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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 30, 2024
TONIX PHARMACEUTICALS HOLDING CORP.
(Exact name of registrant as specified in its charter)
Nevada |
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001-36019 |
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26-1434750 |
(State or Other Jurisdiction of Incorporation) |
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(Commission File Number) |
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(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 |
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Trading Symbol(s) |
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Name of each exchange on which registered |
Common Stock |
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TNXP |
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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. ☐
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Item 1.01. |
Entry into a Material Definitive Agreement. |
On July 30, 2024, Tonix Pharmaceuticals Holding
Corp. (the “Company”) entered into a Sales Agreement (the “Sales Agreement”) with A.G.P./Alliance Global Partners
(“A.G.P,”), as sales agent, pursuant to which the Company may offer and sell, from time to time, through A.G.P., up to $50.0
million of shares of its common stock, par value $0.001 per share (the “Common Stock”).
The Company is not obligated to sell any shares under
the Sales Agreement. Subject to the terms and conditions of the Sales Agreement, A.G.P. will use commercially reasonable efforts consistent
with its normal trading and sales practices, applicable state and federal law, rules and regulations and the rules of The Nasdaq Capital
Market (“Nasdaq”) to sell shares from time to time based upon the Company’s instructions, including any price, time
or size limits specified by the Company. Upon delivery of a placement notice, and subject to the Company’s instructions in that
notice, and the terms and conditions of the Sales Agreement generally, A.G.P. may sell the Common Stock by any method permitted by law
deemed to be an “at the market offering” as defined by Rule 415(a)(4) promulgated under the Securities Act of 1933, as amended.
A.G.P.’s obligations to sell shares under the Sales Agreement are subject to satisfaction of certain conditions, including customary
closing conditions.
The Company will pay A.G.P. a commission of 3.0% of
the aggregate gross proceeds from each sale of shares and has agreed to provide A.G.P. with customary indemnification and contribution
rights. The Company has also agreed to reimburse A.G.P. for certain specified expenses.
Thee shares of Common Stock will be offered and sold
pursuant to the Company’s effective shelf registration statement on Form S-3 (File No. 333-266982) (the “Registration Statement”)
filed by the Company with the U.S. Securities and Exchange Commission (the “SEC”) on August 19, 2022, and declared effective
by the SEC on August 26, 2022, and the accompanying base prospectus included therein, as supplemented by the prospectus supplement, dated
July 30, 2024, filed with the SEC.
The foregoing summary of the Sales Agreement does
not purport to be complete and is qualified in its entirety by reference to the full text of the Sales Agreement, which is attached as
an exhibit to the Registration Statement and incorporated by reference into this Item 1.01.
A copy of the legal opinion and consent of Brownstein
Hyatt Farber Schreck, LLP relating to the shares of Common Stock being offered and sold pursuant to the Sales Agreement is attached hereto
as Exhibit 5.01.
This Current Report on Form 8-K shall not constitute
an offer to sell or the solicitation of an offer to buy any shares under the Sales Agreement, nor shall there be any sale of such shares
in any state in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws
of any such state.
Item 9.01 |
Financial Statements and Exhibits. |
(d) |
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Exhibit No. |
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Description |
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1.01 |
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Sales Agreement, dated July 30, 2024, by and between Tonix Pharmaceuticals Holdings Corp. and A.G.P./Alliance Global Partners |
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5.01 |
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Opinion of Brownstein Hyatt Farber Schreck, LLP |
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23.01 |
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Consent of Brownstein Hyatt Farber Schreck, LLP (contained in Exhibit 5.01) |
|
|
104 |
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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.
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TONIX PHARMACEUTICALS HOLDING CORP. |
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Date: July 30, 2024 |
By: |
/s/ Bradley Saenger |
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Bradley Saenger |
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Chief Financial Officer |
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Tonix Pharmaceuticals Holding Corp. 8-K
Exhibit 1.01
Tonix
Pharmaceuticals Holding Corp.
COMMON
STOCK
SALES
AGREEMENT
July
30, 2024
A.G.P./Alliance
Global Partners
590
Madison Avenue, 28th Floor
New
York, NY 10022
Ladies
and Gentlemen:
Tonix
Pharmaceuticals Holding Corp., a Nevada corporation (the “Company”), confirms its agreement (this “Agreement”)
with A.G.P./Alliance Global Partners, as follows:
1.
Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms
and subject to the conditions set forth herein, it may issue and sell to or through A.G.P./Alliance Global Partners, acting as
agent and/or principal (the “Sales Agent”), shares of the Company’s common stock, par value $0.001
per share (the “Common Stock”), subject to the limitations set forth in Section 3(b) hereof.
The issuance and sale of shares of Common Stock to or through the Sales Agent will be effected pursuant to the Registration Statement
(as defined below) filed by the Company and which was declared effective under the Securities Act (as defined below) by the U.S.
Securities and Exchange Commission (the “Commission”).
On
the date of this Agreement, the Company has filed, or will file, in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations thereunder (collectively, the “Securities Act”), with the
Commission, a shelf registration statement on Form S-3, including a base prospectus, relating to certain securities, including
the Common Stock, to be issued from time to time by the Company, and which incorporates by reference documents that the Company
has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder (collectively, the “Exchange Act”). The Company has prepared a prospectus supplement
specifically relating to the offering of Common Stock pursuant to this Agreement included as part of such registration statement
(the “ATM Prospectus”). As soon as practicable following the date that such registration statement is
declared effective, the Company will furnish to the Sales Agent, for use by the Sales Agent, copies of the ATM Prospectus included
as part of such registration statement, relating to the Placement Shares (as defined below). Except where the context otherwise
requires, such registration statement, as amended when it becomes effective, including all documents filed as part thereof or
incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed
with the Commission pursuant to Rule 424(b) under the Securities Act or deemed to be a part of such registration statement
pursuant to Rule 430B or 462(b) of the Securities Act, is herein called the “Registration Statement.”
The base prospectus, including all documents incorporated therein by reference (to the extent such information has not been superseded
or modified in accordance with Rule 412 under the Securities Act (as qualified by Rule 430B(g) of the Securities Act), and the
ATM Prospectus, including all documents incorporated therein by reference (to the extent such information has not been superseded
or modified in accordance with Rule 412 under the Securities Act (as qualified by Rule 430B(g) of the Securities Act), each of
which is included in the Registration Statement, as it or they may be supplemented by any additional prospectus supplement, in
the form in which such prospectus and/or ATM Prospectus have most recently been filed by the Company with the Commission pursuant
to Rule 424(b) under the Securities Act, together with any “issuer free writing prospectus” (“Issuer Free
Writing Prospectus”), as defined in Rule 433 of the Securities Act (“Rule 433”), relating to the
Placement Shares that (i) is required to be filed with the Commission by the Company or (ii) is exempt from filing pursuant to
Rule 433(d)(5)(i), in each case in the form filed or required to be filed with the Commission or, if not required to be filed,
in the form retained in the Company’s records pursuant to Rule 433(g), is herein called the “Prospectus.”
Any reference herein to the Registration Statement, the Prospectus or any amendment or supplement thereto shall be deemed to refer
to and include the documents incorporated by reference therein, and any reference herein to the terms “amend,” “amendment”
or “supplement” with respect to the Registration Statement or the Prospectus shall be deemed to refer to and include
the filing after the execution hereof of any document with the Commission deemed to be incorporated by reference therein. For
purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto
shall be deemed to include any copy filed with the Commission pursuant to either the Electronic Data Gathering Analysis and Retrieval
System, or if applicable, the Interactive Data Electronic Applications (collectively “EDGAR”).
2.
Placements. Each time that the Company wishes to issue and sell the Common Stock through the Sales Agent, as agent, hereunder
(each, a “Placement”), it will notify the Sales Agent by email notice (or other method mutually agreed
to in writing by the parties) (a “Placement Notice”) containing the parameters in accordance with which
it desires the Common Stock to be sold, which shall at a minimum include the number of shares of Common Stock to be issued (the
“Placement Shares”), the time period during which sales are requested to be made, any limitation on
the number of shares of Common Stock that may be sold in any one Trading Day (as defined in Section 3) and any minimum
price below which sales may not be made, a form of which containing such minimum sales parameters necessary is attached hereto
as Schedule 1. The Placement Notice shall originate from any of the individuals from the Company set forth
on Schedule 2 (with a copy to each of the other individuals from the Company listed on such schedule), and
shall be addressed to each of the individuals from the Sales Agent set forth on Schedule 2, as such Schedule 2
may be amended from time to time. The Placement Notice shall be effective upon receipt by the Sales Agent unless and until
(i) in accordance with the notice requirements set forth in Section 4, the Sales Agent declines to accept the
terms contained therein for any reason, in its sole discretion, (ii) the entire amount of the Placement Shares have been
sold, (iii) in accordance with the notice requirements set forth in Section 4, the Company suspends or terminates
the Placement Notice, (iv) the Company issues a subsequent Placement Notice with parameters superseding those on the earlier
dated Placement Notice, or (v) the Agreement has been terminated under the provisions of Section 11. The amount
of any discount, commission or other compensation to be paid by the Company to the Sales Agent in connection with the sale of
the Placement Shares through the Sales Agent, as agent, shall be as set forth in Schedule 3. It is expressly
acknowledged and agreed that neither the Company nor the Sales Agent will have any obligation whatsoever with respect to a Placement
or any Placement Shares unless and until the Company delivers a Placement Notice to the Sales Agent and the Sales Agent does not
decline such Placement Notice pursuant to the terms set forth above, and then only upon the terms specified therein and herein.
In the event of a conflict between the terms of this Agreement and the terms of a Placement Notice, the terms of the Placement
Notice will control.
3.
Sale of Placement Shares by the Sales Agent.
(a)
Subject to the terms and conditions herein set forth, upon the Company’s issuance of a Placement Notice, and unless the
sale of the Placement Shares described therein has been declined, suspended, or otherwise terminated in accordance with the terms
of this Agreement, the Sales Agent, as agent for the Company, will use its commercially reasonable efforts consistent with its
normal trading and sales practices and applicable state and federal laws, rules and regulations and the rules of The Nasdaq Capital
Market (the “Exchange”), for the period specified in the Placement Notice, to sell such Placement Shares
up to the amount specified by the Company in, and otherwise in accordance with the terms of such Placement Notice. If acting as
agent hereunder, the Sales Agent will provide written confirmation to the Company (including by email correspondence to each of
the individuals of the Company set forth on Schedule 2, if receipt of such correspondence is actually acknowledged
by any of the individuals to whom the notice is sent, other than via auto-reply) no later than the opening of the Trading Day
(as defined below) immediately following the Trading Day on which it has made sales of Placement Shares hereunder setting forth
the number of Placement Shares sold on such day, the volume-weighted average price of the Placement Shares, the compensation payable
by the Company to the Sales Agent pursuant to Section 2 with respect to such sales, and the Net Proceeds (as defined
below) payable to the Company, with an itemization of the deductions made by the Sales Agent (as set forth in Section 5(a))
from the gross proceeds that it receives from such sales. Subject to the terms of the Placement Notice, the Sales Agent may sell
Placement Shares by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415
under the Securities Act, including without limitation sales made directly on the Exchange, on any other existing trading market
for the Common Stock or to or through a market maker. Subject to the terms of a Placement Notice, the Sales Agent may also sell
Placement Shares by any other method permitted by law, including but not limited to in negotiated transactions with the Company’s
prior written consent. The Company acknowledges and agrees that (i) there can be no assurance that the Sales Agent will be successful
in selling Placement Shares, (ii) the Sales Agent will incur no liability or obligation to the Company or any other person or
entity if it does not sell Placement Shares for any reason other than a failure by the Sales Agent to use its commercially reasonable
efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Placement Shares
as required under this Agreement and (iii) the Sales Agent shall be under no obligation to purchase Placement Shares on a principal
basis pursuant to this Agreement, except as otherwise agreed by the Sales Agent and the Company in writing and expressly set forth
in a Placement Notice. For the purposes hereof, “Trading Day” means any day on which the Company’s
Common Stock is purchased and sold on the principal market on which the Common Stock is listed or quoted.
(b)
Under no circumstances shall the Company cause or request the offer or sale of any Placement Shares if, after giving effect to
the sale of such Placement Shares, the aggregate number or gross sales proceeds of Placement Shares sold pursuant to this Agreement
would exceed the lesser of: (i) the number or dollar amount of shares of Common Stock registered pursuant to the Registration
Statement pursuant to which the offering hereunder is being made, (ii) the number of authorized but unissued and unreserved
shares of Common Stock, (iii) the number or dollar amount of shares of Common Stock permitted to be offered and sold by the
Company under Form S-3 (including General Instruction I.B.6. of Form S-3, if and for so long as applicable), (iv) the number
or dollar amount of shares of Common Stock authorized from time to time to be issued and sold under this Agreement by the Company’s
board of directors, a duly authorized committee thereof or a duly authorized executive committee, and notified to the Sales Agent
in writing, or (v) the number or dollar amount of shares of Common Stock for which the Company has filed the ATM Prospectus
or other prospectus supplement specifically relating to the offering of the Placement Shares pursuant to this Agreement. Under
no circumstances shall the Company cause or request the offer or sale of any Placement Shares pursuant to this Agreement at a
price lower than the minimum price authorized from time to time by the Company’s board of directors, a duly authorized committee
thereof or a duly authorized executive committee, and notified to the Sales Agent in writing. Notwithstanding anything to the
contrary contained herein, the parties hereto acknowledge and agree that compliance with the limitations set forth in this Section
3(b) on the number or dollar amount of Placement Shares that may be issued and sold under this Agreement from time to time
shall be the sole responsibility of the Company, and that the Sales Agent shall have no obligation in connection with such compliance.
(c)
During the term of this Agreement, neither the Sales Agent nor any of its affiliates or subsidiaries shall engage in (i) any
short sale of any security of the Company or (ii) any sale of any security of the Company that the Sales Agent does not own
or any sale which is consummated by the delivery of a security of the Company borrowed by, or for the account of, the Sales Agent.
During the term of this Agreement and notwithstanding anything to the contrary herein, the Sales Agent agrees that in no event
will the Sales Agent or its affiliates engage in any market making, bidding, stabilization or other trading activity with regard
to the Common Stock or related derivative securities if such activity would be prohibited under Regulation M or other anti-manipulation
rules under the Exchange Act.
4.
Suspension of Sales.
(a)
The Company or the Sales Agent may, upon notice to the other party in writing (including by email correspondence to each of the
individuals of the other party set forth on Schedule 2, if receipt of such correspondence is actually
acknowledged by any of the individuals to whom the notice is sent, other than via auto-reply) or by telephone (confirmed immediately
by verifiable facsimile transmission or email correspondence to each of the individuals of the other party set forth on Schedule 2),
suspend any sale of Placement Shares for a period of time (a “Suspension Period”); provided, however,
that such suspension shall not affect or impair either party’s obligations with respect to any Placement Shares sold hereunder
prior to the receipt of such notice. Each of the parties agrees that no such notice under this Section 4 shall be
effective against the other unless it is made to one of the individuals named on Schedule 2 hereto, as such
schedule may be amended from time to time. During a Suspension Period, the Company shall not issue any Placement Notices and the
Sales Agent shall not sell any Placement Shares hereunder. The party that issued a suspension notice shall notify the other party in
writing of the Trading Day on which the Suspension Period shall expire not later than twenty-four (24) hours prior to such Trading
Day.
(b)
Notwithstanding any other provision of this Agreement, during any period in which the Company is in possession of material non-public
information, the Company and the Sales Agent agree that (i) no sale of Placement Shares will take place, (ii) the Company
shall not request the sale of any Placement Shares, and (iii) the Sales Agent shall not be obligated to sell or offer to
sell any Placement Shares.
5.
Settlement.
(a)
Settlement of Placement Shares. Unless otherwise specified in the applicable Placement Notice, settlement for sales of
Placement Shares will occur on the second (2nd) Trading Day (or such earlier day as is industry practice for regular-way
trading) following the respective Point of Sale (as defined below) (each, a “Settlement Date”). The
amount of proceeds to be delivered to the Company on a Settlement Date against receipt of the Placement Shares sold (the “Net
Proceeds”) will be equal to the aggregate sales price received by the Sales Agent at which such Placement Shares
were sold, after deduction for (i) the Sales Agent’s discount, commission or other compensation for such sales payable
by the Company pursuant to Section 2 hereof, and (ii) any transaction fees, trading expenses or execution fees
imposed by any clearing organization or any governmental or self-regulatory organization and any other fees incurred by the Sales
Agent in respect of such sales.
(b)
Delivery of Placement Shares. On or before each Settlement Date, the Company will, or will cause its transfer agent to,
electronically transfer the Placement Shares being sold by crediting the Sales Agent’s or its designee’s account (provided
the Sales Agent shall have given the Company written notice of such designee prior to the Settlement Date) at The Depository Trust
Company through its Deposit and Withdrawal at Custodian System or by such other means of delivery as may be mutually agreed upon
by the parties hereto which in all cases shall be freely tradable, transferable, registered shares in good deliverable form. On
each Settlement Date, the Sales Agent will deliver the related Net Proceeds in same day funds to an account designated by the
Company on, or prior to, the Settlement Date. The Company agrees that if the Company, or its transfer agent (if applicable), defaults
in its obligation to deliver duly authorized Placement Shares on a Settlement Date, through no fault of the Sales Agent, the Company
agrees that in addition to and in no way limiting the rights and obligations set forth in Section 9(a) (Indemnification
and Contribution) hereto, the Company will (i) hold the Sales Agent, its directors, officers, members, partners, employees
and agents of the Sales Agent, each broker dealer affiliate of the Sales Agent, and each person, if any, who (A) controls
the Sales Agent within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act or (B) is
controlled by or is under common control with the Sales Agent (each, a “Sales Agent Affiliate”), and
the Sales Agent’s clearing organization, harmless against any loss, claim, damage, or reasonable and documented expense
(including reasonable legal fees and expenses), as incurred, arising out of or in connection with such default by the Company
or its transfer agent (if applicable) and (ii) pay to the Sales Agent any commission, discount, or other compensation to
which it would otherwise have been entitled absent such default.
6.
Representations and Warranties of the Company. The Company represents and warrants to, and agrees with, the Sales Agent
that as of each Applicable Time (as defined in Section 22(a)), unless such representation, warranty or agreement specifies
a different time or times:
(a)
Compliance with Registration Requirements. As of each Applicable Time other than the date of this Agreement, the Registration
Statement and any Rule 462(b) Registration Statement have been declared effective by the Commission under the Securities
Act. The Company has complied to the Commission’s satisfaction with all requests of the Commission for additional or supplemental
information related to the Registration Statement and the Prospectus. No stop order suspending the effectiveness of the Registration
Statement or any Rule 462(b) Registration Statement is in effect and no proceedings for such purpose have been instituted
or are pending or, to the knowledge of the Company, are contemplated or threatened by the Commission. The Registration Statement
and, assuming no act or omission on the part of the Sales Agent that would make such statements untrue, the offer and sale of
the Placement Shares as contemplated hereby meet the requirements of Rule 415 under the Securities Act and comply in all
material respects with said Rule. In the section entitled “Plan of Distribution” in the ATM Prospectus, the Company
has named A.G.P./Alliance Global Partners as an agent that the Company has engaged in connection with the transactions contemplated
by this Agreement. The Company was not and is not an “ineligible issuer” as defined in Rule 405 under the Securities
Act.
(b)
No Misstatement or Omission. The Registration Statement and any post-effective amendment thereto, at the time it became
or becomes effective, complied or will comply in all material respects with the Securities Act. The Prospectus, and any amendment
or supplement thereto, on the date of such Prospectus or amendment or supplement, complied or will comply in all material respects
with the Securities Act. The Registration Statement and any post-effective amendment thereto, at the time it became or becomes
effective, did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading. The Prospectus, as amended or supplemented, as of its
date, did not and, as of each Point of Sale and each Settlement Date, will not contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading. The representations and warranties set forth in the two immediately preceding sentences do not
apply to statements in or omissions from the Registration Statement or any post-effective amendment thereto, or the Prospectus,
or any amendments or supplements thereto, made in reliance upon and in conformity with information relating to the Sales Agent
furnished to the Company in writing by the Sales Agent expressly for use therein. “Point of Sale” means,
for a Placement, the time at which an acquiror of Placement Shares entered into a contract, binding upon such acquiror, to acquire
such Placement Shares.
(c) Offering Materials Furnished to the Sales Agent. Copies of the Registration Statement, the Prospectus, and all amendments
or supplements thereto and all documents incorporated by reference therein that were filed with the Commission on or prior to
the date of this Agreement, have been delivered, or are publicly available through EDGAR, to the Sales Agent. Each Prospectus
delivered to the Sales Agent for use in connection with the sale of the Placement Shares pursuant to this Agreement will be identical
to the version of such Prospectus filed with the Commission via EDGAR, except to the extent permitted by Regulation S-T.
(d)
Distribution of Offering Material By the Company. The Company has not distributed and will not distribute, prior to the
completion of the Sales Agent’s distribution of the Placement Shares, any offering material in connection with the offering
and sale of the Placement Shares other than the Prospectus or the Registration Statement.
(e)
The Sales Agreement. This Agreement has been duly authorized, executed and delivered by the Company, and constitutes a
valid, legal, and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as rights
to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally, and subject to
general principles of equity. The Company has full corporate power and authority to enter into this Agreement and to authorize,
issue and sell the Placement Shares as contemplated by this Agreement. This Agreement conforms in all material respects to the
descriptions thereof in the Registration Statement and the Prospectus.
(f)
Authorization of the Placement Shares. The Placement Shares, when issued and paid for as contemplated herein, will be validly
issued, fully paid and nonassessable, will be issued in compliance with all applicable securities laws, and will be free of preemptive,
registration or similar rights, and will conform to the description of the Common Stock contained in the Registration Statement
and the Prospectus.
(g)
No Applicable Registration or Other Similar Rights. There are no persons with registration or other similar rights to have
any equity or debt securities registered for sale under the Registration Statement or included in the offering contemplated by
this Agreement, except for such rights as have been duly waived. No person has the right to act as an underwriter or as a financial
advisor to the Company in connection with the offer and sale of the Placement Shares hereunder, whether as a result of the filing
or effectiveness of the Registration Statement or the sale of the Placement Shares as contemplated hereby or otherwise.
(h)
No Material Adverse Change. Except as otherwise disclosed in the Prospectus, subsequent to the respective dates as of which
information is given in the Prospectus: (i) there has been no material adverse change in the business, properties, prospects,
operations, condition (financial or otherwise) or results of operations of the Company (any such change is called a “Material
Adverse Change”), which, individually or in the aggregate, has had or would reasonably be expected to result in
a Material Adverse Change; (ii) the Company has not incurred any material liability or obligation, indirect, direct or contingent,
not in the ordinary course of business nor entered into any material transaction or agreement not in the ordinary course of business;
(iii) there has been no dividend or distribution of any kind declared, paid or made by the Company; (iv) no officer or director
of the Company has resigned from any position with the Company; and (v) there has not been any Material Adverse Change in the
Company’s long-term debt.
(i)
Independent Accountants. To the knowledge of the Company, EisnerAmper LLP, whose report is filed with the Commission and
included or incorporated by reference in the Registration Statement and the Prospectus, is an independent registered public accounting
firm as required by the Securities Act and the Public Company Accounting Oversight Board.
(j)
Financial Statements. Preparation of the Financial Statements. The financial statements filed with the Commission as a
part of the Registration Statement and included in the Prospectus, together with the related notes and schedules, present fairly,
in all material respects, the consolidated financial position of the Company and its subsidiaries as of and at the dates indicated
and the results of their operations and cash flows for the periods specified. Such financial statements and supporting schedules
have been prepared in conformity with U.S. generally accepted accounting principles (“GAAP”) applied on a consistent
basis throughout the periods involved, except as may be expressly stated in the related notes thereto. No other financial statements
or supporting schedules are required to be included in or incorporated in the Registration Statement.
(k)
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 or the Prospectus has been made or reaffirmed by the Company
without a reasonable basis or has been disclosed by the Company other than in good faith.
(l)
Statistical and Marketing-Related Data. The statistical and market-related data included in each of the Registration Statement
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.
(m)
XBRL. The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration
Statement fairly presents the information called for in all material respects and has been prepared in accordance with the Commission’s
rules and guidelines applicable thereto.
(n)
Incorporation and Good Standing of the Company. The Company is a corporation duly incorporated and validly existing under
the laws of the State of Nevada. The Company has requisite corporate power to carry on its business as described in the Prospectus.
The Company is duly qualified to transact business and is in good standing in all jurisdictions in which the conduct of its business
requires such qualification; except where the failure to be so qualified or to be in good standing would not result in a Material
Adverse Change. The Company has no subsidiaries and does not own or control, directly or indirectly, any corporation, association
or other entity other than the subsidiaries listed in Exhibit 21.1 to the Company’s Annual Report on Form 10-K for the most
recently ended fiscal year and other than (i) those subsidiaries not required to be listed on Exhibit 21.1 by Item 601 of Regulation
S-K under the Exchange Act and (ii) those subsidiaries formed since the last day of the most recently ended fiscal year.
(o)
Capital Stock Matters. 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 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 conform in all material respects to all statements
relating thereto contained in the Registration Statement 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. The description of the Company’s stock option, stock bonus and other stock plans or arrangements, and the
options or other rights granted thereunder, as described in the Registration Statement and the Prospectus, accurately and fairly
present, in all material respects, the information required to be shown with respect to such plans, arrangements, options and
rights.
(p)
Non-Contravention of Existing Instruments; No Further Authorizations or Approvals Required. The Company’s execution,
delivery and performance of this Agreement and consummation of the transactions contemplated hereby or by the Registration Statement
and the Prospectus (including the issuance and sale of the Placement Shares and the use of the proceeds from the sale of the Placement
Shares as described in the Prospectus under the caption “Use of Proceeds”) will not (A) result in a material violation
of any existing applicable law, rule, regulation, judgment, order or decree of any Governmental Entity as of the date hereof (including,
without limitation, those promulgated by the Food and Drug Administration of the U.S. Department of Health and Human Services
(the “FDA”) or by any foreign, federal, state or local regulatory authority performing functions similar
to those performed by the FDA), (B) conflict with, result in any violation or breach of, or constitute a default (or an event
that with notice or lapse of time or both would become a default) under, or give to others any right of termination, amendment,
acceleration or cancellation (with or without notice, lapse of time or both) (a “Default Acceleration Event”)
of, any agreement, lease, credit facility, debt, note, bond, mortgage, indenture or other instrument (“Contract”)
or obligation or other understanding to which the Company is a party or by which any property or asset of the Company is bound
or affected, except to the extent that such conflict, default, or Default Acceleration Event is not reasonably likely to result
in a Material Adverse Change, or (C) result in a breach or violation of any of the terms and provisions of, or constitute a default
under, the Company’s articles of incorporation (as the same may be amended or restated from time to time) or bylaws (as
the same may be amended or restated from time to time). The Company is not in violation, breach or default under its articles
of incorporation (as the same may be amended or restated from time to time) or bylaws (as the same may be amended or restated
from time to time). Neither the Company nor, to its knowledge, any other party is in violation, breach or default of any Contract
that has resulted in or could reasonably be expected to result in a Material Adverse Change. Each approval, consent, order, authorization,
designation, declaration or filing by or with any regulatory, administrative or other governmental body necessary in connection
with the execution and delivery by the Company of this Agreement and the performance of the Company of the transactions herein
contemplated has been obtained or made and is in full force and effect, except (i) with respect to any Applicable Time at
which the Sales Agent would not be able to rely on Rule 5110(b)(7)(C)(i) of the Financial Industry Regulatory Authority,
Inc. (“FINRA”), such additional steps as may be required by FINRA, (ii) filings with the Commission
required under the Securities Act or the Exchange Act, or filings with the Exchange pursuant to the rules and regulations of the
Exchange, in each case that are contemplated by this Agreement to be made after the date of this Agreement, and (iii) such additional
steps as may be necessary to qualify the Common Stock for sale by the Sales Agent under state securities or Blue Sky laws.
(q)
No Material Actions or Proceedings. There is no 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, including any proceeding before the FDA or comparable federal, state,
local or foreign governmental bodies (it being understood that the interaction between the Company and the FDA and such comparable
governmental bodies relating to the clinical development and product approval process shall not be deemed proceedings for purposes
of this representation), which has not been disclosed in the Registration Statement and the Prospectus which is required to be
disclosed, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Change.
(r)
Labor Disputes. No labor dispute with the employees of the Company exists or, to the knowledge of the Company, is imminent.
The Company is not aware that any key employee or significant group of employees of the Company plans to terminate employment
with the Company.
(s)
Compliance with Certain Applicable Laws. The Company: (A) is and at all times has been in compliance with all statutes,
rules, or regulations applicable to the ownership, testing, development, manufacture, packaging, processing, use, distribution,
marketing, labeling, promotion, sale, offer for sale, storage, import, export or disposal of any product manufactured or distributed
by the Company (“Applicable Laws”), except as could not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Change; (B) has not received any warning letter, untitled letter or
other correspondence or notice from any governmental authority alleging or asserting noncompliance with any Applicable Laws or
any licenses, certificates, approvals, clearances, authorizations, permits and supplements or amendments thereto required by any
such Applicable Laws (“Authorizations”); (C) possesses all material Authorizations and such Authorizations
are valid and in full force and effect and are not in material violation of any term of any such Authorizations; (D) has not received
notice of any claim, action, suit, proceeding, hearing, enforcement, investigation, arbitration or other action from any governmental
authority 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 authority or third party is considering any such claim, litigation, arbitration,
action, suit, investigation or proceeding; (E) has not received notice that any governmental authority has taken, is taking or
intends to take action to limit, suspend, modify or revoke any Authorizations and has no knowledge that any such governmental
authority is considering such action; and (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 on the date filed (or were corrected or supplemented by a subsequent submission).
(t)
Tax Law Compliance. 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. The provisions
for taxes payable, if any, shown on the financial statements filed with or as part of or incorporated by reference in 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. Other than as disclosed in the Registration Statement and the Prospectus, (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. There are no tax liens against the assets, properties or business of the Company. The
term “taxes” means 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.
(u)
Company Not an “Investment Company”. The Company is not, and will not be, either after receipt of payment for
the Placement Shares or after the application of the proceeds therefrom as described under “Use of Proceeds” in the
Registration Statement or the Prospectus, required to register as an “investment company” under the Investment Company
Act of 1940, as amended (the “Investment Company Act”).
(v)
Insurance. The Company carries or is entitled to the benefits of insurance, with reputable insurers, in such amounts and
covering such risks which the Company believes are 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.
(w)
No Price Stabilization or Manipulation. The Company has not taken, directly or indirectly (without giving any effect to
the activities of the Agent), any action designed to or that might cause or result in stabilization or manipulation of the price
of the Common Stock or of any “reference security” (as defined in Rule 100 of Regulation M under the Exchange Act
(“Regulation M”)) with respect to the Common Stock, whether to facilitate the sale or resale of the
Placement Shares or otherwise, and has taken no action which would directly or indirectly violate Regulation M.
(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 and the Prospectus that have not been described as required
pursuant to the Securities Act.
(y)
Exchange Act Compliance. The documents incorporated or deemed to be incorporated by reference in the Registration Statement,
the Prospectus or any amendment or supplement thereto, at the time they were or hereafter are filed with the Commission under
the Exchange Act, complied and will comply in all material respects with the requirements of the Exchange Act, and, when read
together with the other information in the Prospectus, at each Point of Sale and each Settlement Date, will not contain an untrue
statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the 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.
(z)
Conformity of Issuer Free Writing Prospectus. Each Issuer Free Writing Prospectus conformed or will conform in all material
respects to the requirements of the Securities Act on the date of first use, and the Company has complied or will comply with
any filing requirements applicable to such Issuer Free Writing Prospectus pursuant to the Securities Act. Each Issuer Free Writing
Prospectus, as of its issue date and at all subsequent times through the completion of the public offer and sale of the Placement
Shares, did not, does not and will not include any information that conflicted, conflicts or will conflict with the information
contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not
been superseded or modified. The Company has not made any offer relating to the Placement Shares that would constitute an Issuer
Free Writing Prospectus without the prior written consent of the Sales Agent. The Company has retained in accordance with the
Securities Act all Issuer Free Writing Prospectuses that were not required to be filed pursuant to the Securities Act.
(aa)
Compliance with Environmental Laws. The Company is in compliance with all foreign, federal, state and local rules, laws
and regulations relating to the use, treatment, storage and disposal of hazardous or toxic substances or waste and protection
of health and safety or the environment which are applicable to its business (“Environmental Laws”),
except where the failure to comply would not, singularly or in the aggregate, result in a Material Adverse Change. There
has been no storage, generation, transportation, handling, treatment, disposal, discharge, emission, or other release of any kind
of toxic or other wastes or other hazardous substances by, due to, or caused by the Company (or, to the Company’s knowledge,
any other entity for whose acts or omissions the Company is or may otherwise be liable) upon any of the property now or previously
owned or leased by the Company, or upon any other property, in violation of any law, statute, ordinance, rule, regulation, order,
judgment, decree or permit or which would, under any law, statute, ordinance, rule (including rule of common law), regulation,
order, judgment, decree or permit, give rise to any liability, except for any violation or liability which would not have, singularly
or in the aggregate with all such violations and liabilities, a Material Adverse Change; and there has been no disposal, discharge,
emission or other release of any kind onto such property or into the environment surrounding such property of any toxic or other
wastes or other hazardous substances with respect to which the Company has knowledge, except for any such disposal, discharge,
emission, or other release of any kind which would not have, singularly or in the aggregate with all such discharges and other
releases, a Material Adverse Change. In the ordinary course of business, the Company conducts periodic reviews of the effect
of Environmental Laws on its business and assets, in the course of which it identifies and evaluates associated costs and liabilities
(including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance
with Environmental Laws or governmental permits issued thereunder, any related constraints on operating activities and any potential
liabilities to third parties). On the basis of such reviews, the Company has reasonably concluded that such associated costs
and liabilities would not have, singularly or in the aggregate, a Material Adverse Change.
(bb)
Intellectual Property. The Company owns or possesses or has valid rights to use all patents, patent applications, trademarks,
service marks, trade names, trademark registrations, service mark registrations, copyrights, licenses, inventions, trade secrets
and similar rights (“Intellectual Property Rights”) necessary for the conduct of the business of the
Company as currently carried on and as described in the Registration Statement and the Prospectus, except as would not be reasonably
likely to result in a Material Adverse Change. To the knowledge of the Company, no action or use by the Company necessary for
the conduct of its business as currently carried on and as described in the Registration Statement and the Prospectus will involve
or give rise to any infringement of, or license or similar fees for, any Intellectual Property Rights of others, except where
such action, use, license or fee is not reasonably likely to result in a Material Adverse Change. The Company has not received
any notice alleging any such infringement, fee or conflict with asserted Intellectual Property Rights of others. Except as would
not reasonably be expected to result, individually or in the aggregate, in a Material Adverse Change (A) to the knowledge of the
Company, there is no infringement, misappropriation or violation by third parties of any of the Intellectual Property Rights owned
by the Company; (B) there is no pending or, to the knowledge of the Company, threatened action, suit, proceeding or claim by others
challenging the rights of the Company in or to any such Intellectual Property Rights, and the Company is unaware of any facts
which would form a reasonable basis for any such claim, that would, individually or in the aggregate, together with any other
claims in this Section 6(bb), reasonably be expected to result in a Material Adverse Change; (C) the Intellectual Property
Rights owned by the Company and, to the knowledge of the Company, the Intellectual Property Rights licensed to the Company have
not been adjudged by a court of competent jurisdiction invalid or unenforceable, in whole or in part, and there is no pending
or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others challenging the validity or scope
of any such Intellectual Property Rights, and the Company is unaware of any facts which would form a reasonable basis for any
such claim that would, individually or in the aggregate, together with any other claims in this Section 6(bb), reasonably
be expected to result in a Material Adverse Change; (D) there is no pending or, to the Company’s knowledge, threatened action,
suit, proceeding or claim by others that the Company infringes, misappropriates or otherwise violates any Intellectual Property
Rights or other proprietary rights of others, the Company has not received any written notice of such claim and the Company is
unaware of any other facts which would form a reasonable basis for any such claim that would, individually or in the aggregate,
together with any other claims in this Section 6(bb), reasonably be expected to result in a Material Adverse Change; and
(E) to the Company’s knowledge, no employee of the Company is in or has ever been in violation in any material respect of
any term of any employment contract, patent disclosure agreement, invention assignment agreement, non-competition agreement, non-solicitation
agreement, nondisclosure agreement or any restrictive covenant to or with a former employer where the basis of such violation
relates to such employee’s employment with the Company, or actions undertaken by the employee while employed with the Company
and could reasonably be expected to result, individually or in the aggregate, in a Material Adverse Change. To the Company’s
knowledge, all material technical information developed by and belonging to the Company which has not been patented has been kept
confidential. The Company is not a party to or bound by any options, licenses or agreements with respect to the Intellectual Property
Rights of any other person or entity that are required to be set forth in the Registration Statement and the Prospectus and are
not described therein. The Registration Statement and the Prospectus contain in all material respects the same description of
the matters set forth in the preceding sentence. None of the technology employed by the Company has been obtained or is being
used by the Company in violation of any contractual obligation binding on the Company or, to the Company’s knowledge, any
of its officers, directors or employees, or otherwise in violation of the rights of any persons.
(cc)
Brokers. The Company is not a party to any contract, agreement or understanding with any person (other than as contemplated
by this Agreement) that would give rise to a valid claim against the Company or the Sales Agent for a brokerage commission, finder’s
fee or like payment in connection with the offering and sale of the Placement Shares by the Sales Agent under this Agreement.
(dd)
No Outstanding Loans or Other Indebtedness. There are no outstanding loans, advances (except normal advances for business
expenses in the ordinary course of business) or guarantees or indebtedness by the Company to or for the benefit of any of the
officers or directors of the Company, or any of their respective family members, except as disclosed in the Registration Statement
and the Prospectus.
(ee)
No Reliance. The Company has not relied upon the Sales Agent or legal counsel for the Sales Agent for any legal, tax or
accounting advice in connection with the offering and sale of the Placement Shares.
(ff)
Broker-Dealer Status. Neither the Company nor any of its related entities (i) is required to register as a “broker”
or “dealer” in accordance with the provisions of the Exchange Act or (ii) directly or indirectly through one
or more intermediaries, controls or is a “person associated with a member” or “associated person of a member”
(within the meaning of Article I of the NASD Manual administered by FINRA). To the Company’s knowledge, there are no affiliations
or associations between any member of FINRA and any of the Company’s officers, directors or 5% or greater security holders,
except as set forth in the Registration Statement.
(gg)
Public Float Calculation. At the time the Registration Statement and any Rule 462(b) Registration Statement was
or will be filed with the Commission, at the time the Registration Statement and any Rule 462(b) Registration Statement
was or will be declared effective by the Commission, and at the time the Company’s most recent Annual Report on Form 10-K
was filed with the Commission, the Company met or will meet the then applicable requirements for the use of Form S-3 under the
Securities Act. As of the close of trading on the Exchange on July 5, 2024, the aggregate market value of the outstanding voting
and non-voting common equity (as defined in Rule 405) of the Company held by persons other than affiliates of the Company
(pursuant to Rule 144 of the Securities Act, those that directly, or indirectly through one or more intermediaries, control,
or are controlled by, or are under common control with, the Company) (the “Non-Affiliate Shares”), was
approximately $86.5 million (calculated by multiplying (x) the price at which the common equity of the Company was last sold
on the Exchange on May 17, 2024 by (y) the number of Non-Affiliate Shares outstanding on July 5, 2024). The Company is
not a shell company (as defined in Rule 405) and has not been a shell company for at least 12 calendar months previously
and if it has been a shell company at any time previously, has filed current Form 10 information (as defined in Instruction I.B.6.
of Form S-3) with the Commission at least 12 calendar months previously reflecting its status as an entity that is not a shell
company.
(hh)
FINRA Matters. All of the information provided to the Sales Agent or to counsel for the Sales Agent by the Company, its
counsel, its officers and directors and, to the Company’s knowledge, the holders of any securities (debt or equity) or options
to acquire any securities of the Company in connection with the offering of the Placement Shares is true, complete, correct and
compliant with FINRA’s rules in all material respects and any letters, filings or other supplemental information provided
to FINRA pursuant to FINRA Rules or NASD Conduct Rules is true, complete and correct in all material respects. Except as disclosed
in the Registration Statement and the Prospectus, there is no (i) officer or director of the Company, (ii) beneficial owner of
5% or more of any class of the Company’s securities or (iii) beneficial owner of the Company’s unregistered equity
securities that were acquired during the 180-day period immediately preceding the date of this Agreement that is an affiliate
or associated person of a FINRA member participating in the offer, issuance and sale of the Placement Shares as contemplated by
this Agreement and the Registration Statement and the Prospectus (as determined in accordance with the rules and regulations of
FINRA).
(ii)
Compliance with Orders. The Company is not in violation of any material judgment, decree, or order of any court, arbitrator
or other governmental authority.
(jj)
Sarbanes–Oxley Act. The Company is in material compliance with any and all applicable requirements of the Sarbanes-Oxley
Act of 2002 and the rules and regulations promulgated in connection therewith (the “Sarbanes-Oxley Act”)
that are effective as of the date hereof, and any and all applicable rules and regulations promulgated by the Commission thereunder
that are effective as of the date hereof and as of the date hereof.
(kk)
Disclosure Controls And Procedures. Except as set forth in the Registration Statement and the Prospectus, the Company maintains
systems of “internal control over financial reporting” (as defined under Rules 13a-15 and 15d-15 under the Exchange
Act) that comply with the requirements of the Exchange Act and have been designed by, or under the supervision of, their respective
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; (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;
and (v) the interactive data in eXtensible Business Reporting Language included or incorporated by references in the Registration
Statement and the Prospectus fairly present the information called for in all material respects and are prepared in accordance
with the Commission’s rules and guidelines applicable thereto. Since the date of the latest audited financial statements
included in the Registration Statement and the Prospectus, there has been no change in the Company’s internal control over
financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control
over financial reporting.
(ll)
ERISA. The Company and any “employee benefit plan” (as defined under the Employee Retirement Income Security
Act of 1974, as amended, and the regulations and published interpretations thereunder (collectively, “ERISA”))
established or maintained by the Company or its “ERISA Affiliates” (as defined below) are in compliance in all material
respects with ERISA. “ERISA Affiliate” means, with respect to the Company, any member of any group of
organizations described in Sections 414(b),(c),(m) or (o) of the Internal Revenue Code of 1986, as amended, and the regulations
and published interpretations thereunder (the “Code”) of which the Company is a member. No “reportable
event” (as defined under ERISA) has occurred or is reasonably expected to occur with respect to any “employee benefit
plan” established or maintained by the Company or any of its ERISA Affiliates. No “employee benefit plan” established
or maintained by the Company or any of its ERISA Affiliates, if such “employee benefit plan” were terminated, would
have any “amount of unfunded benefit liabilities” (as defined under ERISA). Neither the Company nor any of its ERISA
Affiliates has incurred or reasonably expects to incur any material liability under (i) Title IV of ERISA with respect to termination
of, or withdrawal from, any “employee benefit plan” or (ii) Sections 412, 4971, 4975 or 4980B of the Code. Each “employee
benefit plan” established or maintained by the Company or any of its ERISA Affiliates that is intended to be qualified under
Section 401(a) of the Code is so qualified and, to the knowledge of the Company, nothing has occurred, whether by action or failure
to act, which would cause the loss of such qualification.
(mm)
Contracts and Agreements. The agreements and documents described in the Registration Statement 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 to be described in the Registration Statement 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 and the Prospectus, or (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. To the best of 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.
(nn)
Title to Properties. Except as set forth in the Registration Statement and the Prospectus, the Company has good and marketable
title in fee simple to, or has valid rights to lease or otherwise use, all items of real or personal property which are material
to the business of the Company, in each case free and clear of all liens, encumbrances, security interests, claims and defects
that do not, singly or in the aggregate, materially affect the value of such property and do not interfere with the use made and
proposed to be made of such property by the Company; and all of the leases and subleases material to the business of the Company,
and under which the Company holds properties described in the Registration Statement and the Prospectus, are in full force and
effect, and the Company has not received any notice of any material claim of any sort that has been asserted by anyone adverse
to the rights of the Company under any of the leases or subleases mentioned above, or affecting or questioning the rights of the
Company to the continued possession of the leased or subleased premises under any such lease or sublease, which would result in
a Material Adverse Change.
(oo)
No Unlawful Contributions or Other Payments. No payments or inducements have been made or given, directly or indirectly,
to any federal or local official or candidate for, any federal or state office in the United States or foreign offices by the
Company or any of its officers or directors, or, to the knowledge of the Company, by any of its employees or agents or any other
person in connection with any opportunity, contract, permit, certificate, consent, order, approval, waiver or other authorization
relating to the business of the Company, except for such payments or inducements as were lawful under applicable laws, rules and
regulations. Neither the Company, nor, to the knowledge of the Company, any director, officer, agent, employee or other person
associated with or acting on behalf of the Company, (i) has used any corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment
to any government official or employee from corporate funds; or (iii) made any bribe, unlawful rebate, payoff, influence
payment, kickback or other unlawful payment in connection with the business of the Company.
(pp)
Foreign Corrupt Practices Act. None of the Company or, to the knowledge of the Company, any director, officer, agent, employee,
affiliate or other person acting on behalf of the Company, is aware of or has taken any action, directly or indirectly, that would
result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations
thereunder (collectively, the “FCPA”), including, without limitation, making use of the mails or any
means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization
of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to
any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or
any candidate for foreign political office, in contravention of the FCPA. The Company has conducted its business in compliance
with the FCPA and has instituted and maintains policies and procedures designed to ensure, and which are reasonably expected to
continue to ensure, continued compliance therewith.
(qq)
Money Laundering Laws. The operations of the Company are and have been conducted at all times in compliance 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 jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations
or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”)
and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving
the Company with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(rr)
OFAC. None of the Company or, to the knowledge of the Company, any director, officer, agent, employee, affiliate or person
acting on behalf of the Company is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control
of the U.S. Treasury Department (“OFAC”); and the Company will not directly or indirectly use the proceeds
of the offering, 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.
(ss)
Exchange Listing. The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is currently listed
on the Exchange under the trading symbol “TNXP”. Except as disclosed in the Registration Statement and the Prospectus,
there is no action pending by the Company or, to the Company’s knowledge, the Exchange to delist the Common Stock from the
Exchange, nor has the Company received any notification that the Exchange is contemplating terminating such listing. The Company
has no intention to delist the Common Stock from the Exchange or to deregister the Common Stock under the Exchange Act, in either
case, at any time during the period commencing on the date of this Agreement through and including the 90th calendar day after
the termination of this Agreement. The Placement Shares have been approved for listing on the Exchange. The issuance and sale
of the Placement Shares under this Agreement does not contravene the rules and regulations of the Exchange.
(tt)
Margin Rules. 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 from
the issuance, sale and delivery of the Placement Shares as contemplated by this Agreement and as described in the Registration
Statement and the Prospectus 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.
(uu)
Underwriter Agreements. The Company is not a party to any agreement with an agent or underwriter for any other “at-the-market”
or continuous equity transaction.
(vv)
Board of Directors. The qualifications of the persons serving as board members of the Company and the overall composition
of the Company’s Board of Directors comply with the applicable requirements of the Exchange Act and the Sarbanes-Oxley Act
and the listing rules of the Exchange applicable to the Company. 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 of the Company
qualify as “independent,” as defined under the listing rules of the Exchange.
(ww)
No Integration. 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 offer and sale of the Placement Shares hereunder 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.
(xx)
No Material Defaults. The Company has not defaulted on any installment on indebtedness for borrowed money or on any rental
on one or more long-term leases, which defaults, individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Change. The Company has not filed a report pursuant to Section 13(a) or 15(d) of the Exchange Act since
the filing of its last Annual Report on Form 10-K, indicating that it (i) has failed to pay any dividend or sinking
fund installment on preferred stock or (ii) has defaulted on any installment on indebtedness for borrowed money or on any
rental on one or more long-term leases, which defaults, individually or in the aggregate, could reasonably be expected to result
in a Material Adverse Change.
(yy)
Books and Records. The minute books of the Company have been made available to the Sales Agent and counsel for the Sales
Agent, and such books (i) contain a substantially complete summary of all meetings and material actions of the board of directors
(including each board committee) and stockholders of the Company (or analogous governing bodies and interest holders, as applicable)
since the time of its respective incorporation or organization through the date of the latest meeting and action, and (ii) accurately
in all material respects reflect all transactions referred to in such minutes.
(zz)
Regulations. The disclosures in the Registration Statement and the Prospectus concerning the effects of federal, state,
local and all foreign regulation on the Company’s business in the past and as currently contemplated are correct in all
material respects and no other such regulations are required to be disclosed in the Registration Statement and the Prospectus
which are not so disclosed.
(aaa)
Regulatory Matters; Compliance. All preclinical and other nonclinical studies and clinical trials conducted by or on behalf
of the Company that are material to the Company have been adequately described in the Registration Statement and the Prospectus,
in all material respects. The clinical trials and nonclinical studies conducted by or on behalf of the Company that are
described in the Registration Statement and the Prospectus or the results of such trials and studies which are referred to in
the Registration Statement and the Prospectus were and, if still ongoing, are being conducted in material compliance with
all laws and regulations applicable thereto in the jurisdictions in which they are being conducted. The descriptions in
the Registration Statement and the Prospectus of the results of such trials and studies are accurate and complete in all material
respects and fairly present the data derived from such trials and studies, and the Company has no knowledge of any clinical trials
the aggregate results of which are inconsistent with or otherwise call into question the results of any clinical trial conducted
by or on behalf of the Company that are described in the Registration Statement and the Prospectus or the results of which are
referred to in the Registration Statement and the Prospectus. Except as disclosed in the Registration Statement and the
Prospectus, the Company has not received any written notices or other communications from the FDA, the European Medicines Agency
(“EMA”) or any other governmental agency or authority imposing, requiring, requesting or suggesting a clinical
hold, termination, suspension or material modification of any clinical trial that is described in the Registration Statement and
the Prospectus or the results of which are referred to in the Registration Statement and the Prospectus. Except as disclosed
in the Registration Statement and the Prospectus, the Company has not received any written notices or other communications from
the FDA, the EMA or any other governmental agency, and otherwise has no knowledge of, or reason to believe that, (i) any investigational
new drug application for a potential product of the Company is or has been rejected or determined to be non-approvable or conditionally
approvable; and (ii) any license, approval, permit or authorization to conduct any clinical trial of any potential product of
the Company has been, will be or may be suspended, revoked, modified or limited.
(bbb)
Confidentiality and Non-Competitions. 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.
(ccc)
Cybersecurity. The Company and its subsidiaries’ information technology assets and equipment, computers, systems,
networks, hardware, software, websites, applications, and databases (collectively, “IT Systems”) operate and
perform in all material respects as required in connection with the operation of the business of the Company and its subsidiaries
as currently conducted, and to the Company’s knowledge are free and clear of all material Trojan horses, time bombs, malware
and other malicious code. The Company and its subsidiaries have implemented and maintained commercially reasonable safeguards
designed to maintain and protect their material confidential information and the integrity, availability, privacy and security
of the IT Systems and data, including Personal Data, used in connection with their businesses. “Personal Data”
means (i) a natural persons’ name, street address, telephone number, email address, photograph, social security number,
bank information, or customer or account number; (ii) any information which would qualify as “personally identifying information”
under the Federal Trade Commission Act, as amended; (iii) Protected Health Information as defined by HIPAA; (iv) “personal
data” as defined by GDPR; and (v) any other piece of information that allows the identification of such natural person,
or his or her family, or permits the collection or analysis of any data related to an identified person’s health or sexual
orientation. To the Company’s knowledge, there have been no breaches, violations, outages or unauthorized uses of or accesses
to same, except for those that have been remedied without material cost or liability or the duty to notify a governmental authority
or any other person. The Company and its subsidiaries are presently in material compliance with all applicable laws or statutes
and all judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority, internal
policies and contractual obligations relating to the privacy and security of IT Systems and Personal Data and to the protection
of such IT Systems and Personal Data from unauthorized use, access, misappropriation or modification.
(ddd)
Compliance with Data Privacy Laws. The Company and its subsidiaries are, and at all prior times were, in material compliance
with all applicable state and federal data privacy and security laws and regulations, including without limitation HIPAA, and
the European Union General Data Protection Regulation (“GDPR”) (EU 2016/679) (collectively, the “Privacy
Laws”). To ensure compliance with the Privacy Laws, the Company and its subsidiaries have in place, comply with, and
take appropriate steps reasonably designed to ensure compliance in all material respects with their policies and procedures relating
to data privacy and security and the collection, storage, use, disclosure, handling, and analysis of Personal Data (the “Policies”).
The Company and its subsidiaries have at all times made all disclosures to users or customers required by applicable laws and
regulatory rules or requirements, and none of such disclosures made or contained in any Policy have, to the knowledge of the Company,
been inaccurate or in violation of any applicable laws and regulatory rules or requirements in any material respect. The Company
further certifies that neither it nor any subsidiary: (i) has received notice of any actual or potential liability under or relating
to, or actual or potential violation of, any of the Privacy Laws, and has no knowledge of any event or condition that would reasonably
be expected to result in any such notice; (ii) is currently conducting or paying for, in whole or in part, any investigation,
remediation, or other corrective action pursuant to any Privacy Law; or (iii) is a party to any order, decree, or agreement that
imposes any obligation or liability under any Privacy Law.
Any
certificate signed by an officer of the Company and delivered to the Sales Agent or to counsel for the Sales Agent pursuant to
or in connection with this Agreement shall be deemed to be a representation and warranty by the Company to the Sales Agent as
to the matters set forth therein.
The
Company acknowledges that the Sales Agent and, for purposes of the opinions to be delivered pursuant to Section 7
hereof, counsel to the Company and counsel to the Sales Agent, will rely upon the accuracy and truthfulness of the foregoing representations
and hereby consents to such reliance.
7.
Covenants of the Company. The Company covenants and agrees with the Sales Agent that:
(a)
Registration Statement Amendments. After the date of this Agreement and during any period in which a Prospectus relating
to any Placement Shares is required to be delivered by the Sales Agent under the Securities Act (including in circumstances where
such requirement may be satisfied pursuant to Rule 153 or Rule 172 under the Securities Act), (i) the Company will
notify the Sales Agent promptly of the time when any subsequent amendment to the Registration Statement, other than documents
incorporated by reference, has been filed with the Commission and/or has become effective or any subsequent supplement to the
Prospectus has been filed and of any request by the Commission for any amendment or supplement to the Registration Statement or
Prospectus or for additional information; (ii) the Company will prepare and file with the Commission, promptly upon the Sales
Agent’s reasonable request, any amendments or supplements to the Registration Statement or Prospectus that, in the Sales
Agent’s reasonable opinion, may be necessary or advisable in connection with the distribution of the Placement Shares by
the Sales Agent (provided, however, that the failure of the Sales Agent to make such request shall not relieve the
Company of any obligation or liability hereunder, or affect the Sales Agent’s right to rely on the representations and warranties
made by the Company in this Agreement, and provided, further, that the only remedy the Sales Agent shall have with
respect to the failure to make such filing shall be to cease making sales under this Agreement until such amendment or supplement
is filed); (iii) the Company will not file any amendment or supplement to the Registration Statement or Prospectus, other
than documents incorporated by reference, relating to the Placement Shares or a security convertible into the Placement Shares
unless a copy thereof has been submitted to the Sales Agent within a reasonable period of time before the filing and the Sales
Agent has not reasonably objected thereto (provided, however, that the failure of the Sales Agent to make such objection
shall not relieve the Company of any obligation or liability hereunder, or affect the Sales Agent’s right to rely on the
representations and warranties made by the Company in this Agreement, and provided, further, that the only remedy
the Sales Agent shall have with respect to the failure by the Company to obtain such consent shall be to cease making sales under
this Agreement); (iv) the Company will furnish to the Sales Agent at the time of filing thereof a copy of any document that
upon filing is deemed to be incorporated by reference into the Registration Statement or Prospectus, except for those documents
available via EDGAR; and (v) the Company will cause each amendment or supplement to the Prospectus, other than documents
incorporated by reference, to be filed with the Commission as required pursuant to the applicable paragraph of Rule 424(b)
of the Securities Act (without reliance on Rule 424(b)(8) of the Securities Act) or, in the case of any documents incorporated
by reference, to be filed with the Commission as required pursuant to the Exchange Act, within the time period prescribed.
(b)
Notice of Commission Stop Orders. The Company will advise the Sales Agent, promptly after it receives notice or obtains
knowledge thereof, of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement
or any notice objecting to, or other order preventing or suspending the use of, the Prospectus, of the suspension of the qualification
of the Placement Shares for offering or sale in any jurisdiction, or of the initiation of any proceeding for any such purpose
or any examination pursuant to Section 8(e) of the Securities Act, or if the Company becomes the subject of a proceeding
under Section 8A of the Securities Act in connection with the offering of the Placement Shares; and it will promptly use
its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal if such a stop order
should be issued. Until such time as any stop order is lifted, the Sales Agent shall cease making offers and sales under this
Agreement.
(c)
Delivery of Prospectus; Subsequent Changes. During any period in which a Prospectus relating to the Placement Shares is
required to be delivered by the Sales Agent under the Securities Act with respect to a pending sale of the Placement Shares (including
in circumstances where such requirement may be satisfied pursuant to Rule 153 or Rule 172 under the Securities Act),
the Company will comply in all material respects with all requirements imposed upon it by the Securities Act, as from time to
time in force, and to file on or before their respective due dates all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14, 15(d) or any other provision
of or under the Exchange Act. If during such period any event occurs as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances then existing, not misleading, or if during such period it is necessary to amend or supplement
the Registration Statement or Prospectus to comply with the Securities Act, the Company will promptly notify the Sales Agent to
suspend the offering of Placement Shares during such period and the Company will promptly amend or supplement the Registration
Statement or Prospectus (at the expense of the Company) so as to correct such statement or omission or effect such compliance;
provided, however, that the Company may delay any such amendment or supplement if, in the reasonable judgment of
the Company, it is in the best interests of the Company to do so.
(d)
Listing of Placement Shares. During any period in which the Prospectus relating to the Placement Shares is required to
be delivered by the Sales Agent under the Securities Act with respect to a pending sale of the Placement Shares (including in
circumstances where such requirement may be satisfied pursuant to Rule 153 or Rule 172 under the Securities Act), the
Company will use its commercially reasonable efforts to cause the Placement Shares to be listed on the Exchange and to qualify
the Placement Shares for sale under the securities laws of such jurisdictions as the Sales Agent reasonably designates and to
continue such qualifications in effect so long as required for the distribution of the Placement Shares; provided, however,
that the Company shall not be required in connection therewith to qualify as a foreign corporation or dealer in securities or
file a general consent to service of process in any jurisdiction.
(e)
Delivery of Registration Statement and Prospectus. The Company will furnish to the Sales Agent and its counsel (at the
expense of the Company) copies of the Registration Statement, the Prospectus (including all documents incorporated by reference
therein) and all amendments and supplements to the Registration Statement or Prospectus that are filed with the Commission during
any period in which a Prospectus relating to the Placement Shares is required to be delivered under the Securities Act (including
all documents filed with the Commission during such period that are deemed to be incorporated by reference therein), in each case
as soon as reasonably practicable and in such quantities as the Sales Agent may from time to time reasonably request and, at the
Sales Agent’s request, will also furnish copies of the Prospectus to each exchange or market on which sales of the Placement
Shares may be made; provided, however, that the Company shall not be required to furnish any document (other than
the Prospectus) to the Sales Agent to the extent such document is available on EDGAR.
(f)
Earnings Statement. The Company will make generally available to its security holders as soon as practicable, but in any
event not later than 15 months after the end of the Company’s current fiscal quarter, an earnings statement of the Company
(which need not be audited) covering a 12-month period that complies with Section 11(a) and Rule 158 of the Securities
Act. The terms “earnings statement” and “make generally available to its security holders” shall have
the meanings set forth in Rule 158 under the Securities Act.
(g)
Expenses. The Company, whether or not the transactions contemplated hereunder are consummated or this Agreement is terminated
in accordance with the provisions of Section 11 hereunder, will pay the following expenses all incident to the performance
of its obligations hereunder, including, but not limited to, expenses relating to (i) the preparation, printing and filing
of the Registration Statement and each amendment and supplement thereto, of each Prospectus and of each amendment and supplement
thereto, (ii) the preparation, issuance and delivery of the Placement Shares, including any stock or other transfer taxes
and any stamp or other duties payable upon the sale, issuance or delivery of the Placement Shares to the Sales Agent, (iii) the
fees and disbursements of the counsel, accountants and other advisors to the Company in connection with the transactions contemplated
by this Agreement; (iv) the qualification of the Placement Shares under securities laws in accordance with the provisions
of Section 7(d) of this Agreement, including filing fees (provided, however, that any fees or disbursements
of counsel for the Sales Agent in connection therewith shall be paid by the Sales Agent except as set forth in (ix) below), (v) the
printing and delivery to the Sales Agent of copies of the Prospectus and any amendments or supplements thereto, and of this Agreement,
(vi) the fees and expenses incurred in connection with the listing or qualification of the Placement Shares for trading on
the Exchange, (vii) the fees and expenses of the transfer agent or registrar for the Common Stock; (viii) filing fees
and expenses, if any, of the Commission and the FINRA Corporate Financing Department (provided, however, that any
fees or disbursements of counsel for the Sales Agent in connection therewith shall be paid by the Sales Agent except as set forth
in (ix) below) and (ix) the Company shall reimburse the Sales Agent for its reasonable and documented out-of-pocket expenses
(including but not limited to the reasonable and documented fees and expenses of counsel to the Sales Agent) in an amount not
to exceed $40,000.
(h)
Use of Proceeds. The Company will use the Net Proceeds as described in the Prospectus in the section entitled “Use
of Proceeds.”
(i)
Notice of Other Sales. The Company (I) shall provide the Sales Agent notice as promptly as reasonably possible before it
offers to sell, contracts to sell, sells, grants any option to sell or otherwise disposes of any shares of Common Stock (other
than Placement Shares offered pursuant to the provisions of this Agreement) or securities convertible into or exchangeable for
Common Stock, or warrants or any rights to purchase or acquire Common Stock, during the period beginning on the fifth (5th)
Trading Day immediately prior to the date on which any Placement Notice is delivered to the Sales Agent hereunder and ending on
the fifth (5th) Trading Day immediately following the final Settlement Date with respect to Placement Shares sold pursuant
to such Placement Notice (or, if the Placement Notice has been terminated or suspended prior to the sale of all Placement Shares
covered by a Placement Notice, the fifth (5th) Trading Day immediately following the date of such suspension or termination),
and (II) will not directly or indirectly in any other “at-the-market” or continuous equity transaction offer to sell,
sell, contract to sell, grant any option to sell or otherwise dispose of any shares of Common Stock (other than the Placement
Shares offered pursuant to this Agreement) or securities convertible into or exchangeable for shares of Common Stock, warrants
or any rights to purchase or acquire, shares of Common Stock prior to the termination of this Agreement; provided, however,
that such notice requirements or restrictions, as the case may be, will not be required in connection with the Company’s
issuance or sale of (i) shares of Common Stock, options to purchase shares of Common Stock, other equity awards or shares
of Common Stock issuable upon the exercise of options or other equity awards, pursuant to any employee or director stock option
or benefits plan, stock ownership plan or dividend reinvestment plan of the Company whether now in effect or hereafter implemented,
(ii) shares of Common Stock issuable upon exchange, conversion or redemption of securities or the exercise of warrants, options
or other rights in effect or outstanding, and disclosed in filings by the Company available on EDGAR or otherwise in writing (including
by email correspondence) to the Sales Agent and (iii) shares of Common Stock or securities convertible into or exchangeable for
shares of Common Stock as consideration for mergers, acquisitions, sale or purchase of assets or other business combinations or
strategic alliances occurring after the date of this Agreement which are not issued for capital raising purposes. Notwithstanding
the foregoing, the Company shall provide the Sales Agent notice at least two (2) days prior to pursuing any private or public
offerings of equity and/or other securities (including debt securities) in one or more transactions.
(j)
Change of Circumstances. The Company will, at any time during a fiscal quarter in which the Company intends to tender a
Placement Notice or sell Placement Shares, advise the Sales Agent promptly after it shall have received notice or obtained knowledge
thereof, of any information or fact that would alter or affect in any material respect any opinion, certificate, letter or other
document provided to the Sales Agent pursuant to this Agreement.
(k)
Due Diligence Cooperation. The Company will cooperate with any reasonable due diligence review conducted by the Sales Agent
or its agents in connection with the transactions contemplated hereby, including, without limitation, providing information and
making available documents and senior corporate officers, during regular business hours and at the Company’s principal offices,
as the Sales Agent may reasonably request.
(l)
Required Filings Relating to Placement of Placement Shares. The Company shall set forth in each Annual Report on Form 10-K
and Quarterly Report on Form 10-Q filed by the Company with the Commission in respect of any quarter in which sales of Placement
Shares were made by or through the Sales Agent under this Agreement, with regard to the relevant period, the amount of Placement
Shares sold to or through the Sales Agent, the Net Proceeds to the Company and the compensation payable by the Company to the
Sales Agent with respect to such sales of Placement Shares. To the extent that the filing of a prospectus supplement with the
Commission with respect to any sales of Placement Shares becomes required under Rule 424(b) under the Securities Act, the
Company agrees that, on or before such dates as the Securities Act shall require, the Company will (i) file a prospectus
supplement with the Commission under the applicable paragraph of Rule 424(b) under the Securities Act, which prospectus supplement
will set forth, with regard to the relevant period, the amount of Placement Shares sold to or through the Sales Agent, the Net
Proceeds to the Company and the compensation payable by the Company to the Sales Agent with respect to such Placement Shares,
and (ii) deliver such number of copies of each such prospectus supplement to each exchange or market on which such sales
were effected as may be required by the rules or regulations of such exchange or market. The Company shall afford the Sales Agent
and its counsel with a reasonable opportunity to review and comment upon, shall consult with the Sales Agent and its counsel on
the form and substance of, and shall give due consideration to all such comments from the Sales Agent or its counsel on, any such
filing prior to the issuance, filing or public disclosure thereof; provided, however, that the Company shall not be required to
submit for review (A) any portion of any periodic reports filed with the Commission under the Exchange Act other than the
specific disclosure relating to any sales of Placement Shares and (B) any disclosure contained in periodic reports filed
with the Commission under the Exchange Act if it shall have previously provided the same disclosure for review in connection with
a previous filing.
(m)
Representation Dates; Certificate. On or prior to the date the first Placement Notice is given hereunder and each time
the Company (i) files the Prospectus relating to the Placement Shares or amends or supplements the Registration Statement
or the Prospectus relating to the Placement Shares (other than (A) a prospectus supplement filed in accordance with Section 7(l)
of this Agreement or (B) a supplement or amendment that relates to an offering of securities other than the Placement
Shares) by means of a post-effective amendment, sticker, or supplement but not by means of incorporation of document(s) by reference
to the Registration Statement or the Prospectus relating to the Placement Shares; (ii) files an annual report on Form 10-K
under the Exchange Act (including any Form 10-K/A containing amended financial information or a material amendment to the previously
filed Form 10-K); (iii) files a quarterly report on Form 10-Q under the Exchange Act; or (iv) files a current report
on Form 8-K containing amended financial information (other than an earnings release, to “furnish” information pursuant
to Items 2.02 or 7.01 of Form 8-K or to provide disclosure pursuant to Item 8.01 of Form 8-K relating to the reclassification
of certain properties as discontinued operations in accordance with Statement of Financial Accounting Standards No. 144) under
the Exchange Act (each date of filing of one or more of the documents referred to in clauses (i) through (iv) shall be a
“Representation Date”), the Company shall furnish the Sales Agent within three (3) Trading Days after
each Representation Date with a certificate, in the form attached hereto as Exhibit 7(m). The requirement to provide
a certificate under this Section 7(m) shall be waived for any Representation Date occurring at a time at which no
Placement Notice is pending, which waiver shall continue until the earlier to occur of the date the Company delivers a Placement
Notice hereunder (which for such calendar quarter shall be considered a Representation Date) and the next occurring Representation
Date; provided, however, that such waiver shall not apply for any Representation Date on which the Company files
its annual report on Form 10-K. Notwithstanding the foregoing, if the Company subsequently decides to sell Placement Shares following
a Representation Date when the Company relied on such waiver and did not provide the Sales Agent with a certificate under this
Section 7(m), then before the Company delivers the Placement Notice or the Sales Agent sells any Placement Shares,
the Company shall provide the Sales Agent with a certificate, in the form attached hereto as Exhibit 7(m), dated the
date of the Placement Notice.
(n)
Legal Opinion. On or prior to the date the first Placement Notice is given hereunder, the Company shall cause to be furnished
to the Sales Agent (i) the written opinion and negative assurance of Lowenstein Sandler LLP, as counsel to the Company, or other
counsel reasonably satisfactory to the Sales Agent (“SEC Counsel”), (ii) the written opinion and negative
assurance of Haley Giuliano LLP, intellectual property counsel to the Company, or other counsel reasonably satisfactory to the
Sales Agent (“Intellectual Property Counsel”), and (iii) the written opinion of Brownstein Hyatt Farber
Schreck, LLP, as local Nevada counsel to the Company (“Nevada Counsel” and, together with SEC Counsel
and Intellectual Property Counsel, “Company Counsel”), in each case substantially in the forms previously
agreed between the Company and the Sales Agent. Thereafter, within three (3) Trading Days after each Representation Date with
respect to which the Company is obligated to deliver a certificate pursuant to Section 7(m) for which no waiver is
applicable pursuant to Section 7(m), and not more than once per calendar quarter, the Company shall cause to be furnished
to the Sales Agent the written opinion and negative assurance of each Company Counsel substantially in the forms previously agreed
between the Company and the Sales Agent, modified, as necessary, to relate to the Registration Statement and the Prospectus as
then amended or supplemented; provided, however, that if each Company Counsel has previously furnished to the Sales
Agent such written opinion and negative assurance of such counsel, in each case substantially in the forms previously agreed between
the Company and the Sales Agent, then each Company Counsel may, in respect of any future Representation Date, furnish the Sales
Agent with a letter signed by such counsel (each, a “Reliance Letter”) in lieu of such opinion and negative
assurance of such counsel to the effect that the Sales Agent may rely on the prior opinion and negative assurance of such counsel
delivered pursuant to this Section 7(n) to the same extent as if it were dated the date of such Reliance Letter (except
that statements in such prior opinion and negative assurance shall be deemed to relate to the Registration Statement and the Prospectus
as amended or supplemented to the date of such Reliance Letter).
(o)
Comfort Letter. On or prior to the date the first Placement Notice is given hereunder and within three (3) Trading Days
after each subsequent Representation Date with respect to which the Company is obligated to deliver a certificate pursuant
to Section 7(m) for which no waiver is applicable pursuant to Section 7(m), other than a Representation
Date under Section 7(m)(iii) or Section 7(m)(iv) unless with respect to a Representation Date
under Section 7(m)(iv) the Sales Agent reasonably requests delivery thereof, the Company shall cause
its independent accountants to furnish the Sales Agent letters (the “Comfort Letters”), dated
the date that the Comfort Letter is delivered, in form and substance satisfactory to the Sales Agent, (i) confirming
that they are an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and
the rules and regulations of the PCAOB and are in compliance with the applicable requirements relating to the qualification of
accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of such date, the conclusions and
findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort
letters” to the Sales Agent in connection with registered public offerings (the first such letter, the “Initial
Comfort Letter”) and (iii) updating the Initial Comfort Letter with any information that would have been included
in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement
and the Prospectus, as amended and supplemented to the date of such letter.
(p)
Market Activities. The Company will not, directly or indirectly, (i) take any action designed to cause or result in,
or that constitutes or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security
of the Company to facilitate the sale or resale of the Common Stock or (ii) sell, bid for, or purchase shares of Common Stock
in violation of Regulation M, or pay anyone any compensation for soliciting purchases of the Placement Shares other than the Sales
Agent.
(q)
Insurance. The Company shall maintain insurance in such amounts and covering such risks as is reasonable and customary
for the business in which it is engaged.
(r)
Investment Company Act. The Company will conduct its affairs in such a manner so as to reasonably ensure that it is not
and, after giving effect to the offering and sale of the Placement Shares and the application of proceeds therefrom as described
in the Prospectus, will not be, an “investment company” within the meaning of such term under the Investment Company
Act.
(s)
Securities Act and Exchange Act. The Company will use its reasonable best efforts to comply with all requirements imposed
upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance
of sales of, or dealings in, the Placement Shares as contemplated by the provisions hereof and the Prospectus.
(t)
No Offer to Sell. Other than the Prospectus and an Issuer Free Writing Prospectus approved in advance by the Company and
the Sales Agent in its capacity as principal or agent hereunder, neither the Sales Agent nor the Company (including its agents
and representatives, other than the Sales Agent in its capacity as such) will make, use, prepare, authorize, approve or refer
to any written communication (as defined in Rule 405 under the Securities Act), required to be filed with the Commission,
that constitutes an offer to sell or solicitation of an offer to buy Placement Shares hereunder.
(u)
Sarbanes-Oxley Act. The Company will use its reasonable best efforts to comply with all effective applicable provisions
of the Sarbanes-Oxley Act.
(v)
Transfer Agent. The Company shall maintain, at its sole expense, a registrar and transfer agent for the Common Stock.
8.
Conditions to the Sales Agent’s Obligations. The obligations of the Sales Agent hereunder with respect to a Placement
will be subject to the continuing accuracy and completeness of the representations and warranties made by the Company herein,
to the due performance by the Company of its obligations hereunder, to the completion by the Sales Agent of a due diligence review
satisfactory to the Sales Agent in its reasonable judgment, and to the continuing satisfaction (or waiver by the Sales Agent in
its sole discretion) of the following additional conditions:
(a)
Registration Statement Effective. The Registration Statement shall be effective and shall be available for the sale of
all Placement Shares contemplated to be issued by any Placement Notice.
(b)
Securities Act Filings Made. The Company shall have filed with the Commission the ATM Prospectus pursuant to Rule 424(b)
under the Securities Act not later than the Commission’s close of business on the second Business Day following the date
of this Agreement. All other filings with the Commission required by Rule 424(b) or Rule 433 under the Securities Act
to have been filed prior to the issuance of any Placement Notice hereunder shall have been made within the applicable time period
prescribed for such filing by Rule 424(b) (without reliance on Rule 424(b)(8) of the Securities Act) or Rule 433,
as applicable.
(c)
No Material Notices. None of the following events shall have occurred and be continuing: (i) receipt by the Company
of any request for additional information from the Commission or any other federal or state governmental authority during the
period of effectiveness of the Registration Statement, the response to which would require any post-effective amendments or supplements
to the Registration Statement or the Prospectus; (ii) the issuance by the Commission or any other federal or state governmental
authority of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for
that purpose; (iii) receipt by the Company of any notification with respect to the suspension of the qualification or exemption
from qualification of any of the Placement Shares for sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose; (iv) the occurrence of any event that makes any material statement made in the Registration Statement or
the Prospectus or any material document incorporated or deemed to be incorporated therein by reference untrue in any material
respect or that requires the making of any changes in the Registration Statement, related Prospectus or such documents so that,
in the case of the Registration Statement, it will not contain any materially untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the statements therein not misleading and, that in the case
of the Prospectus, it will not contain any materially 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 the light of the circumstances under which they were made,
not misleading.
(d)
No Misstatement or Material Omission. The Sales Agent shall not have advised the Company that the Registration Statement
or Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact that in the Sales Agent’s reasonable
opinion is material, or omits to state a fact that in the Sales Agent’s reasonable opinion is material and is required to
be stated therein or is necessary to make the statements therein not misleading.
(e)
Material Changes. Except as contemplated in the Prospectus, or disclosed in the Company’s reports filed with the
Commission, there shall not have been any material adverse change in the authorized capital stock of the Company or any Material
Adverse Change or any development that could reasonably be expected to result in a Material Adverse Change, the effect of which,
in the case of any such action by a rating organization described above, in the reasonable judgment of the Sales Agent (without
relieving the Company of any obligation or liability it may otherwise have), is so material as to make it impracticable or inadvisable
to proceed with the offering of the Placement Shares on the terms and in the manner contemplated by this Agreement and the Prospectus.
(f) Representation
Certificate. The Sales Agent shall have received the certificate required to be delivered pursuant to Section 7(m)
on or before the date on which delivery of such certificate is required pursuant to Section 7(m).
(g)
Legal Opinions. The Sales Agent shall have received the opinion and negative assurance of each Company Counsel required
to be delivered pursuant Section 7(n) on or before the date on which such delivery of such opinion and negative assurance
is required pursuant to Section 7(n).
(h) Comfort
Letter. The Sales Agent shall have received the Comfort Letter required to be delivered pursuant Section 7(o) on or
before the date on which such delivery of such Comfort Letter is required pursuant to Section 7(o).
(i)
Officer’s Certificate. On or prior to the date the first Placement Notice is given hereunder, the Sales Agent shall
have received a certificate, signed on behalf of the Company by its President and Chief Executive Officer, certifying as to (i) the
articles of incorporation of the Company (as the same may be amended or restated from time to time), (ii) the bylaws of the
Company (as the same may be amended or restated from time to time), (iii) the resolutions of the Board of Directors of the
Company (or a committee thereof) authorizing the execution, delivery and performance of this Agreement and the issuance of the
Placement Shares and (iv) the incumbency of the officers duly authorized to execute this Agreement and the other documents
contemplated by this Agreement.
(j)
No Suspension. Trading in the Common Stock shall not have been suspended on the Exchange and the Common Stock shall not
have been delisted from the Exchange.
(k)
Other Materials. On each date on which the Company is required to deliver a certificate pursuant to Section 7(m),
the Company shall have furnished to the Sales Agent such appropriate further opinions, certificates, letters and documents as
the Sales Agent may have reasonably requested. All such opinions, certificates, letters and other documents shall have been in
compliance with the provisions hereof. The Company will furnish the Sales Agent with such conformed copies of such opinions, certificates,
letters and other documents as the Sales Agent shall have reasonably requested.
(l)
Approval for Listing. The Placement Shares shall either have been (i) approved for listing on the Exchange, subject
only to notice of issuance, or (ii) the Company shall have filed an application for listing of the Placement Shares on the
Exchange at, or prior to, the issuance of any Placement Notice.
(m)
No Termination Event. There shall not have occurred any event that would permit the Sales Agent to terminate this Agreement
pursuant to Section 11(a).
(n)
FINRA. The Sales Agent shall have received a letter from the Corporate Financing Department of FINRA confirming that such
department has determined to raise no objection with respect to the fairness or reasonableness of the terms and arrangements related
to the sale of the Placement Shares pursuant to this Agreement.
9.
Indemnification and Contribution.
(a)
Company Indemnification. The Company agrees to indemnify and hold harmless the Sales Agent, the directors, officers, members,
partners, employees and agents of the Sales Agent each broker dealer affiliate of the Sales Agent, and each the Sales Agent Affiliate,
if any, from and against any and all losses, claims, liabilities, expenses and damages (including, but not limited to, any and
all reasonable investigative, legal and other expenses incurred in connection with, and any and all amounts paid in settlement
(in accordance with Section 9(c)) of, any action, suit or proceeding between any of the indemnified parties and any
indemnifying parties or between any indemnified party and any third party, or otherwise, or any claim asserted), as and when incurred,
to which the Sales Agent, or any such person, may become subject under the Securities Act, the Exchange Act or other federal or
state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, liabilities, expenses or damages
arise out of or are based, directly or indirectly, on (x) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or the Prospectus or any amendment or supplement thereto or in any Issuer Free Writing
Prospectus or in any application or other document executed by or on behalf of the Company or based on written information furnished
by or on behalf of the Company filed in any jurisdiction in order to qualify the Common Stock under the securities laws thereof
or filed with the Commission, (y) the omission or alleged omission to state in any such document a material fact required
to be stated in it or necessary to make the statements in it not misleading or (z) any breach by any of the indemnifying
parties of any of their respective representations, warranties and agreements contained in this Agreement; provided, however,
that this indemnity agreement shall not apply to the extent that such loss, claim, liability, expense or damage arises from the
sale of the Placement Shares pursuant to this Agreement and is caused directly by an untrue statement or omission made in reliance
upon and in strict conformity with written information relating to the Sales Agent and furnished to the Company by the Sales Agent
expressly for inclusion in any document as described in clause (x) of this Section 9(a). This indemnity agreement
will be in addition to any liability that the Company might otherwise have.
(b)
The Sales Agent Indemnification. The Sales Agent agrees to indemnify and hold harmless the Company and its directors and
each officer of the Company that signed the Registration Statement, and each person, if any, who (i) controls the Company
within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act or (ii) is controlled
by or is under common control with the Company (each, a “Company Affiliate”) from and against any and
all losses, claims, liabilities, expenses and damages (including, but not limited to, any and all reasonable investigative, legal
and other expenses incurred in connection with, and any and all amounts paid in settlement (in accordance with Section 9(c))
of, any action, suit or proceeding between any of the indemnified parties and any indemnifying parties or between any indemnified
party and any third party, or otherwise, or any claim asserted), as and when incurred, to which any such Company Affiliate, may
become subject under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law
or otherwise, insofar as such losses, claims, liabilities, expenses or damages arise out of or are based, directly or indirectly,
on (x) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or the
Prospectus or any amendment or supplement thereto, or (y) the omission or alleged omission to state in any such document
a material fact required to be stated in it or necessary to make the statements in it not misleading; provided, however,
that this indemnity agreement shall apply only to the extent that such loss, claim, liability, expense or damage is caused directly
by an untrue statement or omission made in reliance upon and in strict conformity with written information relating to the Sales
Agent and furnished to the Company by the Sales Agent expressly for inclusion in any document as described in clause (x)
of this Section 9(b).
(c)
Procedure. Any party that proposes to assert the right to be indemnified under this Section 9 will, promptly
after receipt of notice of commencement of any action against such party in respect of which a claim is to be made against an
indemnifying party or parties under this Section 9, notify each such indemnifying party of the commencement of such
action, enclosing a copy of all papers served, but the omission so to notify such indemnifying party will not relieve the indemnifying
party from (i) any liability that it might have to any indemnified party otherwise than under this Section 9 and
(ii) any liability that it may have to any indemnified party under the foregoing provision of this Section 9 unless,
and only to the extent that, such omission results in the forfeiture of substantive rights or defenses by the indemnifying party.
If any such action is brought against any indemnified party and it notifies the indemnifying party of its commencement, the indemnifying
party will be entitled to participate in and, to the extent that it elects by delivering written notice to the indemnified party
promptly after receiving notice of the commencement of the action from the indemnified party, jointly with any other indemnifying
party similarly notified, to assume the defense of the action, with counsel reasonably satisfactory to the indemnified party,
and after notice from the indemnifying party to the indemnified party of its election to assume the defense, the indemnifying
party will not be liable to the indemnified party for any legal or other expenses except as provided below and except for the
reasonable costs of investigation subsequently incurred by the indemnified party in connection with the defense. The indemnified
party will have the right to employ its own counsel in any such action, but the fees, expenses and other charges of such counsel
will be at the expense of such indemnified party unless (1) the employment of counsel by the indemnified party has been authorized
in writing by the indemnifying party, (2) the indemnified party has reasonably concluded (based on advice of counsel) that there
may be legal defenses available to it or other indemnified parties that are different from or in addition to those available to
the indemnifying party, (3) a conflict or potential conflict exists (based on advice of counsel to the indemnified party) between
the indemnified party and the indemnifying party (in which case the indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party) or (4) the indemnifying party has not in fact employed counsel to assume the
defense of such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases
the reasonable fees, disbursements and other charges of counsel will be at the expense of the indemnifying party or parties. It
is understood that the indemnifying party or parties shall not, in connection with any proceeding or related proceedings in the
same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm admitted
to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other
charges will be reimbursed by the indemnifying party promptly as they are incurred. An indemnifying party will not, in any event,
be liable for any settlement of any action or claim effected without its written consent. No indemnifying party shall, without
the prior written consent of each indemnified party, settle or compromise or consent to the entry of any judgment in any pending
or threatened claim, action or proceeding relating to the matters contemplated by this Section 9 (whether or not any
indemnified party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each
indemnified party from all liability arising or that may arise out of such claim, action or proceeding.
(d)
Contribution. In order to provide for just and equitable contribution in circumstances in which the indemnification provided
for in the foregoing paragraphs of this Section 9 is applicable in accordance with its terms but for any reason is
held to be unavailable from the Company or the Sales Agent, the Company and the Sales Agent will contribute to the total losses,
claims, liabilities, expenses and damages (including any investigative, legal and other expenses reasonably incurred in connection
with, and any amount paid in settlement of, any action, suit or proceeding or any claim asserted, but after deducting any contribution
received by the Company from persons other than the Sales Agent, such as persons who control the Company within the meaning of
the Securities Act, officers of the Company who signed the Registration Statement and directors of the Company, who also may be
liable for contribution) to which the Company and the Sales Agent may be subject in such proportion as shall be appropriate to
reflect the relative benefits received by the Company on the one hand and the Sales Agent on the other. The relative benefits
received by the Company on the one hand and the Sales Agent on the other hand shall be deemed to be in the same proportion as
the total Net Proceeds from the sale of the Placement Shares (before deducting expenses) received by the Company bear to the total
compensation received by the Sales Agent from the sale of Placement Shares on behalf of the Company. If, but only if, the allocation
provided by the foregoing sentence is not permitted by applicable law, the allocation of contribution shall be made in such proportion
as is appropriate to reflect not only the relative benefits referred to in the foregoing sentence but also the relative fault
of the Company, on the one hand, and the Sales Agent, on the other, with respect to the statements or omission that resulted in
such loss, claim, liability, expense or damage, or action in respect thereof, as well as any other relevant equitable considerations
with respect to such offering. Such relative fault shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information
supplied by the Company or the Sales Agent, the intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and the Sales Agent agree that it would not be just
and equitable if contributions pursuant to this Section 9(d) were to be determined by pro rata allocation or by any
other method of allocation that does not take into account the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim, liability, expense, or damage, or action in respect thereof, referred
to above in this Section 9(d) shall be deemed to include, for the purpose of this Section 9(d), any legal
or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action
or claim to the extent consistent with Section 9(c) hereof. Notwithstanding the foregoing provisions of this Section 9(d),
the Sales Agent shall not be required to contribute any amount in excess of the commissions received by it under this Agreement
and no person found guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) will
be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 9(d),
any person who controls a party to this Agreement within the meaning of the Securities Act will have the same rights to contribution
as that party (and any officers, directors, members, partners, employees or agents of the Sales Agent and each broker dealer affiliate
of the Sales Agent will have the same rights to contribution as the Sales Agent), and each officer of the Company who signed the
Registration Statement and each director of the Company will have the same rights to contribution as the Company, subject in each
case to the provisions hereof. Any party entitled to contribution, promptly after receipt of notice of commencement of any action
against such party in respect of which a claim for contribution may be made under this Section 9(d), will notify any
such party or parties from whom contribution may be sought, but the omission to so notify will not relieve that party or parties
from whom contribution may be sought from any other obligation it or they may have under this Section 9(d) except
to the extent that the failure to so notify such other party materially prejudiced the substantive rights or defenses of the party
from whom contribution is sought. Except for a settlement entered into pursuant to the last sentence of Section 9(c)
hereof, no party will be liable for contribution with respect to any action or claim settled without its written consent if such
consent is required pursuant to Section 9(c) hereof.
10.
Representations and Agreements to Survive Delivery. The indemnity and contribution agreements contained in Section 9
of this Agreement and all representations and warranties of the Company herein or in certificates delivered pursuant hereto
shall survive, as of their respective dates, regardless of (i) any investigation made by or on behalf of the Sales Agent,
any controlling person of the Sales Agent, or the Company (or any of their respective officers, directors, members or controlling
persons), (ii) delivery and acceptance of the Placement Shares and payment therefor or (iii) any termination of this
Agreement.
11.
Termination.
(a)
The Sales Agent shall have the right by giving notice as hereinafter specified at any time to terminate this Agreement if (i) any
Material Adverse Change, or any development that could reasonably be expected to result in a Material Adverse Change has occurred
that, in the reasonable judgment of the Sales Agent, may materially impair the ability of the Sales Agent to sell the Placement
Shares hereunder, (ii) the Company shall have failed, refused or been unable to perform any agreement on its part to be performed
hereunder; provided, however, in the case of any failure of the Company to deliver (or cause another person to deliver)
any certification, opinion, or letter required under Sections 7(m), 7(n), 7(o) or 7(p), the Sales
Agent’s right to terminate shall not arise unless such failure to deliver (or cause to be delivered) continues for more
than thirty (30) days from the date such delivery was required, (iii) any other condition of the Sales Agent’s obligations
hereunder is not fulfilled, or (iv) any suspension or limitation of trading in the Placement Shares or in securities generally
on the Exchange shall have occurred (including automatic halt in trading pursuant to market-decline triggers, other than those
in which solely program trading is temporarily halted), or a major disruption of securities settlements or clearing services in
the United States shall have occurred, or minimum prices for trading have been fixed on the Exchange. Any such termination shall
be without liability of any party to any other party except that the provisions of Section 7(g) (Expenses), Section 9
(Indemnification and Contribution), Section 10 (Representations and Agreements to Survive Delivery), Section 11(f),
Section 16 (Applicable Law; Consent to Jurisdiction) and Section 17 (Waiver of Jury Trial) hereof shall
remain in full force and effect notwithstanding such termination. If the Sales Agent elects to terminate this Agreement as provided
in this Section 11(a), the Sales Agent shall provide the required notice as specified in Section 12 (Notices).
(b)
The Company shall have the right, by giving ten (10) days’ notice as hereinafter specified in Section 12, to
terminate this Agreement in its sole discretion at any time after the date of this Agreement. Any such termination shall be without
liability of any party to any other party except that the provisions of Section 7(g), Section 9, Section 10,
Section 11(f), Section 16 and Section 17 hereof shall remain in full force and effect notwithstanding
such termination.
(c)
The Sales Agent shall have the right, by giving ten (10) days’ notice as hereinafter specified in Section 12,
to terminate this Agreement in its sole discretion at any time after the date of this Agreement. Any such termination shall be
without liability of any party to any other party except that the provisions of Section 7(g), Section 9,
Section 10, Section 11(f), Section 16 and Section 17 hereof shall remain in full
force and effect notwithstanding such termination.
(d)
Unless earlier terminated pursuant to this Section 11, this Agreement shall automatically terminate upon the earlier
to occur of (i) issuance and sale of all of the Placement Shares to or through the Sales Agent on the terms and subject to the
conditions set forth herein and (ii) the expiration of the Registration Statement on the third (3rd) anniversary of
the initial effective date of the Registration Statement pursuant to Rule 415(a)(5) under the Securities Act; provided
that the provisions of Section 7(g), Section 9, Section 10, Section 11(f), Section 16 and Section 17 hereof shall remain in full force and effect notwithstanding such termination.
(e)
This Agreement shall remain in full force and effect unless terminated pursuant to Sections 11(a), (b), (c)
or (d) above or otherwise by mutual agreement of the parties; provided, however, that any such termination
by mutual agreement shall in all cases be deemed to provide that Section 7(g), Section 9, Section 10,
Section 11(f), Section 16 and Section 17 shall remain in full force and effect.
(f)
Any termination of this Agreement shall be effective on the date specified in such notice of termination; provided, however,
that such termination shall not be effective until the close of business on the date of receipt of such notice by the Sales Agent
or the Company, as the case may be. If such termination shall occur prior to the Settlement Date for any sale of Placement Shares,
such termination shall not become effective until the close of business on such Settlement Date and such Placement Shares shall
settle in accordance with the provisions of this Agreement.
12.
Notices. All notices or other communications required or permitted to be given by any party to any other party pursuant
to the terms of this Agreement shall be in writing, unless otherwise specified, and if sent to the Sales Agent, shall be delivered
to:
A.G.P./Alliance
Global Partners
590
Madison Avenue, 28th Floor
New
York, NY 10022
Attention:
Tom Higgins
Email:
atm@allianceg.com
with
a copy (which shall not constitute notice) to:
Mintz,
Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
919
Third Avenue
New
York, New York 10022
Attention: Ivan K. Blumenthal, Esq.
Facsimile: (212) 983-3115
and
if to the Company, shall be delivered to:
Tonix
Pharmaceuticals Holding Corp.
Attention:
Seth Lederman
26
Main Street, Suite 101
Chantham,
New Jersey 07928
Facsimile: (212) 923-5700
with
a copy (which shall not constitute notice) to:
Lowenstein
Sandler LLP
One Lowenstein Drive
Roseland, NJ 07068
Attention:
Michael Lerner
Facsimile:
(973) 597-2500
Each
party may change such address for notices by sending to the other party to this Agreement written notice of a new address for
such purpose. Each such notice or other communication shall be deemed given (i) when delivered personally or by verifiable
facsimile transmission (with an original to follow) on or before 4:30 p.m., New York City time, on a Business Day or, if such
day is not a Business Day, on the next succeeding Business Day, (ii) on the next Business Day after timely delivery to a
nationally-recognized overnight courier and (iii) on the Business Day actually received if deposited in the U.S. mail (certified
or registered mail, return receipt requested, postage prepaid). For purposes of this Agreement, “Business Day”
shall mean any day on which the Exchange and commercial banks in the City of New York are open for business.
An
electronic communication (“Electronic Notice”) shall be deemed written notice for purposes of this Section 12
if sent to the electronic mail address specified by the receiving party under separate cover. Electronic Notice shall be deemed
received at the time the party sending Electronic Notice receives confirmation of receipt by the receiving party (other than pursuant
to auto-reply). Any party receiving Electronic Notice may request and shall be entitled to receive the notice on paper, in a nonelectronic
form (“Nonelectronic Notice”) which shall be sent to the requesting party within ten (10) days of receipt
of the written request for Nonelectronic Notice.
13.
Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the Company and the Sales Agent
and their respective successors and permitted assigns and, as to Sections 5(b) and 9, the other indemnified
parties specified therein. References to any of the parties contained in this Agreement shall be deemed to include the successors
and permitted assigns of such party. Nothing in this Agreement, express or implied, is intended to confer upon any other person
any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.
Neither party may assign its rights or obligations under this Agreement without the prior written consent of the other party;
provided, however, that the Sales Agent may assign its rights and obligations hereunder to an affiliate of the Sales
Agent without obtaining the Company’s consent.
14.
Adjustments for Share Splits. The parties acknowledge and agree that all share-related numbers contained in this Agreement
shall be adjusted to take into account any share split, share dividend or similar event effected with respect to the Common Stock.
15.
Entire Agreement; Amendment; Severability. This Agreement (including all schedules and exhibits attached hereto and Placement
Notices issued pursuant hereto) and any other writing entered into by the parties relating to this Agreement constitutes the entire
agreement and supersedes all other prior and contemporaneous agreements and undertakings, both written and oral, among the parties
hereto with regard to the subject matter hereof. Neither this Agreement nor any term hereof may be amended except pursuant to
a written instrument executed by the Company and the Sales Agent. In the event that any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable as written by a court of competent
jurisdiction, then such provision shall be given full force and effect to the fullest possible extent that it is valid, legal
and enforceable, and the remainder of the terms and provisions herein shall be construed as if such invalid, illegal or unenforceable
term or provision was not contained herein, but only to the extent that giving effect to such provision and the remainder of the
terms and provisions hereof shall be in accordance with the intent of the parties as reflected in this Agreement.
16.
Applicable Law; Consent to Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the internal
laws of the State of New York, without regard to the principles of conflicts of laws. Each party hereby irrevocably submits to
the non-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 with any transaction contemplated hereby, and hereby irrevocably waives,
and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of
any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action
or proceeding is improper. Each party hereby irrevocably waives personal service of process and consents to process being served
in any such suit, action or proceeding by mailing a copy thereof (certified or registered mail, return receipt requested) 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 manner permitted by law.
17.
Waiver of Jury Trial. The Company and the Sales Agent each hereby irrevocably waives any right it may have to a trial by
jury in respect of any claim based upon or arising out of this Agreement or any transaction contemplated hereby.
18.
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a)
the Sales Agent is acting solely as agent in connection with the sale of the Placement Shares contemplated by this Agreement and
the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective
affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and the Sales
Agent, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective
of whether the Sales Agent has advised or is advising the Company on other matters, and the Sales Agent has no obligation to the
Company with respect to the transactions contemplated by this Agreement, except the obligations expressly set forth in this Agreement;
(b)
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)
the Sales Agent has not provided any legal, accounting, regulatory or tax advice with respect to the transactions contemplated
by this Agreement, and the Company has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed
appropriate;
(d)
the Company has been advised and is aware that the Sales Agent and its affiliates are engaged in a broad range of transactions
which may involve interests that differ from those of the Company and that the Sales Agent has no obligation to disclose such
interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship; and
(e)
the Company waives, to the fullest extent permitted by law, any claims it may have against the Sales Agent, for breach of fiduciary
duty or alleged breach of fiduciary duty and agrees that the Sales Agent shall have no liability (whether direct or indirect,
in contract, tort or otherwise) to the Company in respect of such a fiduciary claim or to any person asserting a fiduciary duty
claim on behalf of or in right of the Company, including stockholders, partners, employees or creditors of the Company.
19.
Use of Information. The Sales Agent may not provide any information gained in connection with this Agreement and the transactions
contemplated by this Agreement, including due diligence, to any third party other than its legal counsel advising it on this Agreement
unless expressly approved by the Company in writing.
20.
Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument. Delivery of an executed Agreement by one party to the other
may be made by facsimile transmission.
21.
Effect of Headings; Knowledge of the Company. The section and Exhibit headings herein are for convenience only and shall
not affect the construction hereof. All references in this Agreement to the “knowledge of the Company” or the “Company’s
knowledge” or similar qualifiers shall mean the actual knowledge of the directors and officers of the Company, after due
inquiry.
22.
Definitions. As used in this Agreement, the following term has the meaning set forth below:
(a)
“Applicable Time” means the date of this Agreement, each Representation Date, each date on which a Placement
Notice is given, each Point of Sale, and each Settlement Date.
[Remainder
of Page Intentionally Blank]
If
the foregoing correctly sets forth the understanding between the Company and the Sales Agent, please so indicate in the space
provided below for that purpose, whereupon this letter shall constitute a binding agreement between the Company and the Sales
Agent.
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Very truly yours, |
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TONIX PHARMACEUTICALS HOLDING
CORP. |
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By: |
/s/ Seth Lederman |
|
|
Name: Seth Lederman |
|
|
Title:
Chief Executive Officer |
|
ACCEPTED as of the date first-above
written: |
|
|
|
|
A.G.P./ALLIANCE GLOBAL PARTNERS |
|
|
|
|
By: |
/s/ Tom Higgins |
|
|
Name: Tom Higgins |
|
|
Title: Managing Director |
SCHEDULE 1
__________________________
Form
of Placement Notice
__________________________
From: |
Tonix Pharmaceuticals Holding
Corp. |
|
|
To: |
A.G.P./Alliance Global Partners |
|
Attention: [•] |
|
|
Subject: |
Placement Notice |
|
|
Date: |
[•], 202[•] |
Ladies
and Gentlemen:
Pursuant
to the terms and subject to the conditions contained in the Sales Agreement (the “Sales Agreement”)
between Tonix Pharmaceuticals Holding Corp., a Nevada corporation (the “Company”), and A.G.P./Alliance
Global Partners (the “Sales Agent”), dated July [ ], 2024, the Company hereby requests that the Sales
Agent sell up to [•] shares of the Company’s common stock, par value $0.001 per share (the “Placement Shares”),
at a minimum market price of $[•] per share, during the time period beginning [month, day, time] and ending [month, day,
time] [and with no more than [•] Placement Shares sold in any one Trading Day].
[The
Company may include such other sale parameters as it deems appropriate.]
Capitalized
terms used and not defined herein shall have the respective meanings assigned to them in the Sales Agreement.
SCHEDULE 2
Notice
Parties
Tonix
Pharmaceuticals Holding Corp.
Bradley
Saenger (Bradley.Saenger@tonixpharma.com)
Jessica
Morris (Jessica.Morris@tonixpharma.com)
With
copies to:
Bradley
Saenger (Bradley.Saenger@tonixpharma.com)
The
Sales Agent
Tom
Higgins (thiggins@allianceg.com)
With
copies to:
atm@allianceg.com
SCHEDULE 3
Compensation
The
Company shall pay to the Sales Agent in cash, upon each sale of Placement Shares through the Sales Agent pursuant to this Agreement,
an amount equal to 3.00% of the aggregate gross proceeds from each sale of Placement Shares.*
* The
foregoing rate of compensation shall not apply when the Sales Agent purchases Placement Shares on a principal basis, in which
case the Company may sell the Placement Shares to the Sales Agent as principal at a price to be mutually agreed upon by the Company
and the Sales Agent at the relevant Point of Sale pursuant to the applicable Placement Notice (it being hereby acknowledged and
agreed that the Sales Agent shall be under no obligation to purchase Placement Shares on a principal basis pursuant to the Sales
Agreement, except as otherwise agreed by the Sales Agent and the Company in writing and expressly set forth in a Placement Notice).
Exhibit
7(m)
OFFICER
CERTIFICATE
The
undersigned, the duly qualified and appointed _____________________ of Tonix Pharmaceuticals Holding Corp., a Nevada corporation
(the “Company”), does hereby certify in such capacity and on behalf of the Company, pursuant to Section 7(m)
of the Sales Agreement, dated July [ ], 2024 (the “Sales Agreement”), between the Company and
A.G.P./Alliance Global Partners, that:
| (i) | the
representations and warranties of the Company in Section 6 of the Sales Agreement
(A) to the extent such representations and warranties are subject to qualifications
and exceptions contained therein relating to materiality or Material Adverse Change,
are true and correct on and as of the date hereof with the same force and effect as if
expressly made on and as of the date hereof, except for those representations and warranties
that speak solely as of a specific date and which were true and correct as of such date,
and (B) to the extent such representations and warranties are not subject to any
qualifications or exceptions, are true and correct in all material respects as of the
date hereof as if made on and as of the date hereof with the same force and effect as
if expressly made on and as of the date hereof except for those representations and warranties
that speak solely as of a specific date and which were true and correct as of such date;
and; |
| (ii) | the
Company has complied with all agreements and satisfied all conditions on its part to
be performed or satisfied pursuant to the Sales Agreement at or prior to the date hereof; |
| (iii) | as
of the date hereof, (i) the Registration Statement does not contain any untrue statement
of a material fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading, (ii) the Prospectus
does not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading and (iii) no
event has occurred as a result of which it is necessary to amend or supplement the Registration
Statement or the Prospectus in order to make the statements therein not untrue or misleading
for clauses (i) and (ii) above, respectively, to be true and correct; |
| (iv) | there
has been no Material Adverse Change since the date as of which information is given in
the Prospectus, as amended or supplemented; |
| (v) | the
Company will not be in possession of any material non-public information at the time
of delivery of any Placement Notice and/or as long as such Placement Notice is effective;
and |
| (vi) | the
aggregate offering price of the Placement Shares that may be issued and sold pursuant
to the Sales Agreement and the maximum number or amount of Placement Shares that may
be sold pursuant to the Sales Agreement have been duly authorized by the Company’s
board of directors or a duly authorized committee thereof. |
Terms
used herein and not defined herein have the meanings ascribed to them in the Sales Agreement.
Dated: ____________ |
|
By: |
|
|
|
|
|
|
|
Name: |
|
|
|
|
|
|
Title: |
Tonix Pharmaceuticals Holding Corp. 8-K
Exhibit 5.01
|
Brownstein Hyatt Farber Schreck, LLP
702.382.2101 main
100 North City Parkway, Suite 1600
Las Vegas, Nevada 89106 |
July 30, 2024
Tonix Pharmaceuticals Holding Corp.
26 Main Street
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 potential issuance and sale by the Company
from time to time of shares (the “Shares”) of the Company’s common stock, par value $0.001 per share (the “Common
Stock”), having an aggregate offering price of up to $50,000,000, pursuant to that certain Sales Agreement, dated as of July
30, 2024 (the “Sales Agreement”), by and between A.G.P./Alliance Global Partners, as sales agent (in such capacity,
the “Sales Agent”), and the Company, all as more fully described in the Registration Statement on Form S-3 (File No.
333-266982) (the “Registration Statement”), including the base prospectus, dated August 26, 2022, contained therein,
as supplemented by the prospectus supplement dated July 30, 2024 (collectively, the “Prospectus”), each as filed with
the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”).
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 Shares as
contemplated by the Sales Agreement 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 opinion below, we have assumed that all such proceedings have been or will be timely completed
in the manner presently proposed in the Sales Agreement 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 Sales Agreement, including the
form of placement notice thereunder (each, a “Placement Notice”), (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.
Tonix Pharmaceuticals Holding Corp.
July 30, 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 Sales Agreement and each Placement Notice are or will be its valid and
binding obligations, enforceable in accordance with its terms; (vi) prior to any issuance of Shares, the Placement Notice with respect
to such Shares will have been duly executed and delivered by the Company in accordance with the Sales Agreement; and (vii) after any issuance
of 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 opinion 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 if, when and to the extent
any Shares are issued and sold in accordance with the terms and conditions of, and in the manner contemplated by, the Sales Agreement
(including delivery of by the Company of the Placement Notice relating to such Shares and payment in full to the Company of the consideration
for such Shares as required thereunder and under the Sales Agreement), and in accordance with the proceedings described in, and in the
manner contemplated by, the Registration Statement and Prospectus, such Shares will be validly issued, fully paid and nonassessable.
The opinion 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 opinion 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.
Very truly yours,
/s/ Brownstein Hyatt Farber Schreck, LLP
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Grafico Azioni Tonix Pharmaceuticals (NASDAQ:TNXP)
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