.
BB. No Investment Company Status. The Company is not and, after giving effect to the Offering and the application of the proceeds
thereof as described in the Registration Statement, the Disclosure Package and the Prospectus, will not be, required to register
as an “investment company,” as defined in the Investment Company Act of 1940, as amended.
CC. No Labor Disputes. No labor dispute with the employees of the Company exists or, to the knowledge of the Company, is imminent,
except where such dispute would not be expected to have a Material Adverse Change.
DD. Intellectual Property Rights. To the Company's knowledge, the Company has, or can acquire on reasonable terms, ownership
of and/or license to, or otherwise has the right to use, all inventions, know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or procedures), patents and patent rights trademarks, service
marks and trade names, copyrights, (collectively “Intellectual Property”) material to carrying on its business
as described in the Prospectus. The Company has not received any correspondence relating to (A) infringement or misappropriation
of, or conflict with, any Intellectual Property of a third party; (B) asserted rights of others with respect to any Intellectual
Property of the Company; or (C) assertions that any Intellectual Property of the Company is invalid or otherwise inadequate to
protect the interest of the Company, that in each case (if the subject of any unfavorable decision, ruling or finding), individually
or in the aggregate, would have or would reasonably be expected to have a Material Adverse Change. There are no third parties
who have been able to establish any material rights to any Intellectual Property, except for the retained rights of the owners
or licensors of any Intellectual Property that is licensed to the Company. There is no pending or, to the Company's knowledge,
threatened action, suit, proceeding or claim by others: (A) challenging the validity, enforceability or scope of any Intellectual
Property of the Company or (B) challenging the Company's rights in or to any Intellectual Property or (C) that the Company
materially infringes, misappropriates or otherwise violates or conflicts with any Intellectual Property or other proprietary rights
of others. The Company has complied in all material respects with the terms of each agreement described in the Registration Statement,
Disclosure Package or Prospectus pursuant to which any Intellectual Property is licensed to the Company, and all such agreements
related to products currently made or sold by the Company, or to product candidates currently under development, are in full force
and effect. All patents issued in the name of, or assigned to, the Company, and all patent applications made by or on behalf of
the Company (collectively, the “Company Patents”) have been duly and properly filed. The Company is not aware
of any material information that was required to be disclosed to the United States Patent and Trademark Office (the “PTO”)
but that was not disclosed to the PTO with respect to any issued Company Patent, or that is required to be disclosed and has not
yet been disclosed in any pending application in the Company Patents and that would preclude the grant of a patent on such application.
To the Company's knowledge, the Company is the sole owner of the Company Patents.
EE. Taxes. The Company has filed all returns (as hereinafter defined) required to be filed with taxing authorities prior to
the date hereof or has duly obtained extensions of time for the filing thereof. The Company has paid all taxes (as hereinafter
defined) shown as due on such returns that were filed and has paid all taxes imposed on or assessed against the Company, except
for such exceptions as could not be expected, individually or in the aggregate, to have a Material Adverse Change. The provisions
for taxes payable, if any, shown on the financial statements filed with or as part of the Registration Statement are sufficient
for all accrued and unpaid taxes, whether or not disputed, and for all periods to and including the dates of such consolidated
financial statements. Except as disclosed in writing to the Placement Agent, (i) no issues have been raised (and are currently
pending) by any taxing authority in connection with any of the returns or taxes asserted as due from the Company, and (ii) no
waivers of statutes of limitation with respect to the returns or collection of taxes have been given by or requested from the
Company. The term “taxes” mean all federal, state, local, foreign and other net income, gross income, gross receipts,
sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment,
excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties or other taxes, fees, assessments or
charges of any kind whatever, together with any interest and any penalties, additions to tax or additional amounts with respect
thereto. The term “returns” means all returns, declarations, reports, statements and other documents required to be
filed in respect to taxes.
FF. Employee Benefit Laws. To the extent applicable, the operations of the Company and its subsidiaries are and have been conducted
at all times in material compliance with the Employee Retirement Income Security Act of 1974, as amended, the rules and regulations
thereunder and any applicable related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental
agency (collectively, the “Employee Benefit Laws”) and no action, suit or proceeding by or before any court
or governmental agency, authority or body or any arbitrator involving the Company or its subsidiaries with respect to the Employee
Benefit Laws is pending or, to the knowledge of the Company, threatened.
GG. Compliance with Laws. The Company: (A) is and at all times has been in compliance with all Applicable Laws, except as would
not, individually or in the aggregate, reasonably be expected to have a Material Adverse Change; (B) has not received any correspondence
from any Governmental Entity alleging or asserting noncompliance with any Applicable Laws or any Authorizations; (C) possesses
all material Authorizations and such Authorizations are valid and in full force and effect and the Company is not in material
violation of any term of any such Authorizations, in each case except as would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Change; (D) has not received written notice of any claim, action, suit, proceeding, hearing,
enforcement, investigation, arbitration or other action from any Governmental Entity or third party alleging that any product
operation or activity is in violation of any Applicable Laws or Authorizations and has no knowledge that any such Governmental
Entity or third party is considering any such claim, litigation, arbitration, action, suit, investigation or proceeding; (E) has
not received written notice that any Governmental Entity has taken, is taking or intends to take action to limit, suspend, modify
or revoke any Authorizations; (F) has filed, obtained, maintained or submitted all material reports, documents, forms, notices,
applications, records, claims, submissions and supplements or amendments as required by any Applicable Laws or Authorizations
and that all such reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments
were complete and correct in all material respects on the date filed (or were corrected or supplemented by a subsequent submission);
and (G) has not, either voluntarily or involuntarily, initiated, conducted, or issued or caused to be initiated, conducted or
issued, any recall, market withdrawal or replacement, safety alert, post-sale warning, “dear doctor” letter, or other
notice or action relating to the alleged lack of safety or efficacy of any product or any alleged product defect or violation
and, to the Company's knowledge, no third party has initiated, conducted or intends to initiate any such notice or action.
HH. FDA. As to each product subject to the jurisdiction of the U.S. Food and Drug Administration (“FDA”)
under the Federal Food, Drug and Cosmetic Act, as amended, and the regulations thereunder (“FDCA”) that is
manufactured, packaged, labeled, tested, distributed, sold, and/or marketed by the Company or any of its subsidiaries (each such
product, a “Pharmaceutical Product”), such Pharmaceutical Product is being manufactured, packaged, labeled,
tested, distributed, sold and/or marketed by the Company in compliance with all applicable requirements under FDCA and similar
laws, rules and regulations relating to registration, investigational use, premarket clearance, licensure, or application approval,
good manufacturing practices, good laboratory practices, good clinical practices, product listing, quotas, labeling, advertising,
record keeping and filing of reports, except where the failure to be in compliance would not have a Material Adverse Change. There
is no pending, completed or, to the Company's knowledge, threatened, action (including any lawsuit, arbitration, or legal or administrative
or regulatory proceeding, charge, complaint, or investigation) against the Company or any of its subsidiaries, and none of the
Company or any of its subsidiaries has received any notice, warning letter or other communication from the FDA or any other governmental
entity, which (i) contests the premarket clearance, licensure, registration, or approval of, the uses of, the distribution of,
the manufacturing or packaging of, the testing of, the sale of, or the labeling and promotion of any Pharmaceutical Product, (ii)
withdraws its approval of, requests the recall, suspension, or seizure of, or withdraws or orders the withdrawal of advertising
or sales promotional materials relating to, any Pharmaceutical Product, (iii) imposes a clinical hold on any clinical investigation
by the Company or any of its subsidiaries, (iv) enjoins production at any facility of the Company or any of its subsidiaries,
(v) enters or proposes to enter into a consent decree of permanent injunction with the Company or any of its subsidiaries, or
(vi) otherwise alleges any violation of any laws, rules or regulations by the Company or any of its subsidiaries, and which, either
individually or in the aggregate, would have a Material Adverse Change. The properties, business and operations of the Company
have been and are being conducted in all material respects in accordance with all applicable laws, rules and regulations of the
FDA. The Company has not been informed by the FDA that the FDA will prohibit the marketing, sale, license or use in the
United States of any product proposed to be developed, produced or marketed by the Company nor has the FDA expressed any concern
as to approving or clearing for marketing any product being developed or proposed to be developed by the Company.
II. Industry Data. The statistical and market-related data included in each of the Registration Statement, the Disclosure Package
and the Prospectus are based on or derived from sources that the Company reasonably and in good faith believes are reliable and
accurate or represent the Company's good faith estimates that are made on the basis of data derived from such sources.
JJ. Forward-Looking Statements. No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section
21E of the Exchange Act) contained in the Registration Statement, the Disclosure Package or the Prospectus has been made or reaffirmed
without a reasonable basis or has been disclosed other than in good faith.
KK. Margin Securities. The Company owns no “margin securities” as that term is defined in Regulation U of the Board
of Governors of the Federal Reserve System (the “Federal Reserve Board”), and none of the proceeds of Offering
will be used, directly or indirectly, for the purpose of purchasing or carrying any margin security, for the purpose of reducing
or retiring any indebtedness which was originally incurred to purchase or carry any margin security or for any other purpose which
might cause any of the shares of Common Stock to be considered a “purpose credit” within the meanings of Regulation
T, U or X of the Federal Reserve Board.
LL. Integration. To the Company’s knowledge, neither the Company, nor any of its affiliates, nor any person acting on
its or their behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security,
under circumstances that would cause the Offering to be integrated with prior offerings by the Company for purposes of the Securities
Act that would require the registration of any such securities under the Securities Act.
MM. Confidentiality and Non-Competition. To the Company's knowledge, no director, officer, key employee or consultant of the
Company is subject to any confidentiality, non-disclosure, non-competition agreement or non-solicitation agreement with any employer
or prior employer that could reasonably be expected to materially affect his ability to be and act in his respective capacity
of the Company or be expected to result in a Material Adverse Change.
NN. Restriction on Sales of Capital Stock. The Company, on behalf of itself and any successor entity, agrees that it will not,
for a period of 30 days from the Closing Date (the “Restricted Period”), without the prior written consent of the
Placement Agent, offer, sell, or otherwise transfer or dispose of, directly or indirectly, any shares of capital stock of the
Company or any securities convertible into or exercisable or exchangeable for shares of capital stock of the Company; provided,
that the Company may at any time during the Restricted Period, with or without the prior written consent of the Placement Agent,
sell shares of capital stock of the Company or any securities convertible into or exercisable or exchangeable for shares of capital
stock of the Company in any PIPE transaction raising gross proceeds to the Company of $30.0 million or more (a “PIPE Transaction”).
The restrictions contained in this section shall not apply to any Exempt Issuance.
OO. Reserved.
PP. Lock-Up Agreements. The Company has caused each of its officers and directors to deliver to the Placement Agent an executed
Lock-Up Agreement, in such form as approved by the Placement Agent (the “Lock-Up Agreement”), prior to the
execution of this Agreement.
3.2 Representations and Warranties of the Purchasers. Each Purchaser, for itself and for no other Purchaser, hereby
represents and warrants as of the date hereof and as of the Closing Date to the Company as follows (unless as of a specific date
therein, in which case they shall be accurate as of such date):
(a) Organization; Authority. Such Purchaser is either an individual or an entity duly incorporated or formed, validly
existing and in good standing under the laws of the jurisdiction of its incorporation or formation with full right, corporate,
partnership, limited liability company or similar power and authority to enter into and to consummate the transactions contemplated
by the Transaction Documents and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of
the Transaction Documents and performance by such Purchaser of the transactions contemplated by the Transaction Documents have
been duly authorized by all necessary corporate, partnership, limited liability company or similar action, as applicable, on the
part of such Purchaser. Each Transaction Document to which it is a party has been duly executed by such Purchaser,
and when delivered by such Purchaser in accordance with the terms hereof, will constitute the valid and legally binding obligation
of such Purchaser, enforceable against it in accordance with its terms, except ( i) as limited by general equitable principle
s 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) Own Account; Understandings or Arrangements. Such Purchaser is acquiring the Securities as principal for its
own account and has no direct or indirect arrangement or understandings with any other persons to distribute or regarding
the distribution of such Securities (this representation and warranty not limiting such Purchaser’s right to sell the Securities
pursuant to the Registration Statement or otherwise in compliance with applicable federal and state securities laws). Such
Purchaser is acquiring the Securities hereunder in the ordinary course of its business.
(c) Purchaser Status. At the time such Purchaser was offered the Securities, it was, and as of the date hereof it
is, and on each date on which it exercises any Purchase Warrants, it will be either: (i) 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 or (ii) a “qualified
institutional buyer” as defined in Rule 144A(a) under the Securities Act.
(d) Experience of Such Purchaser. Such Purchaser, either alone or together with its representatives, has such knowledge,
sophistication and experience in business and financial matters so as to be capable of evaluating the merits and risks of the
prospective investment in the Securities, and has so evaluated the merits and risks of such investment. Such Purchaser
is able to bear the economic risk of an investment in the Securities and, at the present time, is able to afford a complete loss
of such investment.
(e) Reserved.
(f) Access to Information. Such Purchaser acknowledges that it has had the opportunity to review the Transaction Documents
(including all exhibits and schedules thereto) and the SEC Reports and has been afforded (i) the opportunity to ask such questions
as it has deemed necessary of, and to receive answers from, representatives of the Company concerning the terms and conditions
of the offering of the Securities and the merits and risks of investing in the Securities; (ii) access to information about the
Company and its financial condition, results of operations, business, properties, management and prospects sufficient to enable
it to evaluate its investment; and (iii) the opportunity to obtain such additional information that the Company possesses or can
acquire without unreasonable effort or expense that is necessary to make an informed investment decision with respect to the investment.
Such Purchaser acknowledges and agrees that neither the Placement Agent nor any Affiliate of the Placement Agent has provided
such Purchaser with any information or advice with respect to the Securities nor is such information or advice necessary or desired.
Neither the Placement Agent nor any Affiliate has made or makes any representation as to the Company or the quality of the Securities
and the Placement Agent and any Affiliate may have acquired non-public information with respect to the Company which such Purchaser
agrees need not be provided to it. In connection with the issuance of the Securities to such Purchaser, neither the Placement
Agent nor any of its Affiliates has acted as a financial advisor or fiduciary to such Purchaser.
(g) Certain Transactions and Confidentiality. Other than consummating the transactions contemplated hereunder, such
Purchaser has not, nor has any Person acting on behalf of or pursuant to any understanding with such Purchaser, directly or indirectly
executed any purchases or sales, including Short Sales, of the securities of the Company during the period commencing as
of the time that such Purchaser first received a term sheet (written or oral) from the Company or any other Person representing
the Company setting forth the material terms of the transactions contemplated hereunder and ending immediately prior to the execution
hereof. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby
separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct
knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets,
the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that
made the investment decision to purchase the Securities covered by this Agreement. Other than to other Persons party
to this Agreement or to such Purchaser’s representatives, including, without limitation, its officers, directors, partners,
legal and other advisors, employees, Agent and Affiliates, such Purchaser has maintained the confidentiality of all disclosures
made to it in connection with this transaction (including the existence and terms of this transaction). Notwithstanding the foregoing,
for the avoidance of doubt, nothing contained herein shall constitute a representation or warranty, or preclude any actions, with
respect to locating or borrowing shares 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 such
Purchaser’s right to rely on the Company’s representations and warranties contained in this Agreement or any representations
and warranties contained in any other Transaction Document or any other document or instrument executed and/or delivered in connection
with this Agreement or the consummation of the transactions contemplated hereby. Notwithstanding the foregoing, for
the avoidance of doubt, nothing contained herein shall constitute a representation or warranty, or preclude any actions, 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 any Purchaser to sell, any of the Warrant
Shares in compliance with applicable federal and state securities laws). The Company shall use best efforts to keep a registration
statement (including the Registration Statement) registering the issuance or resale of the Warrant Shares effective during the
term of the Warrants.
4.2 Furnishing of Information; Public Information. Until the earliest of the time that (i) no Purchaser owns Securities
or (ii) the Warrants have expired, the Company covenants to use commercially reasonable efforts to maintain the registration of
the Securities under Section 12(b) or 12(g) of the Exchange Act and to timely file (or obtain extensions in respect thereof and
file within the applicable grace period) all reports required to be filed by the Company after the date hereof pursuant to the
Exchange Act 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 Warrants
or Warrant Shares in a manner that would require the registration under the Securities Act of the sale of the Warrants or Warrant
Shares or that would be integrated with the offer or sale of the Warrants or Warrant Shares for purposes of the rules and regulations
of any Trading Market such that it would require shareholder approval prior to the closing of such other transaction unless shareholder
approval is obtained before the closing of such subsequent transaction.
4.4 Securities Laws Disclosure; Publicity. The Company shall (a) by the Disclosure Time, issue a press release disclosing
the material terms of the transactions contemplated hereby, and (b) file a Current Report on Form 8-K, including the Transaction
Documents as exhibits thereto, with the Commission within the time required by the Exchange Act. From and after the
issuance of such press release, the Company represents to the Purchasers that it shall have publicly disclosed all material, non-public
information delivered to any of the Purchasers by the Company or any of its Subsidiaries, or any of their respective officers,
directors, employees or Agent in connection with the transactions contemplated by the Transaction Documents. In addition, effective
upon the issuance of such press release, the Company acknowledges and agrees that any and all confidentiality or similar obligations
under any agreement, whether written or oral, between the Company, any of its Subsidiaries or any of their respective officers,
directors, Agent, employees or Affiliates on the one hand, and any of the Purchasers or any of their Affiliates on the other hand,
shall terminate. The Company and each Purchaser shall consult with each other in issuing any other press releases with respect
to the transactions contemplated hereby, and neither the Company nor any Purchaser shall issue any such press release nor otherwise
make any such public statement without the prior consent of the Company, with respect to any such press release of any Purchaser,
or without the prior consent of each Purchaser, with respect to any such press release of the Company, which consent shall not
unreasonably be withheld or delayed, except if such disclosure is required by law, in which case the disclosing party shall promptly
provide the other party with prior notice of such public statement or communication. Notwithstanding the foregoing,
the Company shall not publicly disclose the name of any Purchaser, or include the name of any Purchaser in any filing with the
Commission or any regulatory agency or Trading Market, without the prior written consent of such Purchaser, except (a) as required
by federal securities law in connection with the filing of final Transaction Documents with the Commission and (b) to the extent
such disclosure is required by law or Trading Market regulations, in which case the Company shall provide the Purchasers with
prior notice of such disclosure permitted under this clause (b).
4.5 Shareholder Rights Plan. No claim will be made or enforced by the Company or, with the consent of the Company,
any other Person, that any Purchaser is an “Acquiring Person” under any control share acquisition, business
combination, poison pill (including any distribution under a rights agreement) or similar anti-takeover plan or arrangement in
effect or hereafter adopted by the Company, or that any Purchaser could be deemed to trigger the provisions of any such plan or
arrangement, by virtue of receiving Securities under the Transaction Documents or under any other agreement between the Company
and the Purchasers.
4.6 Non-Public Information. Except with respect to the material terms and conditions of the transactions contemplated
by the Transaction Documents, which shall be disclosed pursuant to Section 4.4, the Company covenants and agrees that neither
it, nor any other Person acting on its behalf will provide any Purchaser or its Agent or counsel with any information that constitutes,
or the Company reasonably believes constitutes, material non-public information, unless prior thereto such Purchaser shall have
consented to the receipt of such information and agreed with the Company to keep such information confidential. The
Company understands and confirms that each Purchaser shall be relying on the foregoing covenant in effecting transactions in securities
of the Company. To the extent that the Company, any of its Subsidiaries, or any of their respective officers, directors,
Agent, employees or Affiliates delivers any material, non-public information to a Purchaser without such Purchaser’s consent,
the Company hereby covenants and agrees that such Purchaser shall not have any duty of confidentiality to the Company, any of
its Subsidiaries, or any of their respective officers, directors, Agent, employees or Affiliates, or a duty to the Company, any
of its Subsidiaries or any of their respective officers, directors, Agent, employees or Affiliates not to trade on the basis of,
such material, non-public information, provided that the Purchaser shall remain subject to applicable law. To the extent that
any notice provided pursuant to any Transaction Document constitutes, or contains, material, non-public information regarding
the Company or any Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Current Report
on Form 8-K. The Company understands and confirms that each Purchaser shall be relying on the foregoing covenant in
effecting transactions in securities of the Company.
4.7 Use of Proceeds. Except as set forth on Schedule 4.7 attached hereto, the Company
shall use the net proceeds from the sale of the Securities hereunder for working capital and general corporate purposes, including the
preparation of a new drug application relating to the Company’s Tonmya product candidate in patients with fibromyalgia and the satisfaction
of any portion of its existing indebtedness, and shall not use such proceeds: (a)for the redemption of any Common Stock or Common Stock
Equivalents, (b) for the settlement of any outstanding litigation or (c) in violation of FCPA or OFAC regulations.
4.8 Indemnification of Purchasers. Subject to the provisions of this Section 4.8, the Company will indemnify and
hold each Purchaser and its directors, officers, shareholders, members, partners, employees and Agent (and any other Persons with
a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title), each
Person who controls such Purchaser (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act),
and the directors, officers, shareholders, Agent, 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, 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 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 and the Company shall continue to reserve
and keep available at all times, free of preemptive rights, a sufficient number of shares of Common Stock for the purpose of enabling
the Company to issue Shares pursuant to this Agreement and Warrant Shares pursuant to any exercise of the Warrants.
4.10 Listing of Common Stock. The Company hereby agrees to use commercially reasonable 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 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 Reserved.
4.12 Participation in Future Financings. Each Purchaser that purchases five hundred thousand dollars ($500,000)
or more of Common Stock and/or Pre-Funded Warrants shall have the right but not the obligation to participate in each financing completed
by the Company during the 45 day period following the closing of this Offering involving the issuance by the Company of Common Stock or
Common Stock Equivalents, excluding a PIPE Transaction as defined in Section 3.1(NN) (the “Subsequent Financing”), on the
same terms, conditions and price provided to third parties in the Subsequent Financing, and in an amount determined in the sole discretion
of such Purchaser equal to or less than the dollar amount of Securities purchased by such Purchaser pursuant to this Agreement; provided
however that if the amount of securities that all such Purchasers seek to purchase in a Subsequent Financing exceeds the aggregate amount
offered then such Purchasers shall be permitted to participate in the Subsequent Financing pro rata based on their relative participation
in the offering governed by this Agreement. For example and for the avoidance of doubt, if Purchaser A and Purchaser B each purchase $500,000
of Securities pursuant to this Agreement and Purchaser C invests $1,000,000 of Securities pursuant to this Agreement, then in the Subsequent
Financing having an offering amount of less than $2,000,000, Purchaser A and Purchaser B each would have the right to purchase 25% of
the securities offered in such Subsequent Financing and Purchaser C would have the right to purchase 50% of the securities offered in
such Subsequent Financing.
4.13 Equal Treatment of Purchasers. No consideration (including any modification of any Transaction Document)
shall be offered or paid to any Person to amend or consent to a waiver or modification of any provision of the Transaction Documents
unless the same consideration is also offered to all of the parties to the Transaction Documents. For clarification
purposes, this provision constitutes a separate right granted to each Purchaser by the Company and negotiated separately by each
Purchaser, and is intended for the Company to treat the Purchasers as a class and shall not in any way be construed as the Purchasers
acting in concert or as a group with respect to the purchase, disposition or voting of Securities or otherwise.
4.14 Certain Transactions and Confidentiality. Each Purchaser, severally and not jointly with the other Purchasers, covenants
that neither it, nor any Affiliate acting on its behalf or pursuant to any understanding with it will execute any purchases or
sales, including Short Sales, of any of the Company’s securities during the period commencing with the execution of this
Agreement and ending at such time that the transactions contemplated by this Agreement are first publicly announced pursuant to
the initial press release as described in Section 4.4. Each Purchaser, severally and not jointly with the other Purchasers, covenants
that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company pursuant to the
initial press release as described in Section 4.4, such Purchaser will maintain the confidentiality of the existence and terms
of this transaction and the information included in the Disclosure Schedules. Notwithstanding the foregoing and notwithstanding
anything contained in this Agreement to the contrary, the Company expressly acknowledges and agrees that (i) no Purchaser makes
any representation, warranty or covenant hereby that it will not engage in effecting transactions in any securities of the Company
after the time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press
release as described in Section 4.4, (ii) no Purchaser shall be restricted or prohibited from effecting any transactions in any
securities of the Company in accordance with applicable securities laws from and after the time that the transactions contemplated
by this Agreement are first publicly announced pursuant to the initial press release as described in Section 4.4 and (iii) no
Purchaser shall have any duty of confidentiality or duty not to trade in the securities of the Company to the Company or its Subsidiaries
after the issuance of the initial press release as described in Section 4.4. Notwithstanding the foregoing, in the case of a Purchaser
that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s
assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing
other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of
assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.
4.15 Reserved.
4.16 Reserved.
4.17 Acknowledgment of Dilution. The Company acknowledges that the issuance of the Securities may result in dilution
of the outstanding shares of Common Stock, which dilution may be substantial under certain market conditions. The Company
further acknowledges that its obligations under the Transaction Documents, including, without limitation, its obligation to issue
the Shares and Warrant Shares pursuant to the Transaction Documents, are unconditional and absolute and not subject to any right
of set off, counterclaim, delay or reduction, regardless of the effect of any such dilution or any claim the Company may have
against any Purchaser and regardless of the dilutive effect that such issuance may have on the ownership of the other stockholders
of the Company.
4.18 Exercise Procedures. The form of Notice of Exercise included in the Warrants set forth the totality of the procedures
required of the Purchasers in order to exercise the Warrants. No additional legal opinion, other information or
instructions shall be required of the Purchasers to exercise their Warrants. Without limiting the preceding sentences,
no ink-original Notice of Exercise shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization)
of any Notice of Exercise form be required in order to exercise the Warrants. The Company shall honor exercises of
the Warrants and shall deliver Warrant Shares in accordance with the terms, conditions and time periods set forth in the Transaction
Documents.
4.19 Lock-Up Agreements. The Company shall not amend, modify, waive or terminate any provision of any of the Lock-Up Agreements
except to extend the term of the lock-up period and shall enforce the provisions of each Lock-Up Agreement in accordance with
its terms. If any party to a Lock-Up Agreement breaches any provision of a Lock-Up Agreement, the Company shall promptly use its
best efforts to seek specific performance of the terms of such Lock-Up Agreement.
4.20 Reserved.
ARTICLE
V
MISCELLANEOUS
5.1 Termination. This Agreement may be terminated by any Purchaser, as to such Purchaser’s obligations hereunder
only and without any effect whatsoever on the obligations between the Company and the other Purchasers, by written notice to the
other parties, if the Closing has not been consummated on or before the fifth (5th) Trading Day following the date
hereof; provided , however , that no such termination will affect the right of any party to sue for any breach by
any other party (or parties).
5.2 Fees and Expenses. Except as expressly set forth in the Transaction Documents to the contrary, each party shall
pay the fees and expenses of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by
such party incident to the negotiation, preparation, execution, delivery and performance of this Agreement. The Company
shall pay all Transfer Agent fees (including, without limitation, any fees required for same-day processing of any instruction
letter delivered by the Company and any exercise notice delivered by a Purchaser), stamp taxes and other taxes and duties levied
in connection with the delivery of any Securities to the Purchasers.
5.3 Entire Agreement. The Transaction Documents, together with the exhibits and schedules thereto, the Prospectus
and the Prospectus Supplement, contain the entire understanding of the parties with respect to the subject matter hereof and thereof
and supersede all prior agreements and understandings, oral or written, with respect to such matters, which the parties acknowledge
have been merged into such documents, exhibits and schedules.
5.4 Notices. Any and all notices or other communications or deliveries required or permitted to be provided hereunder
shall be in writing and shall be deemed given and effective on the earliest of: (a) the time of transmission, if such notice or
communication is delivered via facsimile at the facsimile number or email attachment at the email address as set forth on the
signature pages attached hereto at or prior to 5:30 p.m. (New York City time) on a Trading Day, (b) the next Trading Day after
the time of transmission, if such notice or communication is delivered via facsimile at the facsimile number or email attachment
at the email address as set forth on the signature pages attached hereto on a day that is not a Trading Day or later than 5:30
p.m. (New York City time) on any Trading Day, (c) the second (2nd) Trading Day following the date of mailing, if sent
by U.S. nationally recognized overnight courier service or (d) upon actual receipt by the party to whom such notice is required
to be given. The address for such notices and communications shall be as set forth on the signature pages attached
hereto.
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 Purchasers which purchased at least 50.1% in interest
of the Shares based on the initial Subscription Amounts hereunder (or, prior to the Closing, the Company and each Purchaser) or,
in the case of a waiver, by the party against whom enforcement of any such waived provision is sought, provided that if any amendment,
modification or waiver disproportionately and adversely impacts a Purchaser (or group of Purchasers), the consent of such disproportionately
impacted Purchaser (or group of Purchasers) shall also be required. No waiver of any default with respect to any
provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any
subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of any
party to exercise any right hereunder in any manner impair the exercise of any such right. Any proposed amendment or waiver that
disproportionately, materially and adversely affects the rights and obligations of any Purchaser relative to the comparable rights
and obligations of the other Purchasers shall require the prior written consent of such adversely affected Purchaser. Any amendment
effected in accordance with this Section 5.5 shall be binding upon each Purchaser and holder of Securities and the Company.
5.6 Headings. The headings herein are for convenience only, do not constitute a part of this Agreement and shall
not be deemed to limit or affect any of the provisions hereof.
5.7 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their
successors and permitted assigns. The Company may not assign this Agreement or any rights or obligations hereunder
without the prior written consent of each Purchaser (other than by merger). Any Purchaser may assign any or all of
its rights under this Agreement to any Person to whom such Purchaser assigns or transfers any Securities, provided that such transferee
agrees in writing to be bound, with respect to the transferred Securities, by the provisions of the Transaction Documents that
apply to the “Purchasers.”
5.8 No Third-Party Beneficiaries. The Placement Agent shall be the third party beneficiaries of the representations
and warranties of the Company in Section 3.1 and the representations and warranties of the Purchasers in Section 3.2. This
Agreement is intended for the benefit of the parties hereto and their respective successors and permitted assigns and is not for
the benefit of, nor may any provision hereof be enforced by, any other Person, except as otherwise set forth in Section 4.8 and
this Section 5.8.
5.9 Governing Law. All questions concerning the construction, validity, enforcement and interpretation of the Transaction
Documents shall be governed by and construed and enforced in accordance with the internal laws of the State of New York, without
regard to the principles of conflicts of law thereof. Each party agrees that all legal Proceedings concerning the interpretations,
enforcement and defense of the transactions contemplated by this Agreement and any other Transaction Documents (whether brought
against a party hereto or its respective affiliates, directors, officers, shareholders, partners, members, employees or Agent)
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 facsimile transmission or by e-mail delivery of a “.pdf” format data file, such signature
shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same
force and effect as if such facsimile or “.pdf” signature page were an original thereof.
5.12 Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions
set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their commercially reasonable efforts to find and employ an alternative means to achieve the same or substantially
the same result as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared to
be the intention of the parties that they would have executed the remaining terms, provisions, covenants and restrictions without
including any of such that may be hereafter declared invalid, illegal, void or unenforceable.
5.13 Rescission and Withdrawal Right. Notwithstanding anything to the contrary contained in (and without limiting
any similar provisions of) any of the other Transaction Documents, whenever any Purchaser exercises a right, election, demand
or option under a Transaction Document and the Company does not timely perform its related obligations within the periods therein
provided, then such Purchaser may rescind or withdraw, in its sole discretion from time to time upon written notice to the Company,
any relevant notice, demand or election in whole or in part without prejudice to its future actions and rights; provided,
however, that, in the case of a rescission of an exercise of a Warrant, the applicable Purchaser shall be required to return
any shares of Common Stock subject to any such rescinded exercise notice concurrently with the return to such Purchaser of the
aggregate exercise price paid to the Company for such shares and the restoration of such Purchaser’s right to acquire such
shares pursuant to such Purchaser’s Warrant (including, issuance of a replacement warrant certificate evidencing such restored
right).
5.14 Replacement of Securities. If any certificate or instrument evidencing any Securities is mutilated, lost, stolen
or destroyed, the Company shall issue or cause to be issued in exchange and substitution for and upon cancellation thereof (in
the case of mutilation), or in lieu of and substitution therefor, a new certificate or instrument, but only upon receipt of evidence
reasonably satisfactory to the Company of such loss, theft or destruction. The applicant for a new certificate or instrument
under such circumstances shall also pay any reasonable third-party costs (including customary indemnity) associated with the issuance
of such replacement Securities.
5.15 Remedies. In addition to being entitled to exercise all rights provided herein or granted by law, including
recovery of damages, each of the Purchasers and the Company will be entitled to specific performance under the Transaction Documents. The
parties agree that monetary damages may not be adequate compensation for any loss incurred by reason of any breach of obligations
contained in the Transaction Documents and hereby agree to waive and not to assert in any Action for specific performance of any
such obligation the defense that a remedy at law would be adequate.
5.16 Payment Set Aside. To the extent that the Company makes a payment or payments to any Purchaser pursuant to any
Transaction Document or a Purchaser enforces or exercises its rights thereunder, and such payment or payments or the proceeds
of such enforcement or exercise or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set
aside, recovered from, disgorged by or are required to be refunded, repaid or otherwise restored to the Company, a trustee, receiver
or any other Person under any law (including, without limitation, any bankruptcy law, state or federal law, common law or equitable
cause of action), then to the extent of any such restoration the obligation or part thereof originally intended to be satisfied
shall be revived and continued in full force and effect as if such payment had not been made or such enforcement or setoff had
not occurred.
5.17 Independent Nature of Purchasers’ Obligations and Rights. The obligations of each Purchaser under any
Transaction Document are several and not joint with the obligations of any other Purchaser, and no Purchaser shall be responsible
in any way for the performance or non-performance of the obligations of any other Purchaser under any Transaction Document. Nothing
contained herein or in any other Transaction Document, and no action taken by any Purchaser pursuant hereto or thereto, shall
be deemed to constitute the Purchasers as a partnership, an association, a joint venture or any other kind of entity, or create
a presumption that the Purchasers are in any way acting in concert or as a group with respect to such obligations or the transactions
contemplated by the Transaction Documents. Each Purchaser shall be entitled to independently protect and enforce its
rights including, without limitation, the rights arising out of this Agreement or out of the other Transaction Documents, and
it shall not be necessary for any other Purchaser to be joined as an additional party in any Proceeding for such purpose. Each
Purchaser has been represented by its own separate legal counsel in its review and negotiation of the Transaction Documents. The
Company has elected to provide all Purchasers with the same terms and Transaction Documents for the convenience of the Company
and not because it was required or requested to do so by any of the Purchasers. It is expressly understood and agreed that each
provision contained in this Agreement and in each other Transaction Document is between the Company and a Purchaser, solely, and
not between the Company and the Purchasers collectively and not between and among the Purchasers.
5.18 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.
|
|
Tonix
Pharmaceuticals Holding Corp.
By:__________________________________
Name:
Title:
|
Address
for Notice:
Tonix
Pharmaceuticals Holding Corp.
[__________]
[___________]
Attention:
Email:
Fax: |
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE
PAGE FOR PURCHASER FOLLOWS]
[PURCHASER
SIGNATURE PAGES TO
TONIX
PHARMACEUTICALS HOLDING CORP. SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
Name
of Purchaser: ________________________________________________________
Signature
of Authorized Signatory of Purchaser: __________________________________
Name
of Authorized Signatory: ____________________________________________________
Title
of Authorized Signatory: _____________________________________________________
Email
Address of Authorized Signatory: ______________________________________________
Address
for Notice to Purchaser:
Address
for Delivery of Securities to Purchaser (if not same as address for notice):
Subscription
Amount: $_________________
Shares:
_________________
Pre-Funded
Warrant Shares: ______________
Beneficial
Ownership Blocker ☐ 4.99% or ☐ 9.99%
EIN
Number: _______________________
[SIGNATURE
PAGES CONTINUE]
FORM
OF LOCK-UP AGREEMENT
See
attached.
TONIX PHARMACEUTICALS HOLDING CORP. 8-K
Exhibit 99.01
Tonix
Pharmaceuticals Announces Proposed Public Offering
CHATHAM,
N.J., July 8, 2024 (GLOBE NEWSWIRE) -- Tonix Pharmaceuticals Holding Corp. (Nasdaq: TNXP) (“Tonix” or the “Company”),
a fully-integrated biopharmaceutical company, today announced that it intends to offer and sell shares of its common stock (or pre-funded
warrants in lieu thereof). All of the securities to be sold in the offering are to be offered by Tonix. The offering is subject to market
conditions, and there can be no assurance as to whether or when the offering may be completed, or as to the actual size or terms of the
offering.
The
Company intends to use the net proceeds from the offering for working capital and general corporate purposes, including the preparation
of the new drug application relating to its Tonmya™ product candidate in patients with fibromyalgia, and the satisfaction of any
portion of its existing indebtedness.
Dawson
James Securities, Inc. is the sole placement agent for the offering.
This
offering is being made pursuant to an effective shelf registration statement on Form S-3 (File No. 333-266982) previously filed with
the U.S. Securities and Exchange Commission (the “SEC”). The offering will be made only by means of a prospectus supplement
and accompanying prospectus. The preliminary prospectus supplement and accompanying prospectus describing the terms of the proposed offering
will be filed with the SEC and will be available on the SEC’s website located at http://www.sec.gov. Electronic copies of the preliminary
prospectus supplement may be obtained, when available, from Dawson James Securities, Inc., 101 North Federal Highway, Suite 600, Boca
Raton, FL 33432 or by telephone at (561) 391-5555, or by email at investmentbanking@dawsonjames.com. Before investing in this offering,
interested parties should read in their entirety the prospectus supplement and the accompanying prospectus and the other documents that
Tonix has filed with the SEC that are incorporated by reference in such prospectus supplement and the accompanying prospectus, which
provide more information about Tonix and such offering.
This
press release shall not constitute an offer to sell or the solicitation of an offer to buy nor shall there be any sale of these securities
in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under
the securities laws of any such state or jurisdiction.
Tonix
Pharmaceuticals Holding Corp.*
Tonix
is a fully-integrated biopharmaceutical company focused on developing, licensing and commercializing therapeutics to treat and prevent
human disease and alleviate suffering. Tonix’s development portfolio is focused on central nervous system (CNS) disorders. Tonix’s
priority is to submit a New Drug Application (NDA) to the FDA in the second half of 2024 for Tonmya1, a product candidate
for which two statistically significant Phase 3 studies have been completed for the management of fibromyalgia. TNX-102 SL is also being
developed to treat acute stress reaction as well as fibromyalgia-type Long COVID. Tonix’s CNS portfolio includes TNX-1300 (cocaine
esterase), a biologic designed to treat cocaine intoxication that has Breakthrough Therapy designation. Tonix’s immunology development
portfolio consists of biologics to address organ transplant rejection, autoimmunity and cancer, including TNX-1500, which is a humanized
monoclonal antibody targeting CD40-ligand (CD40L or CD154) being developed for the prevention of allograft rejection and for the treatment
of autoimmune diseases. Tonix also has product candidates in development in the areas of rare disease and infectious disease. Tonix Medicines,
our commercial subsidiary, markets Zembrace® SymTouch® (sumatriptan injection) 3 mg and Tosymra® (sumatriptan nasal spray)
10 mg for the treatment of acute migraine with or without aura in adults.
*Tonix’s
product development candidates are investigational new drugs or biologics and have not been approved for any indication.
1Tonmya™
is conditionally accepted by the U.S. Food and Drug Administration (FDA) as the tradename for TNX-102 SL for the management of fibromyalgia.
Tonmya has not been approved for any indication.
Zembrace
SymTouch and Tosymra are registered trademarks of Tonix Medicines. All other marks are property of their respective owners.
This
press release and further information about Tonix can be found at www.tonixpharma.com.
Forward
Looking Statements
Certain
statements in this press release are forward-looking within the meaning of the Private Securities Litigation Reform Act of 1995. These
statements may be identified by the use of forward-looking words such as “anticipate,” “believe,” “forecast,”
“estimate,” “expect,” and “intend,” among others. These forward-looking statements are based on Tonix’s
current expectations and actual results could differ materially. There are a number of factors that could cause actual events to differ
materially from those indicated by such forward-looking statements. These factors include, but are not limited to, risks related to the
failure to obtain FDA clearances or approvals and noncompliance with FDA regulations; risks related to the failure to successfully market
any of our products; risks related to the timing and progress of clinical development of our product candidates; our need for additional
financing; uncertainties of patent protection and litigation; uncertainties of government or third party payor reimbursement; limited
research and development efforts and dependence upon third parties; and substantial competition. As with any pharmaceutical under development,
there are significant risks in the development, regulatory approval and commercialization of new products. Tonix does not undertake an
obligation to update or revise any forward-looking statement. Investors should read the risk factors set forth in the Annual Report on
Form 10-K for the year ended December 31, 2023, as filed with the Securities and Exchange Commission (the “SEC”) on April
1, 2024, and periodic reports filed with the SEC on or after the date thereof. All of Tonix’s forward-looking statements are expressly
qualified by all such risk factors and other cautionary statements. The information set forth herein speaks only as of the date thereof.
Investor
Contact
Jessica
Morris
Tonix
Pharmaceuticals
investor.relations@tonixpharma.com
(862)
904-8182
Peter
Vozzo
ICR
Westwicke
peter.vozzo@westwicke.com
(443)
213-0505
Media
Contact
Katie
Dodge
LaVoieHealthScience
kdodge@lavoiehealthscience.com
(978)
360-3151
TONIX PHARMACEUTICALS HOLDING CORP. 8-K
Exhibit 99.02
Tonix
Pharmaceuticals Announces Pricing of Approximately $4.0 Million Public Offering
CHATHAM, N.J., July 9, 2024
(GLOBE NEWSWIRE) -- Tonix Pharmaceuticals Holding Corp. (Nasdaq: TNXP) (“Tonix” or the “Company”), a fully-integrated
biopharmaceutical company, today announced it has entered into a placement agency agreement for the purchase and sale of 7,096,740 shares
of its common stock (or pre-funded warrants in lieu thereof) at an offering price of $0.57 per share (or $0.569 per pre-funded warrant
in lieu thereof). The closing of the public offering is expected to take place on or about July 10, 2024, subject to the satisfaction
of customary closing conditions.
The
gross proceeds of the offering will be approximately $4.0 million before deducting placement agent fees and other estimated offering
expenses payable by the Company. The Company intends to use the net proceeds from the offering for working capital and general corporate
purposes, including the preparation of the new drug application relating to its Tonmya™ product candidate in patients with fibromyalgia,
and the satisfaction of any portion of its existing indebtedness.
Dawson
James Securities, Inc. is acting as the sole placement agent for the offering.
This
offering is being made pursuant to an effective shelf registration statement on Form S-3 (File No. 333-266982) previously filed with
the U.S. Securities and Exchange Commission (the “SEC”). The offering will be made only by means of a prospectus supplement
and accompanying base prospectus, as may be further supplemented by any free writing prospectus and/or pricing supplement that Tonix
may file with the SEC. A preliminary prospectus supplement and accompanying prospectus describing the terms of the proposed offering
have been filed with the SEC and are available on the SEC’s website located at http://www.sec.gov. Electronic copies of the preliminary
prospectus supplement may be obtained from Dawson James Securities, Inc., 101 North Federal Highway, Suite 600, Boca Raton, FL 33432
or by telephone at (561) 391-5555, or by email at investmentbanking@dawsonjames.com. Before investing in this offering, interested parties
should read in their entirety the prospectus supplement and the accompanying prospectus and the other documents that Tonix has filed
with the SEC that are incorporated by reference in such prospectus supplement and the accompanying prospectus, which provide more information
about Tonix and such offering.
This
press release shall not constitute an offer to sell or the solicitation of an offer to buy nor shall there be any sale of these securities
in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under
the securities laws of any such state or jurisdiction.
Tonix
Pharmaceuticals Holding Corp.*
Tonix
is a fully-integrated biopharmaceutical company focused on developing, licensing and commercializing therapeutics to treat and prevent
human disease and alleviate suffering. Tonix’s development portfolio is focused on central nervous system (CNS) disorders. Tonix’s
priority is to submit a New Drug Application (NDA) to the FDA in the second half of 2024 for Tonmya1, a product candidate for which two
statistically significant Phase 3 studies have been completed for the management of fibromyalgia. TNX-102 SL is also being developed
to treat acute stress reaction as well as fibromyalgia-type Long COVID. Tonix’s CNS portfolio includes TNX-1300 (cocaine esterase),
a biologic designed to treat cocaine intoxication that has Breakthrough Therapy designation. Tonix’s immunology development portfolio
consists of biologics to address organ transplant rejection, autoimmunity and cancer, including TNX-1500, which is a humanized monoclonal
antibody targeting CD40-ligand (CD40L or CD154) being developed for the prevention of allograft rejection and for the treatment of autoimmune
diseases. Tonix also has product candidates in development in the areas of rare disease and infectious disease. Tonix Medicines, our
commercial subsidiary, markets Zembrace® SymTouch® (sumatriptan injection) 3 mg and Tosymra® (sumatriptan nasal spray) 10
mg for the treatment of acute migraine with or without aura in adults.
*Tonix’s
product development candidates are investigational new drugs or biologics and have not been approved for any indication.
1Tonmya™
is conditionally accepted by the U.S. Food and Drug Administration (FDA) as the tradename for TNX-102 SL for the management of fibromyalgia.
Tonmya has not been approved for any indication.
Zembrace
SymTouch and Tosymra are registered trademarks of Tonix Medicines. All other marks are property of their respective owners.
This
press release and further information about Tonix can be found at www.tonixpharma.com.
Forward
Looking Statements
Certain
statements in this press release are forward-looking within the meaning of the Private Securities Litigation Reform Act of 1995 including
those relating to the completion of the public offering, the satisfaction of customary closing conditions, the intended use of proceeds
from the public offering and other statements that are predictive in nature. These statements may be identified by the use of forward-looking
words such as “anticipate,” “believe,” “forecast,” “estimate,” “expect,”
and “intend,” among others. These forward-looking statements are based on Tonix's current expectations and actual results
could differ materially. There are a number of factors that could cause actual events to differ materially from those indicated by such
forward-looking statements. These factors include, but are not limited to, risks related to the failure to obtain FDA clearances or approvals
and noncompliance with FDA regulations; risks related to the failure to successfully market any of our products; risks related to the
timing and progress of clinical development of our product candidates; our need for additional financing; uncertainties of patent protection
and litigation; uncertainties of government or third party payor reimbursement; limited research and development efforts and dependence
upon third parties; and substantial competition. As with any pharmaceutical under development, there are significant risks in the development,
regulatory approval and commercialization of new products. Tonix does not undertake an obligation to update or revise any forward-looking
statement. Investors should read the risk factors set forth in the Annual Report on Form 10-K for the year ended December 31, 2023, as
filed with the Securities and Exchange Commission (the “SEC”) on April 1, 2024, and periodic reports filed with the SEC on
or after the date thereof. All of Tonix's forward-looking statements are expressly qualified by all such risk factors and other cautionary
statements. The information set forth herein speaks only as of the date thereof.
Investor
Contact
Jessica
Morris
Tonix
Pharmaceuticals
investor.relations@tonixpharma.com
(862)
904-8182
Peter
Vozzo
ICR
Westwicke
peter.vozzo@westwicke.com
(443)
213-0505
Media
Contact
Katie
Dodge
LaVoieHealthScience
kdodge@lavoiehealthscience.com
(978)
360-3151
TONIX PHARMACEUTICALS HOLDING CORP. 8-K
Exhibit 99.03
Tonix Pharmaceuticals Announces Closing
of $4.0 Million Public Offering
CHATHAM, N.J., July 10, 2024 (GLOBE NEWSWIRE)
-- Tonix Pharmaceuticals Holding Corp. (Nasdaq: TNXP) (“Tonix” or the “Company”), a fully-integrated biopharmaceutical
company, today announced the closing of its public offering of 3,393,600 shares of its common stock and pre-funded warrants to purchase
up to 3,703,140 shares of common stock in a public offering at an offering price of $0.57 per share of common stock and $0.569 per pre-funded
warrant. The warrants have an exercise price of $0.001 per share and became exercisable upon issuance.
The gross proceeds of the offering are
$4.0 million before deducting placement agent fees and other estimated offering expenses payable by the Company. The Company intends to
use the net proceeds from the offering for working capital and general corporate purposes, including the preparation of the new drug application
relating to its Tonmya™ product candidate in patients with fibromyalgia, and the satisfaction of any portion of its existing indebtedness.
Dawson James Securities, Inc. acted as
the sole placement agent for the offering.
Lowenstein Sandler, New York, NY, represented
the Company in connection with the offering, and ArentFox Schiff LLP, Washington, DC, represented the placement agent.
This offering was made pursuant to an effective
shelf registration statement on Form S-3 (File No. 333-266982) previously filed with the U.S. Securities and Exchange Commission (the
“SEC”). The offering was made only by means of a prospectus supplement and accompanying prospectus. A final prospectus supplement
and accompanying prospectus describing the terms of the proposed offering were filed with the SEC and are available on the SEC’s
website located at http://www.sec.gov. Electronic copies of the preliminary prospectus supplement may be obtained from Dawson James Securities,
Inc., 101 North Federal Highway, Suite 600, Boca Raton, FL 33432 or by telephone at (561) 391-5555, or by email at investmentbanking@dawsonjames.com.
This press release shall not constitute
an offer to sell or the solicitation of an offer to buy nor shall there be any sale of these securities in any state or jurisdiction in
which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such
state or jurisdiction.
Tonix Pharmaceuticals Holding Corp.*
Tonix is a fully-integrated biopharmaceutical company focused on developing, licensing and commercializing therapeutics to treat and
prevent human disease and alleviate suffering. Tonix’s development portfolio is focused on central nervous system (CNS) disorders.
Tonix’s priority is to submit a New Drug Application (NDA) to the FDA in the second half of 2024 for Tonmya1, a product
candidate for which two statistically significant Phase 3 studies have been completed for the management of fibromyalgia. TNX-102 SL
is also being developed to treat acute stress reaction as well as fibromyalgia-type Long COVID. Tonix’s CNS portfolio includes
TNX-1300 (cocaine esterase), a biologic designed to treat cocaine intoxication that has Breakthrough Therapy designation. Tonix’s
immunology development portfolio consists of biologics to address organ transplant rejection, autoimmunity and cancer, including TNX-1500,
which is a humanized monoclonal antibody targeting CD40-ligand (CD40L or CD154) being developed for the prevention of allograft rejection
and for the treatment of autoimmune diseases. Tonix also has product candidates in development in the areas of rare disease and infectious
disease. Tonix Medicines, our commercial subsidiary, markets Zembrace® SymTouch® (sumatriptan injection) 3 mg and Tosymra®
(sumatriptan nasal spray) 10 mg for the treatment of acute migraine with or without aura in adults.
*Tonix’s product development candidates are investigational new drugs or biologics and have not been approved for any indication.
1Tonmya™ is conditionally accepted
by the U.S. Food and Drug Administration (FDA) as the tradename for TNX-102 SL for the management of fibromyalgia. Tonmya has not been
approved for any indication.
Zembrace SymTouch and Tosymra are registered trademarks of Tonix Medicines. All other marks are property of their respective owners.
This press release and further information
about Tonix can be found at www.tonixpharma.com.
Forward Looking Statements
Certain statements in this press release are forward-looking within the meaning of the Private Securities Litigation Reform Act of 1995
including those relating to the intended use of proceeds from the public offering and other statements that are predictive in nature.
These statements may be identified by the use of forward-looking words such as “anticipate,” “believe,” “forecast,”
“estimate,” “expect,” and “intend,” among others. These forward-looking statements are based on Tonix's
current expectations and actual results could differ materially. There are a number of factors that could cause actual events to differ
materially from those indicated by such forward-looking statements. These factors include, but are not limited to, risks related to the
failure to obtain FDA clearances or approvals and noncompliance with FDA regulations; risks related to the failure to successfully market
any of our products; risks related to the timing and progress of clinical development of our product candidates; our need for additional
financing; uncertainties of patent protection and litigation; uncertainties of government or third party payor reimbursement; limited
research and development efforts and dependence upon third parties; and substantial competition. As with any pharmaceutical under development,
there are significant risks in the development, regulatory approval and commercialization of new products. Tonix does not undertake an
obligation to update or revise any forward-looking statement. Investors should read the risk factors set forth in the Annual Report on
Form 10-K for the year ended December 31, 2023, as filed with the Securities and Exchange Commission (the “SEC”) on April
1, 2024, and periodic reports filed with the SEC on or after the date thereof. All of Tonix's forward-looking statements are expressly
qualified by all such risk factors and other cautionary statements. The information set forth herein speaks only as of the date thereof.
Investor Contact
Jessica Morris
Tonix Pharmaceuticals
investor.relations@tonixpharma.com
(862) 904-8182
Peter Vozzo
ICR Westwicke
peter.vozzo@westwicke.com
(443) 213-0505
Media Contact
Katie Dodge
LaVoieHealthScience
kdodge@lavoiehealthscience.com
(978) 360-3151
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