Exhibit 10.32


 





Peregrine
Pharmaceuticals, Inc.


Common
Stock

(par value $0.001 per share)


At Market Issuance Sales Agreement


December 27, 2012


 


MLV & CO. LLC


1251 Avenue of the Americas


41st Floor

New York, NY 10020


 


Ladies and Gentlemen:


Peregrine Pharmaceuticals, Inc. a Delaware corporation (the “Company”),
confirms its agreement (this “Agreement”) with ”)MLV & Co. LLC, a Delaware limited liability company
(“MLV”), as follows:


 


1.                 
Issuance and Sale of Shares. The Company agrees that, on the terms and subject to the conditions set forth herein,
it may issue and sell through MLV, acting as agent and/or principal, shares  of the Company’s common stock (the
“Common Stock”) up to an aggregate offering price of $75,000,000 (the “Placement Shares”),
provided, however, that in no event shall the Company issue or sell through MLV such number of Placement Shares that (a)
exceeds the number of shares of Common Stock registered on the effective Registration Statement (as defined below) pursuant to
which the offering is being made, or (b) exceeds the number of authorized but unissued shares of the Company’s Common Stock
(the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree
that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under
this Agreement shall be the sole responsibility of the Company and that MLV shall have no obligation in connection with such compliance.
The issuance and sale of Placement Shares through MLV will be effected pursuant to the Registration Statement (as defined below)
filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”), although
nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Common Stock.



    	 



    	 



    

 


The Company has filed with the Securities
and Exchange Commission (“Commission”), in accordance with the provisions of the Securities Act of 1933, as amended
(the “Securities Act”), and the rules and regulations thereunder (the “Securities Act Regulations”),
a registration statement on Form S-3, including a base prospectus, relating to certain securities, including, generally, the Placement
Shares, 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 (the “Exchange Act”),
and the rules and regulations thereunder (the “Exchange Act Regulations”). The Company will prepare a prospectus
or prospectus supplement specifically relating to the Placement Shares (the “Prospectus” or “Prospectus Supplement”)
to the base prospectus included as part of such registration statement. The Company will furnish to MLV
upon request, for use by MLV, copies of the prospectus included as part of such registration statement, as supplemented
by the Prospectus or Prospectus Supplement, relating to the Placement Shares. Except where the context otherwise requires, such
registration statement, 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 Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations,
is herein called the “Registration Statement.” The base prospectus, including all documents incorporated therein
by reference, included in the Registration Statement, as it may be supplemented by the Prospectus or Prospectus Supplement, in
the form in which such Prospectus and/or Prospectus Supplement have most recently been filed by the Company with the Commission
pursuant to Rule 424(b) under the Securities Act Regulations is hereinafter 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 (the “Incorporated
Documents”).


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 the most recent
copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System, or if applicable, the Interactive
Data Electronic Application system when used by the Commission (collectively, “EDGAR”).


2.                 
Placements. Each time that the Company wishes to issue and sell Shares hereunder (each, a “Placement”),
it will notify MLV by email notice (or other method mutually agreed to in writing by the Parties) of the number of Placement Shares
to be issued, the time period during which sales are requested to be made, any limitation on the number of Shares that may be sold
in any one day and any minimum price below which sales may not be made (a “Placement Notice”), the form of which
is attached hereto as Schedule 1. The Placement Notice shall originate from any of the individuals from the Company set forth on
Schedule 3 (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 MLV set forth on Schedule 3, as such Schedule 3 may be amended from time to time. The Placement Notice
shall be effective unless and until (i) MLV declines to accept the terms contained therein as a result of any suspension or
limitation of trading in the Placement Shares or in securities generally on the Exchange (as defined below) or any occurrence or
event that causes a material adverse change in the operation or prospects of the Company, (ii) the entire amount of the Placement
Shares have been sold, (iii) the Company suspends or terminates the Placement Notice or (iv) the Agreement has been terminated
under the provisions of Section 12. The amount of any commission to be paid by the Company to MLV in connection with the sale of
the Placement Shares shall be calculated in accordance with the terms set forth in Schedule 2. The Company acknowledges that MLV
may share the commission with other broker-dealers. It is expressly acknowledged and agreed that neither the Company nor MLV will
have any obligation whatsoever with respect to a Placement or any Placement Shares unless and until the Company delivers a Placement
Notice to MLV and MLV 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.



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3.                 
Sale of Placement Shares by MLV.


(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, MLV will use its commercially reasonable efforts consistent with its normal trading and sales practices
to sell such Placement Shares up to the amount specified, and otherwise in accordance with the terms of such Placement Notice.
MLV will provide written confirmation to the Company 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 compensation payable by the Company to MLV pursuant to Section 2 with respect to such sales, and the Net
Proceeds (as defined below) payable to the Company. MLV may sell Placement Shares by any method permitted by law deemed to be an
“at-the-market” offering as defined in Rule 415 of the Securities Act, including without limitation sales made directly
on the NASDAQ Capital Market (the “Exchange”), on any other existing trading market for the Common Stock or
to or through a market maker. MLV may also sell Placement Shares in privately negotiated transactions, subject to approval by the
Company. The Company acknowledges and agrees that (i) there can be no assurance that MLV will be successful in selling Placement
Shares, and (ii) MLV 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 MLV to use its commercially reasonable efforts consistent with its normal
trading and sales practices to sell such Placement Shares as required under this Section 3. For the purposes hereof, “Trading
Day” means any day on which 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 gross sales proceeds of Placement Shares sold pursuant to this Agreement would
exceed the lesser of (A) together with all sales of Placement Shares under this Agreement, the Maximum Amount or (B) 
the amount 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 MLV in writing. 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 MLV in writing.


(c)               
During the term of this Agreement, neither MLV 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 MLV 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, MLV. Neither MLV nor any of its affiliates or
subsidiaries, shall engage in any proprietary trading or trading for MLV’s (or its affiliates’ or subsidiaries’)
own account.



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4.                 
Suspension of Sales. The Company or MLV 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 3, 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 3), suspend
any sale of Placement Shares; 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
3 hereto, as such Schedule may be amended from time to time.


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 third (3rd) Trading Day (or such earlier day as is industry practice for regular-way trading)
(each, a “Settlement Date”) following the respective Point of Sale (as defined below). 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 MLV at which such Placement Shares were sold, after deduction for (i) MLV’s
commission for such sales payable by the Company pursuant to Section 2 hereof, (ii) any other amounts due and payable by the
Company to MLV hereunder pursuant to Section 7(g) (Expenses) hereof, and (iii) any transaction fees imposed by any governmental
or self-regulatory organization 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 MLV’s or its designee’s account at The Depository
Trust Company through its Deposit and Withdrawal at Custodian System ("DWAC") or by such other means of delivery
as may be mutually agreed upon by the parties hereto which in all cases shall be freely tradeable, transferable, registered shares
in good deliverable form. On each Settlement Date, MLV will deliver the related Net Proceeds in same day funds to an account designated
by the Company on, or prior to, the Settlement Date. MLV will be responsible for obtaining DWAC instructions or instructions for
delivery by other means with regard to the transfer of Placement Shares being sold. The Company agrees that if the Company, or
its transfer agent (if applicable), defaults in its obligation to deliver Placement Shares on a Settlement Date, the Company agrees
that in addition to and in no way limiting the rights and obligations set forth in Section 10(a) (Indemnification and Contribution)
hereto, it will (i) hold MLV harmless against any loss, claim, damage, or expense (including reasonable legal fees and expenses),
as incurred, arising out of or in connection with such default by the Company and (ii) pay to MLV any commission to which
it would otherwise have been entitled absent such default.



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6.                 
Representations and Warranties of the Company. The Company represents and warrants to, and agrees with, MLV that
as of the date of this Agreement and as of each Representation Date (as defined in Section 7(m) below) on which a certificate is
required to be delivered pursuant to Section 7(m) of this Agreement, as the case may be, except as may be disclosed in the Incorporated
Documents:


(a)               
Registration Statement and Prospectus. The Company and, assuming no act or omission on the part of MLV that would
make such statement untrue, the transactions contemplated by this Agreement meet the requirements for and comply with the conditions
for the use of Form S-3 under the Securities Act. The Registration Statement has been filed with the Commission and has been declared
effective under the Securities Act. The Registration Statement or Prospectus has named MLV as an underwriter, acting as principal
and/or agent, that the Company might engage in the section entitled “Plan of Distribution.” The Company has not received,
and has no notice of, any order of the Commission preventing or suspending the use of the Registration Statement, or threatening
or instituting proceedings for that purpose. The Registration Statement and the offer and sale of Shares as contemplated hereby
meet the requirements of Rule 415 under the Act and comply in all material respects with said Rule. Any statutes, regulations,
contracts or other documents that are required to be described in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement have been so described or filed. Copies of the Registration Statement, the Prospectus, and
any such amendments or supplements and all documents incorporated by reference therein that were filed with the Commission on or
prior to the date the first Placement Notice is given hereunder, or are available through EDGAR, to MLV and their counsel. The
Company has not distributed and, prior to the later to occur of each Settlement Date and completion of the distribution of the
Placement Shares, will not distribute any offering material in connection with the offering or sale of the Placement Shares other
than the Registration Statement and the Prospectus and any Issuer Free Writing Prospectus (as defined below) to which MLV has consented.
The Common Stock is currently listed on the Exchange under the trading symbol “PPHM”. Except as disclosed in the Registration
Statement, including the Incorporated Documents, the Company has not, in the 12 months preceding the date the first Placement Notice
is given hereunder, received notice from the Exchange to the effect that the Company is not in compliance with the listing or maintenance
requirements. Except as disclosed in the Registration Statement or Prospectus, the Company has no reason to believe that it will
not in the foreseeable future continue to be in compliance with all such listing and maintenance requirements.



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(b)              
No Misstatement or Omission. The Registration Statement, when it became or becomes effective, and the Prospectus,
and any amendment or supplement thereto, on the date of such Prospectus or amendment or supplement, conformed or will conform in
all material respects with the requirements of the Securities Act. At each Settlement Date, the Prospectus, as of such date, will
conform in all material respects with the requirements of the Securities Act. The Registration Statement, when it became or becomes
effective, did not, or 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 statements therein not misleading. The Prospectus and any amendment or supplement thereto,
on the date thereof and at each Point of Sale, did not or will not include an untrue statement of a material fact or omit to state
a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
The documents incorporated by reference in the Prospectus or any Prospectus Supplement did not, and any further documents filed
and incorporated by reference therein will not, when filed with the Commission, contain an untrue statement of a material fact
or omit to state a material fact required to be stated in such document or necessary to make the statements in such document, in
light of the circumstances under which they were made, not misleading. The foregoing shall not apply to statements in, or omissions
from, any such document made in reliance upon, and in conformity with, information furnished to the Company by MLV specifically
for use in the preparation thereof. “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 Shares.


(c)               
Conformity with Securities Act and Exchange Act. The documents incorporated by reference in the Registration Statement,
the Prospectus or any amendment or supplement thereto, when such documents were or are filed with the Commission under the Securities
Act or the Exchange Act or became or become effective under the Securities Act, as the case may be, conformed or will conform in
all material respects with the requirements of the Securities Act and the Exchange Act, as applicable.


(d)              
Financial Information. The consolidated financial statements and the related notes thereto included or incorporated
by reference in the Registration Statement and the Prospectus comply with the applicable requirements of the Act and the Exchange
Act, as applicable, and present fairly, the financial position of the Company as of the dates indicated and the results of its
operations and the changes in its consolidated cash flows for the periods specified; such financial statements have been prepared
in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods covered thereby
(except (i) as may be otherwise indicated in such financial statements or the notes thereto or (ii) in the case of unaudited
interim financial statements, to the extent that they may not include footnotes or may be condensed or summary statements), and
the other financial information included or incorporated by reference in the Registration Statement and the Prospectus has been
derived from the accounting records of the Company and presents fairly the information shown thereby. Any
pro forma financial statements or data included or incorporated by reference in the Registration Statement and the Prospectus comply
with the requirements of Regulation S-X of the Securities Act, including, without limitation, Article 11 thereof, and the
assumptions used in the preparation of such pro forma financial statements and data are reasonable, the pro forma adjustments used
therein are appropriate to give effect to the circumstances referred to therein and the pro forma adjustments have been properly
applied to the historical amounts in the compilation of those statements and data. No other financial statements or schedules
of the Company or any other entity are required by the Act to be included in the Registration Statement or the Prospectus. All
disclosures contained in the Registration Statement and the Prospectus regarding “non-GAAP financial measures” (as
such term is defined by Item 10 of Regulation S-K under the Act) comply with Regulation G of the Exchange Act and Item 10 of Regulation
S-K under the Act, to the extent applicable. The Company does not have any material liabilities or obligations, direct or contingent
(including any off-balance sheet obligations and any “variable interest entities” within the meaning of Financial Accounting
Standards Board Interpretation No. 46), not disclosed in the Registration Statement and the Prospectus.



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(e)               
Conformity with EDGAR Filing. The Prospectus delivered to MLV for use in connection with the sale of the Placement
Shares pursuant to this Agreement will be identical to the versions of the Prospectus created to be transmitted to the Commission
for filing via EDGAR, except to the extent permitted by Regulation S-T.


(f)               
Organization. The Company is, and will be, duly organized, validly existing as a corporation and in good standing
under the laws of its jurisdiction of organization. The Company is, and will be, duly licensed or qualified as a foreign corporation
for transaction of business and in good standing under the laws of each other jurisdiction in which its ownership or lease of property
or the conduct of its businesses requires such license or qualification, and has all corporate power and authority necessary to
own or hold its properties and to conduct its business as described in the Registration Statement and the Prospectus, except where
the failure to be so qualified or in good standing or have such power or authority would not, individually or in the aggregate,
have a material adverse effect or would reasonably be expected to have a material adverse effect on or affecting the business,
properties, management, consolidated financial position, stockholders’ equity or results of operations of the Company (a
“Material Adverse Effect”).


(g)              
Subsidiaries. Other than Avid Bioservices, Inc., the Company has no “Significant Subsidiaries” (as such
term is defined in Rule 1-02 of Regulation S-X).


(h)              
No Violation or Default. The Company is not (i) in violation of its charter or by-laws or similar organizational
documents; (ii) in default, and no event has occurred that, with notice or lapse of time or both, would constitute such a
default, in the due performance or observance of any term, covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company is a party or by which the Company is bound or to which
any of the property or assets of the Company is subject; or (iii) in violation of any law or statute or any judgment, order,
rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of each of clauses (ii)
and (iii) above, for any such violation or default that would not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect. To the Company’s knowledge, no other party under any material contract or other agreement
to which it is a party is in default in any respect thereunder where such default would have a Material Adverse Effect.


(i)                
No Material Adverse Change. Except as set forth in or otherwise contemplated by the Registration Statement (exclusive
of any amendment thereof) or the Prospectus (exclusive of any supplement thereto), since the date of the most recent financial
statements of the Company included or incorporated by reference in the Registration Statement and the Prospectus , (i) there
has not been any material change in the capital stock of the Company (except for changes in the number of outstanding shares of
Common Stock of the Company due to issuance of the Placement Shares and the issuance of shares upon the exercise or conversion
of securities exercisable for, or convertible into, shares of Common Stock outstanding or reserved for issuance under the Company’s
stock incentive plans on the date hereof) or long-term debt of the Company or any dividend or distribution of any kind declared,
set aside for payment, paid or made by the Company on any class of capital stock, that has resulted in or that would reasonably
be expected to result in a Material Adverse Effect to the Company taken as a whole; (ii)  the Company has not entered into
any transaction or agreement, not in the ordinary course of business, that is material to the Company taken as a whole or incurred
any liability or obligation, direct or contingent, not in the ordinary course of business, that is material to the Company taken
as a whole; (iii) there has not been any material adverse change in the business, properties, management, financial position, stockholders’
equity, or results of operations of the Company, taken as a whole; and (iv) the Company has not sustained any material loss
or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any
labor disturbance or dispute or any action, order or decree of any court or arbitrator or governmental or regulatory authority.



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(j)                
Capitalization. The issued and outstanding shares of capital stock of the Company have been validly issued, are fully
paid and nonassessable and, other than as disclosed in or contemplated by the Registration Statement or the Prospectus, are not
subject to any preemptive rights, rights of first refusal or similar rights. The Company has an authorized, issued and outstanding
capitalization as set forth in the Registration Statement and the Prospectus as of the dates referred to therein (other than the
grant of additional options under the Company’s existing stock incentive plans, or changes in the number of outstanding shares
of Common Stock of the Company due to the issuance of shares upon the exercise or conversion of securities exercisable for, or
convertible into, shares of Common Stock outstanding on the date hereof) and such authorized capital stock conforms to the description
thereof set forth in the Registration Statement and the Prospectus. The description of the securities of the Company in the Registration
Statement and the Prospectus is complete and accurate in all material respects. Except as disclosed in or contemplated by the Registration
Statement or the Prospectus, as of the date referred to therein, the Company does not have outstanding any options to purchase,
or any rights or warrants to subscribe for, or any securities or obligations convertible into, or exchangeable for, or any contracts
or commitments to issue or sell, any shares of capital stock or other securities.


(k)              
Authorization; Enforceability. The Company has full legal right, power and authority to enter into this Agreement
and perform the transactions contemplated hereby. This Agreement has been duly authorized, executed and delivered by the Company
and is a legal, valid and binding agreement of the Company enforceable in accordance with its terms, except to the extent that
(i) enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’
rights generally and by general equitable principles and (ii) the indemnification and contribution provisions of Section 10
hereof may be limited by federal or state securities laws and public policy considerations in respect thereof.


(l)                
Authorization of Placement Shares. The Placement Shares, when issued and delivered pursuant to the terms approved
by the Board of Directors or a duly designated committee thereof, against payment therefor as provided herein, will be duly and
validly authorized and issued and fully paid and nonassessable, free and clear of any pledge, lien, encumbrance, security interest
or other claim, including any statutory or contractual preemptive rights, resale rights, rights of first refusal or other similar
rights, and will be registered pursuant to Section 12 of the Exchange Act. The Placement Shares, when issued, will conform in all
material respects to the description thereof set forth in or incorporated into the Prospectus.


(m)            
No Consents Required. No consent, approval, authorization, order, registration or qualification of or with any court
or arbitrator or governmental or regulatory authority is required for the execution, delivery and performance by the Company of
this Agreement, the issuance and sale by the Company of the Placement Shares, except for the registration of the Placement Shares
under the Act and such consents, approvals, authorizations, orders and registrations or qualifications as may be required under
applicable state securities laws or by the by-laws and rules of the Financial Industry Regulatory Authority (“FINRA”)
or the Exchange in connection with the sale of the Placement Shares by MLV.



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(n)              
No Preferential Rights. Except as set forth in or contemplated by the Registration Statement and the Prospectus,
(i) no person, as such term is defined in Rule 1-02 of Regulation S-X promulgated under the Securities Act (each, a “Person”),
has the right, contractual or otherwise, to cause the Company to issue or sell to such Person any shares of Common Stock or shares
of any other capital stock or other securities of the Company, (ii) no Person has any preemptive rights, resale rights, rights
of first refusal, or any other rights (whether pursuant to a “poison pill” provision or otherwise) to purchase any
shares of Common Stock or shares of any other capital stock or other securities of the Company, (iii) 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 Shares, and (iv) no
Person has the right, contractual or otherwise, to require the Company to register under the Securities Act any shares of Common
Stock or shares of any other capital stock or other securities of the Company, or to include any such shares or other securities
in the Registration Statement or the offering contemplated thereby, whether as a result of the filing or effectiveness of the Registration
Statement or the sale of the Placement Shares as contemplated thereby or otherwise.


(o)              
Independent Public Accountant. Ernst & Young LLP, whose report on the consolidated financial statements of the
Company is filed with the Commission as part of the Company’s most recent Annual Report on Form 10-K filed with the Commission
and incorporated into the Registration Statement, are and, during the periods covered by their report, were independent public
accountants within the meaning of the Securities Act and the Public Company Accounting Oversight Board (United States). To the
Company’s knowledge, after due inquiry, the Accountant is not in violation of the auditor independence requirements of the
Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”) with respect to the Company.


(p)              
Enforceability of Agreements. To the knowledge of the Company, all agreements between the Company and third parties
expressly referenced in the Prospectus are legal, valid and binding obligations of the Company enforceable in accordance with their
respective terms, except to the extent that (i) enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting creditors’ rights generally and by general equitable principles and (ii) the indemnification
provisions of certain agreements may be limited be federal or state securities laws or public policy considerations in respect
thereof and except for any unenforceability that, individually or in the aggregate, would not unreasonably be expected to have
a Material Adverse Effect.


(q)              
No Litigation. Except as set forth in the Registration Statement or the Prospectus, there are no legal, governmental
or regulatory actions, suits or proceedings pending, nor, to the Company’s knowledge, any legal, governmental or regulatory
investigations, to which the Company is a party or to which any property of the Company is the subject that, individually or in
the aggregate, if determined adversely to the Company, would reasonably be expected to have a Material Adverse Effect or materially
and adversely affect the ability of the Company to perform its obligations under this Agreement; to the Company’s knowledge,
no such actions, suits or proceedings are threatened or contemplated by any governmental or regulatory authority or threatened
by others; and (i) there are no current or pending legal, governmental or regulatory investigations, actions, suits or proceedings
that are required under the Act to be described in the Prospectus that are not so described; and (ii) there are no contracts
or other documents that are required under the Act to be filed as exhibits to the Registration Statement that are not so filed.



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(r)                
Licenses and Permits. Except as set forth in the Registration Statement or the Prospectus, the Company possesses
or has obtained, and at each Settlement Date will possess and will have obtained, all licenses, certificates, consents, orders,
approvals, permits and other authorizations issued by, and have made all declarations and filings with, the appropriate federal,
state, local or foreign governmental or regulatory authorities that are necessary for the ownership or lease of its properties
or the conduct of its business as described in the Registration Statement and the Prospectus (the “Permits”),
except where the failure to possess, obtain or make the same would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect. Except as disclosed in the Registration Statement or the Prospectus, the Company has not received
written notice of any proceeding relating to revocation or modification of any such Permit and does not have any reason to believe
that such Permit will not be renewed in the ordinary course, except where the failure to obtain any such renewal would not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect.


(s)               
Market Capitalization. As of the close of trading on the Exchange on the Trading Day immediately prior to the date
of this Agreement and the Trading Day immediately prior to the date of each Placement Notice (i) the aggregate market value of
the outstanding voting and non-voting common equity (as defined in Securities Act Rule 405) of the Company held by persons other
than affiliates of the Company (pursuant to Securities Act Rule 144, 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 equal to or greater than $75 million  (calculated by multiplying (x) the price at which the common equity of the Company
was last sold on the Exchange on the Trading Day immediately prior to the date of this Agreement times (y) the number of Non-Affiliate
Shares); or (ii) the aggregate market value of securities sold by or on behalf of the Company as set forth on Schedule 4 during
the previous 12 calendar months, including the Placement Shares, is no more than one-third the aggregate market value of the Non-Affiliate
Shares.


(t)                
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 have
a Material Adverse Effect. 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 have a Material Adverse
Effect.


(u)              
Certain Market Activities. Neither the Company, nor any of its respective directors, officers or controlling persons
has taken, directly or indirectly, any action designed, or that has constituted or might reasonably be expected to cause or result
in, under the Exchange Act or otherwise, the stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Placement Shares.



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(v)              
Broker/Dealer Relationships. 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).


(w)            
No Reliance. The Company has not relied upon MLV or legal counsel for MLV for any legal, tax or accounting advice
in connection with the offering and sale of the Placement Shares.


(x)              
Taxes. The Company has filed all federal, state, local and foreign tax returns which have been required to be filed
and paid all taxes shown thereon through the date hereof, to the extent that such taxes have become due and are not being contested
in good faith. Except as otherwise disclosed in or contemplated by the Registration Statement or the Prospectus, no tax deficiency
has been determined adversely to the Company which has had, or would reasonably be expected to have, individually or in the aggregate,
a Material Adverse Effect. The Company has no knowledge of any federal, state or other governmental tax deficiency, penalty or
assessment which has been or might be asserted or threatened against it which could have a Material Adverse Effect.


(y)              
Title to Real and Personal Property. Except as set forth in the Registration Statement or the Prospectus, the Company
has good and valid title in fee simple to all items of real property and good and valid title to all personal property described
in the Registration Statement or Prospectus as being owned by it that are material to the business of the Company, in each case
free and clear of all liens, encumbrances and claims, except those that (i) do not materially interfere with the use made
and proposed to be made of such property by the Company or (ii) would not reasonably be expected, individually or in the aggregate,
to have a Material Adverse Effect. Any real property described in the Registration Statement or Prospectus as being leased by the
Company is held by it under valid, existing and enforceable leases, except those that (A) do not materially interfere with
the use made or proposed to be made of such property by the Company or (B) would not be reasonably expected, individually
or in the aggregate, to have a Material Adverse Effect.


(z)               
Intellectual Property. Except as set forth in the Registration Statement or the Prospectus, the Company owns or possesses
adequate enforceable rights to all patents, patent applications, trademarks (both registered and unregistered), service marks,
trade names, trademark registrations, service mark registrations, copyrights, licenses and know-how (including trade secrets and
other unpatented and/or unpatentable proprietary or confidential information, systems or procedures) (collectively, the “Intellectual
Property”), necessary for the conduct of its business as conducted as of the date hereof, except to the extent that the
failure to own or possess adequate rights to such Intellectual Property would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect; and to the Company's knowledge there are no interference proceedings against any
of the Company’s patents or patent applications; to the Company's knowledge, the Company has not been notified that the Company's
activities allegedly infringe any patent held by any third party; there are no pending, or to the Company’s knowledge, threatened
judicial proceedings or interference proceedings challenging the Company’s rights in or to or the validity of the scope of
any of the Company’s patents, patent applications or proprietary information; to the Company's knowledge no other entity
or individual has any right or claim in any of the Company’s patents, patent applications or any patent to be issued therefrom
by virtue of any contract, license or other agreement entered into between such entity or individual and the Company or by any
non-contractual obligation, other than by written licenses granted by the Company.



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(aa)           
Environmental Laws. Except as set forth in the Registration Statement or the Prospectus, the Company (i) is
in compliance with any and all applicable federal, state, local and foreign laws, rules, regulations, decisions and orders relating
to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants
(collectively, “Environmental Laws”); (ii) has received and is in compliance with all permits, licenses
or other approvals required of them under applicable Environmental Laws to conduct their respective businesses as described in
the Registration Statement and the Prospectus; and (iii) has not received notice of any actual or potential liability for
the investigation or remediation of any disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants,
except, in the case of any of clauses (i), (ii) or (iii) above, for any such failure to comply or failure to receive required permits,
licenses, other approvals or liability as would not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.


(bb)          
Disclosure Controls. The Company maintains systems of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions
are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles
and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general
or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences. The Company has established disclosure controls and
procedures (as defined in Exchange Act Rules 13a-15 and 15d-15) for the Company and designed such disclosure controls and procedures
to ensure that material information relating to the Company is made known to the certifying officers by others within those entities,
particularly during the period in which the Company’s Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as the
case may be, is being prepared. The Company’s certifying officers have evaluated the effectiveness of the Company’s
controls and procedures as of a date within 90 days prior to the filing date of them most recently filed Form 10-K (such date,
the “Evaluation Date”). The Company presented in its most recently filed Form 10-K the conclusions of the certifying
officers about the effectiveness of the disclosure controls and procedures based on their evaluations as of the Evaluation Date.
Since the Evaluation Date, there have been no significant changes in the Company’s internal controls (as such term is defined
in Item 307(b) of Regulation S-K under the Act) or, to the Company’s knowledge, in other factors that could significantly
affect the Company’s internal controls.



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(cc)           
Sarbanes-Oxley. To the knowledge of the Company, there is and has been no failure on the part of the Company and
any of the Company’s directors or officers, in their capacities as such, to comply with any applicable provisions of the
Sarbanes-Oxley Act and the rules and regulations promulgated thereunder. Each of the principal executive officer and the principal
financial officer of the Company (or each former principal executive officer of the Company and each former principal financial
officer of the Company as applicable) has made all certifications required by Sections 302 and 906 of the Sarbanes-Oxley Act with
respect to all reports, schedules, forms, statements and other documents required to be filed by it or furnished by it to the Commission.
For purposes of the preceding sentence, “principal executive officer” and “principal financial officer”
shall have the meanings given to such terms in the Sarbanes-Oxley Act.


(dd)         
Finder’s Fees. The Company has not incurred any liability for any finder’s fees, brokerage commissions
or similar payments in connection with the transactions herein contemplated, except as may otherwise exist with respect to MLV
pursuant to this Agreement.


(ee)           
Labor Disputes. No labor disturbance by or dispute with employees of the Company exists or, to the knowledge of the
Company, is threatened which would reasonably be expected to result in a Material Adverse Effect.


(ff)            
Investment Company Act. The Company, after giving effect to the offering and sale of the Placement Shares, will not
be an “investment company” or an entity “controlled” by an “investment company,” as such terms
are defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”).


(gg)          
Operations. The operations of the Company are and have been conducted at all times in compliance with applicable
financial record keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended,
the money laundering statutes of all jurisdictions to which the Company is subject, 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”), except as would not reasonably be expected to result in a Material Adverse Effect;
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.


(hh)          
Off-Balance Sheet Arrangements. There are no transactions, arrangements and other relationships between and/or among
the Company, and/or, to the knowledge of the Company, any of its affiliates and any unconsolidated entity, including, but not limited
to, any structural finance, special purpose or limited purpose entity (each, an “Off Balance Sheet Transaction”)
that could reasonably be expected to affect materially the Company’s liquidity or the availability of or requirements for
its capital resources, including those Off Balance Sheet Transactions described in the Commission’s Statement about Management’s
Discussion and Analysis of Financial Conditions and Results of Operations (Release Nos. 33-8056; 34-45321; FR-61), required to
be described in the Prospectus which have not been described as required.



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(ii)              
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.


(jj)              
ERISA. To the knowledge of the Company, each material employee benefit plan, within the meaning of Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), that is maintained, administered
or contributed to by the Company or any of its affiliates for employees or former employees of the Company has been maintained
in material compliance with its terms and the requirements of any applicable statutes, orders, rules and regulations, including
but not limited to ERISA and the Internal Revenue Code of 1986, as amended (the “Code”); no prohibited transaction,
within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred which would result in a material liability
to the Company with respect to any such plan excluding transactions effected pursuant to a statutory or administrative exemption;
and for each such plan that is subject to the funding rules of Section 412 of the Code or Section 302 of ERISA, no “accumulated
funding deficiency” as defined in Section 412 of the Code has been incurred, whether or not waived, and the fair market value
of the assets of each such plan (excluding for these purposes accrued but unpaid contributions) exceeds the present value of all
benefits accrued under such plan determined using reasonable actuarial assumptions.


(kk)          
Forward Looking Statements. No forward-looking statement (within the meaning of Section 27A of the Securities Act
and Section 21E of the Exchange Act) (a “Forward Looking Statement”) contained in the Registration Statement
and the Prospectus has been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith. The Forward
Looking Statements incorporated by reference in the Registration Statement and the Prospectus from the Company’s Annual Report
on Form 10-K for the fiscal year most recently ended (i) are within the coverage of the safe harbor for forward looking statements
set forth in Section 27A of the Act, Rule 175(b) under the Act or Rule 3b-6 under the Exchange Act, as applicable, (ii) were
made by the Company with a reasonable basis and in good faith and reflect the Company’s good faith commercially reasonable
best estimate of the matters described therein, and (iii) have been prepared in accordance with Item 10 of Regulation S-K
under the Act.


(ll)              
Margin Rules. Neither the issuance, sale and delivery of the Shares nor the application of the proceeds thereof by
the Company as described in the Registration Statement and the Prospectus will violate Regulation T, U or X of the Board of Governors
of the Federal Reserve System or any other regulation of such Board of Governors.


(mm)      
Insurance. The Company carries, or is covered by, insurance in such amounts and covering such risks as the Company
reasonably believe are adequate for the conduct of its properties and as is customary for companies engaged in similar businesses
in similar industries.



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(nn)          
No Improper Practices. (i) Neither the Company, nor to the Company’s knowledge, any of its respective
executive officers has, in the past five years, made any unlawful contributions to any candidate for any political office (or failed
fully to disclose any contribution in violation of law) or made any contribution or other payment to any official of, or candidate
for, any federal, state, municipal, or foreign office or other person charged with similar public or quasi-public duty in violation
of any law or of the character required to be disclosed in the Prospectus; (ii) no relationship, direct or indirect, exists
between or among the Company or, to the Company’s knowledge any affiliate, on the one hand, and the directors, officers and
stockholders of the Company, on the other hand, that is required by the Securities Act to be described in the Registration Statement
and the Prospectus that is not so described; (iii) no relationship, direct or indirect, exists between or among the Company
or any affiliate, on the one hand, and the directors, officers, stockholders or directors of the Company, on the other hand, that
is required by the rules of FINRA to be described in the Registration Statement and the Prospectus that is not so described; and
(iv) except as described in the Prospectus, there are no material outstanding loans or advances or material guarantees of
indebtedness by the Company to or for the benefit of any of its officers or directors or any of the members of the families of
any of them.


(oo)          
Status Under the Securities Act. The Company was not and is not an ineligible issuer as defined in Rule 405 under
the Securities Act at the times specified in Rules 164 and 433 under the Act in connection with the offering of the Shares.


(pp)          
No Misstatement or Omission. The Incorporated Documents and each Issuer Free Writing Prospectus as of the applicable
Point of Sale, did not or 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 statements therein, in light of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representation or warranty with respect to any statement contained in any Issuer Free
Writing Prospectus in reliance upon and in conformity with information concerning MLV and furnished by MLV to the Company expressly
for use in the Issuer Free Writing Prospectus.


(qq)             
Conformity of Issuer Free Writing Prospectus. Each Issuer Free Writing Prospectus conformed or will conform in all
material respects to the requirements of the 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 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 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 Shares that would constitute an Issuer Free Writing Prospectus without the prior
written consent of MLV. The Company has retained in accordance with the Act all Issuer Free Writing Prospectuses that were not
required to be filed pursuant to the Act.



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(rr)            
No Conflicts. Neither the execution of this Agreement, nor the issuance, offering or sale of the Shares, nor the
consummation of any of the transactions contemplated herein and therein, nor the compliance by the Company with the terms and provisions
hereof and thereof will conflict with, or will result in a breach of, any of the terms and provisions of, or has constituted or
will constitute a default under, or has resulted in or will result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company pursuant to the terms of any contract or other agreement to which the Company may be
bound or to which any of the property or assets of the Company is subject, except (i) such conflicts, breaches or defaults as may
have been waived and (ii) such conflicts, breaches and defaults that would not have a Material Adverse Effect; nor will such action
result (x) in any violation of the provisions of the organizational or governing documents of the Company, or (y) in any material
violation of the provisions of any statute or any order, rule or regulation applicable to the Company or of any court or of any
federal, state or other regulatory authority or other government body having jurisdiction over the Company.


(ss)             
Stock Transfer Taxes. On each Settlement Date, all stock transfer or other taxes (other than income taxes) which
are required to be paid in connection with the sale and transfer of the Shares to be sold hereunder will be, or will have been,
fully paid or provided for by the Company and all laws imposing such taxes will be or will have been fully complied with.


7.                 
Covenants of the Company. The Company covenants and agrees with MLV 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 MLV under the Securities Act (including in circumstances where such requirement
may be satisfied pursuant to Rule 172 under the Securities Act), (i) the Company will notify MLV 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 MLV’s request, any amendments or supplements to the Registration
Statement or Prospectus that, in MLV’s reasonable opinion, may be necessary or advisable in connection with the distribution
of the Placement Shares by MLV (provided, however, that the failure of MLV to make such request shall not relieve the Company of
any obligation or liability hereunder, or affect MLV’s right to rely on the representations and warranties made by the Company
in this Agreement and provided, further, that the only remedy MLV 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 relating to the Placement Shares or a security convertible
into the Placement Shares unless a copy thereof has been submitted to MLV within a reasonable period of time before the filing
and MLV has not reasonably objected thereto (provided, however, that the failure of MLV to make such objection shall not relieve
the Company of any obligation or liability hereunder, or affect MLV’s right to rely on the representations and warranties
made by the Company in this Agreement and provided, further, that the only remedy MLV shall have with respect to the failure by
the Company to obtain such consent shall be to cease making sales under this Agreement) and the Company will furnish to MLV 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 (iv) the Company will cause each amendment or
supplement to the Prospectus to be filed with the Commission as required pursuant to the applicable paragraph of Rule 424(b) of
the Securities Act or, in the case of any document to be incorporated therein by reference, to be filed with the Commission as
required pursuant to the Exchange Act, within the time period prescribed (the determination to file or not file any amendment or
supplement with the Commission under this Section 7(a), based on the Company’s reasonable opinion or reasonable objections,
shall be made exclusively by the Company).



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(b)              
Notice of Commission Stop Orders. The Company will advise MLV, promptly after it receives notice or obtains knowledge
thereof, of the issuance or threatened issuance by the Commission of any stop order suspending the effectiveness of the Registration
Statement, of the suspension of the qualification of the Placement Shares for offering or sale in any jurisdiction, or of the initiation
or threatening of any proceeding for any such purpose; 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. The Company will advise MLV promptly
after it receives any request by the Commission for any amendments to the Registration Statement or any amendment or supplements
to the Prospectus or any Issuer Free Writing Prospectus or for additional information related to the offering of the Shares or
for additional information related to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus.


(c)               
Delivery of Prospectus; Subsequent Changes. During any period in which a Prospectus relating to the Placement Shares
is required to be delivered by MLV under the Securities Act with respect to the offer and sale of the Placement Shares, (including
in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Company will comply
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 the Company has omitted any
information from the Registration Statement pursuant to Rule 430A under the Act, it will use its best efforts to comply with the
provisions of and make all requisite filings with the Commission pursuant to said Rule 430A and to notify MLV promptly of all such
filings. 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 MLV 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 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 MLV under the Securities Act with respect to the offer and sale of the Placement Shares, the Company will use
its reasonable best 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 MLV 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.



    	17



    	 



    

 


 


(e)               
Delivery of Registration Statement and Prospectus. The Company will furnish to MLV and its counsel (at the expense
of the Company) copies of the Registration Statement, the Prospectus (including all Incorporated Documents) 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 MLV may from time to time reasonably request and, at MLV’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 MLV 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 covering
a 12-month period that satisfies the provisions of Section 11(a) and Rule 158 of 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 12 hereunder, will pay all expenses 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, (iii) the qualification of the Placement Shares
under securities laws in accordance with the provisions of Section 7(d) of this Agreement, including filing fees, (iv) the
printing and delivery to MLV of copies of the Prospectus and any amendments or supplements thereto, and of this Agreement, (v) the
fees and expenses incurred in connection with the listing or qualification of the Placement Shares for trading on the Exchange,
(vi) filing fees and expenses, if any, of the Commission and the FINRA Corporate Financing Department. MLV will pay all other
expenses incident to the performance of its obligations hereunder.


(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 will use reasonable best efforts to inform MLV on a timely basis of any transaction
to sell or otherwise dispose of any shares of Common Stock (other than the Shares offered pursuant to the provisions of this Agreement)
or securities convertible into or exchangeable for Common Stock, warrants or any rights to purchase or acquire, Common Stock during
the period of any Placement Notice.


(j)                
Change of Circumstances. The Company will, at any time during the pendency of a Placement Notice advise MLV 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 required to be provided to MLV pursuant to this Agreement.



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(k)              
Due Diligence Cooperation. The Company will cooperate with any reasonable due diligence review conducted by MLV 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 MLV may reasonably request.


(l)                
Required Filings Relating to Placement of Placement Shares. The Company agrees that on 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 (each and every filing under Rule 424(b), a “Filing Date”), which prospectus
supplement will set forth, within the relevant period, the maximum dollar amount of Placement Shares to be sold through MLV and
the compensation payable by the Company to MLV 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.


(m)            
Representation Dates; Certificate. During the term of this Agreement, 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 prospectus supplement filed in accordance with Section 7(l) of this Agreement) 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; (iii) files
its quarterly reports on Form 10-Q under the Exchange Act; (iv) files a 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 reclassifications of certain properties as discontinued operations
in accordance with Statement of Financial Accounting Standards No. 144) under the Exchange Act or (v) files a Form 8-K under
the Exchange Act for any other purpose (other than to “furnish” information pursuant to Items 2.02 or 7.01 of revised
Form 8-K) (each date of filing of one or more of the documents referred to in clauses (i) through (v) shall be a “Representation
Date”); the Company shall furnish MLV (but in the case of clause (v) above only if MLV reasonably determines that the
information contained in such Form 8-K is material) 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 MLV with a certificate under this Section 7(m), then before the Company delivers
the Placement Notice or MLV sells any Placement Shares, the Company shall provide MLV with a certificate, in the form attached
hereto as Exhibit 7(m), dated the date of the Placement Notice.



    	19



    	 



    

 


 


(n)              
Legal Opinion. No later than ten Trading Days following the date of the initial Placement Notice given hereunder
and within three Trading Days of each Representation Date with respect to which the Company is obligated to deliver a certificate
in the form attached hereto as Exhibit 7(m) for which no waiver is applicable, the Company shall cause to be furnished to MLV a
written opinion of K&L Gates LLP (“Company Counsel”), or other counsel satisfactory to MLV, in form and
substance satisfactory to MLV and its counsel, dated the date of the Representation Date; provided, however, the Company shall
be required to furnish to MLV no more than one opinion hereunder per calendar quarter; provided, further, that in lieu of such
opinions for subsequent Representation Dates, counsel may furnish MLV with a letter (a “Reliance Letter”) to
the effect that MLV may rely on a prior opinion delivered under this Section 7(n) to the same extent as if it were dated the date
of such letter (except that statements in such prior opinion shall be deemed to relate to the Registration Statement and the Prospectus
as amended or supplemented as of the Representation Date).


(o)              
Comfort Letter. No later than twenty (20) Trading Days following the date the Company files its annual report on
Form 10-K for the year ended April 30, 2013 and thereafter within twenty (20) Trading Days following each subsequent date the Company
files an annual report on Form 10-K under the Exchange Act, during any period in which the Prospectus relating to the Placement
Shares is required to be delivered by MLV (including in circumstances where such requirement may be satisfied pursuant to Rule
172 under the Act) and with respect to which the Company is obligated to deliver a certificate in the form attached hereto as Exhibit
7(m) for which no waiver is applicable, the Company shall cause its independent accountants to furnish MLV letters (the “Comfort
Letters”), dated the date the Comfort Letter is delivered. The Comfort Letter from the Company's independent accountants
shall be in a form and substance satisfactory to MLV, (i) confirming that they are an independent public accounting firm within
the meaning of the Securities Act and the PCAOB, (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 underwriters 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 Shares or (ii) sell, bid for, or purchase the Shares, or pay anyone
any compensation for soliciting purchases of the Shares other than MLV.


(q)              
Investment Company Act. The Company will conduct its affairs in such a manner so as to reasonably ensure that it
will not be or become, at any time prior to the termination of this Agreement, an “investment company,” as such term
is defined in the Investment Company Act, assuming no change in the Commission’s current interpretation as to entities that
are not considered an investment company.



    	20



    	 



    

 


 


(r)                
No Offer to Sell. Other than an Issuer Free Writing Prospectus approved in advance by the Company and MLV in its
capacity as principal or agent hereunder, neither MLV nor the Company (including its agents and representatives, other than MLV
in its capacity as such) will make, use, prepare, authorize, approve or refer to any written communication (as defined in Rule
405 under the Act), required to be filed with the Commission, that constitutes an offer to sell or solicitation of an offer to
buy Shares hereunder.


(s)               
Sarbanes-Oxley Act. The Company will maintain and keep accurate books and records reflecting its assets and maintain
internal accounting controls in a manner designed to provide reasonable assurance regarding the reliability of financial reporting
and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles and
including those policies and procedures that (i) pertain to the maintenance of records that in reasonable detail accurately
and fairly reflect the transactions and dispositions of the assets of the Company, (ii) provide reasonable assurance that
transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements in accordance
with generally accepted accounting principles, (iii) that receipts and expenditures of the Company are being made only in
accordance with management’s and the Company’s directors’ authorization, and (iv) provide reasonable assurance
regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Company’s assets that could
have a material effect on its financial statements. The Company will maintain such controls and other procedures, including, without
limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act, and the applicable regulations thereunder that are
designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange
Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and forms,
including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company
in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company’s management,
including its Chief Executive Officer and principal financial officer, or persons performing similar functions, as appropriate
to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made
known to them, particularly during the period in which such periodic reports are being prepared.


8.                 
Representations and Covenants of MLV. MLV represents and warrants that it is duly registered as a broker-dealer under
FINRA, the Exchange Act and the applicable statutes and regulations of each state in which the Placement Shares will be offered
and sold, except such states in which MLV is exempt from registration or such registration is not otherwise required. MLV shall
continue, for the term of this Agreement, to be duly registered as a broker-dealer under FINRA, the Exchange Act and the applicable
statutes and regulations of each state in which the Shares will be offered and sold, except such states in which MLV is exempt
from registration or such registration is not otherwise required, during the term of this Agreement.


9.                 
Conditions to MLV’s Obligations. The obligations of MLV 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 MLV of a due diligence review satisfactory to MLV in its reasonable
judgment, and to the continuing satisfaction (or waiver by MLV in its sole discretion) of the following additional conditions:



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(a)               
Registration Statement Effective. The Registration Statement shall have become effective and shall be available for
the (i) resale of all Placement Shares issued to MLV and not yet sold by MLV and (ii) the sale of all Placement Shares
contemplated to be issued by any Placement Notice.


(b)              
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; or (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 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.


(c)               
No Misstatement or Material Omission. MLV 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 MLV’s reasonable opinion is material,
or omits to state a fact that in MLV’s opinion is material and is required to be stated therein or is necessary to make the
statements therein not misleading.


(d)              
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, on a consolidated basis, in the authorized capital stock
of the Company or any Material Adverse Effect, or any development that could reasonably be expected to cause a Material Adverse
Effect, or a downgrading in or withdrawal of the rating assigned to any of the Company’s securities (other than asset backed
securities) by any rating organization or a public announcement by any rating organization that it has under surveillance or review
its rating of any of the Company’s securities (other than asset backed securities), the effect of which, in the case of any
such action by a rating organization described above, in the reasonable judgment of MLV (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 in the Prospectus.



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(e)               
Legal Opinion. MLV shall have received the opinions of Company Counsel required to be delivered pursuant Section
7(n) on or before the date on which such delivery of such opinion is required pursuant to Section 7(n).


(f)               
Comfort Letter. MLV 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 opinion is required pursuant to Section 7(o).


(g)              
Representation Certificate. MLV 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).


(h)              
No Suspension. Trading in the Shares shall not have been suspended on the Exchange.


(i)                
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 MLV such appropriate further information, certificates and documents as MLV may reasonably
request and as are usually and customarily furnished pursuant to a securities offering. All such opinions, certificates, letters
and other documents will be in compliance with the provisions hereof. The Company will furnish MLV with such conformed copies of
such opinions, certificates, letters and other documents as MLV shall reasonably request.


(j)                
Securities Act Filings Made. All filings with the Commission required by Rule 424 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.


(k)              
Approval for Listing. The Placement Shares shall either have been approved for listing on the Exchange, subject only
to notice of issuance, or 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.


(l)                
No Termination Event. There shall not have occurred any event that would permit MLV to terminate this Agreement pursuant
to Section 12(a).


10.             
Indemnification and Contribution.


(a)               
Company Indemnification. The Company agrees to indemnify and hold harmless MLV, the directors, officers, partners,
employees and agents of MLV and each person, if any, who (i) controls MLV 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 MLV (a “MLV 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 10(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 MLV, 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 (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement
or the Prospectus or any amendment or supplement to the Registration Statement or the Prospectus 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 Shares under the securities laws thereof or filed
with the Commission, (ii) 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 (iii) 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 or indirectly by an untrue statement or omission made in reliance on and
in conformity with information relating to MLV. This indemnity agreement will be in addition to any liability that the Company
might otherwise have.



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(b)              
MLV Indemnification. MLV agrees to indemnify and hold harmless the Company and its directors and each officer of
the Company who 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 (a “Company Affiliate”) against any and all loss, liability, claim, damage and expense described in
the indemnity contained in Section 10(c), as incurred, but only with respect to (i) MLV’s breach of Section 8 and/or (ii)
untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendments
thereto) or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with information relating
to MLV and furnished to the Company by MLV.


(c)               
Procedure. Any party that proposes to assert the right to be indemnified under this Section 10 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 10, 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 10 and (ii) any liability that it
may have to any indemnified party under the foregoing provision of this Section 10 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 10 (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.



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(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 10 is applicable in accordance with its terms but for any reason is held
to be unavailable from the Company or MLV, the Company and MLV 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 MLV, 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 MLV may be subject in such proportion as shall be appropriate to reflect the relative benefits received by the Company
on the one hand and MLV on the other. The relative benefits received by the Company on the one hand and MLV 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 MLV (before deducting expenses) 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 MLV, 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 MLV, 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 MLV agree that it would
not be just and equitable if contributions pursuant to this Section 10(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 10(d) shall be deemed to include, for the purpose of this Section 10(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 10(c) hereof. Notwithstanding the foregoing provisions of this Section 10(d), MLV 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 10(d), any person who controls a party to this Agreement within
the meaning of the Securities Act, and any officers, directors, partners, employees or agents of MLV, will have the same rights
to contribution as that party, and each officer of the Company who signed the Registration Statement 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 10(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 10(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 10(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 10(c) hereof.



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11.             
Representations and Agreements to Survive Delivery. The indemnity and contribution agreements contained in Section
10 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 MLV, any controlling
persons, or the Company (or any of their respective officers, directors or controlling persons), (ii) delivery and acceptance
of the Placement Shares and payment therefor or (iii) any termination of this Agreement.


12.             
Termination.


(a)               
MLV shall have the right by giving notice as hereinafter specified at any time to terminate this Agreement if (i) any
Material Adverse Effect, or any development that has actually occurred and that is reasonably expected to cause a Material Adverse
Effect has occurred that, in the reasonable judgment of MLV, may materially impair the ability of MLV 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), or 7(o), MLV’s right to terminate shall not arise unless such failure
to deliver (or cause to be delivered) continues for more than thirty days from the date such delivery was required; or (iii) any
other condition of MLV’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. 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), Section 11
(Survival of Representations), Section 17 (Applicable Law; Consent to Jurisdiction) and Section 18 (Waiver of Jury Trial) hereof
shall remain in full force and effect notwithstanding such termination. If MLV elects to terminate this Agreement as provided in
this Section 12(a), MLV shall provide the required notice as specified in Section 13 (Notices).



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(b)              
The Company shall have the right, by giving 3days notice as hereinafter specified 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 10, Section 11, Section 17 and Section 18 hereof shall remain in full
force and effect notwithstanding such termination.


(c)               
MLV shall have the right, by giving 90 days’ notice as hereinafter specified 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 10, Section 11, Section 17 and Section 18 hereof shall remain in full
force and effect notwithstanding such termination.


(d)              
Unless earlier terminated pursuant to this Section 12, this Agreement shall automatically terminate upon the issuance and
sale of all of the Placement Shares through MLV on the terms and subject to the conditions set forth herein; provided that the
provisions of Section 7(g), Section 10, Section 11, Section 17 and Section 18 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 12(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 10, Section 11, Section 17 and Section 18 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 MLV 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 Placement
Shares shall settle in accordance with the provisions of this Agreement.



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13.             
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 MLV, shall be delivered to:


MLV & Co. LLC

1251 Avenue of the Americas, 41st Floor

New York, NY 10020

Attention: General Counsel

Facsimile: 212.317.1515






with a copy to:


Holme Roberts & Owen LLP

1700 Lincoln Street, Suite 4100

Denver, CO 80203

Attention: Garth B. Jensen

Facsimile: 303-866-0200



and if to the Company, shall be delivered to:


Peregrine Pharmaceuticals,
Inc.

14282 Franklin Avenue


Tustin, California 92780-7017


Attention:
General Counsel

Facsimile: 714-838-9433


with a copy to:


Michael A. Hedge


K&L Gates LLP


1 Park Plaza, Twelfth Floor


Irvine, California 92614


Facsimile:
949-253-0902


Each party to this Agreement may change
such address for notices by sending to the parties 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 13 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 verification of receipt by the receiving party. 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.



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14.             
Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the Company and MLV and
their respective successors and the affiliates, controlling persons, officers and directors referred to in Section 10 hereof. 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 party other than the parties hereto or their respective
successors and permitted assigns 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 MLV may assign its rights and obligations hereunder to an affiliate
of MLV without obtaining the Company’s consent.


15.             
Adjustments for Stock Splits. The parties acknowledge and agree that all share-related numbers contained in this
Agreement shall be adjusted to take into account any stock split, stock dividend or similar event effected with respect to the
Shares.


16.             
Entire Agreement; Amendment; Severability. This Agreement (including all schedules and exhibits attached hereto and
Placement Notices issued pursuant hereto) 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 MLV. 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.


17.             
Applicable Law; Consent to Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the
internal laws of the State of Colorado 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 Denver, 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.



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18.             
Waiver of Jury Trial. The Company and MLV 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.


19.             
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.


[Remainder of Page Intentionally Blank]



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If the foregoing correctly sets forth the understanding between
the Company and MLV, please so indicate in the space provided below for that purpose, whereupon this letter shall constitute a
binding agreement between the Company and MLV.


Very truly yours,


	
         

         

         

	
        PEREGRINE PHARMACEUTICALS, INC.

         

         

	By:	/s/ Paul J. Lytle
	 	Name: Paul J. Lytle
	 	Title:   Chief Financial Officer



 


 


ACCEPTED as of the date first-above written:


	MLV & CO. LLC
	
         

         

         

	By:	/s/ Dean M. Colucci
	Name:	Dean M. Colucci
	Title:	President


 


 



    	 



    	 



    

 


 


SCHEDULE 1


 


__________________________


FORM OF PLACEMENT NOTICE


__________________________


 


 


From: Peregrine Pharmaceuticals, Inc.


To: MLV & Co. LLC

Attention: Patrice McNicoll


Subject: At Market Issuance--Placement Notice


Gentlemen:


Pursuant to the terms and subject to the conditions contained
in the At Market Issuance Sales Agreement between Peregrine Pharmaceuticals, Inc., a Delaware corporation (the “Company”),
and MLV & Co. LLC, a Delaware limited liability company (“MLV”), dated December 27, 2012, the Company hereby
requests that MLV sell up to ____________ shares of the Company’s common stock, par value $0.001 per share, at a minimum
market price of $_______ per share, during the time period beginning [month, day, time] and ending [month, day, time].



    	 



    	 



    

 


 


SCHEDULE 2


 


__________________________


Compensation


__________________________


 


The Company shall pay to MLV in cash, upon each sale of Placement
Shares pursuant to this Agreement, an amount equal to 2.5% of the gross proceeds from each sale of Placement Shares.



    	 



    	 



    

 


SCHEDULE 3


Company


	Paul Lytle	plytle@peregrineinc.com
	Steven King	sking@peregrineinc.com
	 	 
	MLV	 
	Randy Billhardt	rbillhardt@mlvco.com
	Dean Colucci	dcolucci@mlvco.com
	Ryan Loforte	rloforte@mlvco.com
	Patrice McNicoll	pmcnicoll@mlvco.com



    	 



    	 



    




 


SCHEDULE 4


None.


 



    	



    	 



    




EXHIBIT 7(m)


Form of Representation Date Certificate






This Officers Certificate (this “Certificate”)
is executed and delivered in connection with Section 7(m) of the At Market Issuance Sales Agreement (the “Agreement”),
dated December 27, 2012 and entered into between Peregrine Pharmaceutical, Inc. (the “Company”) and MLV &
Co. LLC (“MLV”). All capitalized terms used but not defined herein shall have the meanings given to such terms
in the Agreement.


The undersigned, a duly appointed and
authorized officer of the Company, having made all necessary inquiries to establish the accuracy of the statements below and having
been authorized by the Company to execute this certificate, hereby certifies as follows:


1.As of the date of this Certificate,
(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 and (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 Prospectus in order to make the statements therein not untrue or
misleading.


2.Each of the representations
and warranties of the Company contained in the Agreement were, when originally made, and are, as of the date of this Certificate,
true and correct in all material respects.


3.Each of the covenants required
to be performed by the Company in the Agreement on or prior to the date of the Agreement, this Representation Date, and each such
other date as set forth in the Agreement, has been duly, timely and fully performed in all material respects and each condition
required to be complied with by the Company on or prior to the date of the Agreement, this Representation Date, and each such other
date as set forth in the Agreement or in the Waivers has been duly, timely and fully complied with in all material respects.


4.Subsequent to the date of
the most recent financial statements in the Prospectus, there has been no material adverse change.


5.No stop order suspending
the effectiveness of the Registration Statement or of any part thereof has been issued, and no proceedings for that purpose have
been instituted or are pending or threatened by any securities or other governmental authority (including, without limitation,
the Commission).


6.No order suspending the
effectiveness of the Registration Statement or the qualification or registration of the Shares under the securities or Blue Sky
laws of any jurisdiction are in effect and no proceeding for such purpose is pending before, or threatened, to the Company's knowledge
or in writing by, any securities or other governmental authority (including, without limitation, the Commission).


The undersigned has executed this
Officer's Certificate as of the date first written above.


	
         

        /s/ Paul Lytle

	
         

        Name: Paul Lytle

	
         

        Title: CFO