Exhibit 10.1


 





PROTEON THERAPEUTICS,
INC.


 


$40,000,000



cOMMON STOCK



SALES AGREEMENT






 


November
12, 2015


 


 


 


Cowen and Company, LLC


599 Lexington Avenue


New York, NY 10022


 


Ladies and Gentlemen:


 


Proteon Therapeutics, Inc. (the “Company”),
confirms its agreement (this “Agreement”) with Cowen and Company, LLC (“Cowen”),
as follows:


 


1.          Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the
terms and subject to the conditions set forth herein, it may issue and sell through Cowen, acting as agent and/or principal, shares
(the “Placement Shares”) of the Company’s common stock, par value $0.001 per share (the “Common
Stock”), having an aggregate offering price of up to $40,000,000. Notwithstanding anything to the contrary contained
herein, the parties hereto agree that compliance with the limitation set forth in this Section 1 on the number of shares
of Common Stock issued and sold under this Agreement shall be the sole responsibility of the Company, and Cowen shall have no obligation
in connection with such compliance. The issuance and sale of Common Stock through Cowen 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 (as defined below)
to issue the Common Stock.


 


The Company shall file, in accordance with the
provisions of the Securities Act of 1933, as amended, and the rules and regulations thereunder (collectively, the “Securities
Act”), with the Commission a registration statement on Form S-3, including a base prospectus, relating to certain
securities, including the Common Stock, to be issued from time to time by the Company, and which incorporates by reference documents
that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and
the rules and regulations thereunder (collectively, the “Exchange Act”). The Company will, if necessary,
prepare a prospectus supplement to the prospectus included as part of such registration statement specifically relating to the
Placement Shares (the “Prospectus Supplement”) to the base prospectus included as part of such registration
statement. The Company will furnish to Cowen, for use by Cowen, copies of the prospectus included as part of such registration
statement, as supplemented, if at all, by the Prospectus Supplement, relating to the Placement Shares. Except where the context
otherwise requires, such registration statement, as amended when it became effective, including all documents filed as part thereof
or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed
with the Commission pursuant to Rule 424(b) under the Securities Act or deemed to be a part of such registration statement pursuant
to Rule 430B or 462(b) of the Securities Act, is herein called the “Registration Statement.” The prospectus
relating to the Placement Shares, including all documents incorporated therein by reference, included in the Registration Statement,
as it may be supplemented by the 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, together with any
“issuer free writing prospectus,” as defined in Rule 433 of the Securities Act regulations (“Rule 433”),
relating to the Placement Shares that (i) is required to be filed with the Commission by the Company or (ii) is exempt from filing
pursuant to Rule 433(d)(5)(i), in each case in the form filed or required to be filed with the Commission or, if not required to
be filed, in the form retained in the Company’s records pursuant to Rule 433(g), is herein called the “Prospectus.”
Any reference herein to the Registration Statement, the Prospectus or any amendment or supplement thereto shall be deemed to refer
to and include the documents incorporated by reference therein, and any reference herein to the terms “amend,” “amendment”
or “supplement” with respect to the Registration Statement or the Prospectus shall be deemed to refer to and include
the filing after the execution hereof of any document with the Commission deemed to be incorporated by reference therein. For purposes
of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall
be deemed to include any copy filed with the Commission pursuant to the Electronic Data Gathering Analysis and Retrieval System
(“EDGAR”).


 



     

    



    




2.          Placements. Each time that the Company wishes to issue and sell the Placement Shares hereunder (each, a “Placement”),
it will notify Cowen by email notice (or other method mutually agreed to in writing by the parties) (a “Placement Notice”)
containing the parameters in accordance with which it desires the Placement Shares to be sold, which shall at a minimum include
the number of shares of Placement Shares to be issued, the time period during which sales are requested to be made, any limitation
on the number of Placement Shares that may be sold in any one Trading Day (as defined in Section 3) and any minimum price below
which sales may not be made, a form of which containing such minimum sales parameters necessary is attached hereto as Schedule
1. The Placement Notice shall originate from any of the individuals from the Company set forth on Schedule 2
(with a copy to each of the other individuals from the Company listed on such schedule), and shall be addressed to each of
the individuals from Cowen set forth on Schedule 2, as such Schedule 2 may be amended from time to
time. The Placement Notice shall be effective upon receipt by Cowen unless and until (i) in accordance with the notice requirements
set forth in Section 4, Cowen declines to accept the terms contained therein for any reason, in its sole discretion, (ii) the entire
amount of the Placement Shares have been sold, (iii) in accordance with the notice requirements set forth in Section 4, the Company
suspends or terminates the Placement Notice, (iv) the Company issues a subsequent Placement Notice with parameters superseding
those on the earlier dated Placement Notice, or (v) the Agreement has been terminated under the provisions of Section 11.
The amount of any discount, commission or other compensation to be paid by the Company to Cowen in connection with the sale of
the Placement Shares shall be calculated in accordance with the terms set forth in Schedule 3. It is expressly acknowledged
and agreed that neither the Company nor Cowen will have any obligation whatsoever with respect to a Placement or any Placement
Shares unless and until the Company delivers a Placement Notice to Cowen and Cowen 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.


 



    	 	- 2 -	 



    



    




3.          Sale
of Placement Shares by Cowen. Subject to the terms and conditions herein set forth, upon the Company’s delivery 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, Cowen, for the period specified in the Placement Notice, will use its commercially
reasonable efforts consistent with its normal trading and sales practices and applicable state and federal laws, rules and regulations
and the rules of the Nasdaq Stock Market, Inc. (“Nasdaq”) to sell such Placement Shares up to the amount
specified, and otherwise in accordance with the terms of such Placement Notice. Cowen will provide written confirmation to the
Company (including by email correspondence to each of the individuals of the Company set forth on Schedule 2, if receipt of such
correspondence is actually acknowledged by any of the individuals to whom the notice is sent, other than via auto-reply) no later
than the opening of the Trading Day (as defined below) immediately following the Trading Day on which it has made sales of Placement
Shares hereunder setting forth the number of Placement Shares sold on such day, the volume-weighted average price of the Placement
Shares sold and the Net Proceeds (as defined below) payable to the Company. Subject to the terms of a Placement Notice, Cowen
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 through Nasdaq, on any other existing trading market for the
Common Stock or to or through a market maker. If expressly authorized by the Company in a Placement Notice, Cowen may also sell
Placement Shares in negotiated transactions. Notwithstanding the provisions of Section 6(ii), Cowen shall not purchase Placement
Shares for its own account as principal unless expressly authorized to do so by the Company in a Placement Notice. The Company
acknowledges and agrees that (i) there can be no assurance that Cowen will be successful in selling Placement Shares, and (ii)
Cowen 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 Cowen 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 the Company’s Common Stock is purchased and sold on the principal market on which
the Common Stock is listed or quoted.


 


4.         Suspension
of Sales.


 


(a)      The
Company or Cowen may, upon notice to the other party in writing (including by email correspondence to each of the individuals
of the other party set forth on Schedule 2, if receipt of such correspondence is actually acknowledged by any
of the individuals to whom the notice is sent, other than via auto-reply) or by telephone (confirmed immediately by
verifiable facsimile transmission or email correspondence to each of the individuals of the other party set forth on Schedule
2), suspend any sale of Placement Shares; provided, however, that such suspension shall not affect or impair
either party’s obligations with respect to any Placement Shares sold hereunder prior to the receipt of such notice.
Each of the parties agrees that no such notice under this Section 4 shall be effective against the other unless it is
made to one of the individuals named on Schedule 2 hereto, as such schedule may be amended from time to
time.


 



    	 	- 3 -	 



    



    




(b)      Notwithstanding any other provision of this Agreement,
during any period in which the Company is in possession of material non-public information, the Company and Cowen agree that (i)
no sale of Placement Shares will take place, (ii) the Company shall not request the sale of any Placement Shares, and (iii) Cowen
shall not be obligated to sell or offer to sell any Placement Shares.


 


5.        
Settlement.


 


(a)      Settlement of Placement Shares.
Unless otherwise specified in the applicable Placement Notice, settlement for sales of Placement Shares will occur on the third
(3rd) Trading Day (or such earlier day as is industry practice for regular-way trading) following the date on which
such sales are made (each, a “Settlement Date” and the first such settlement date, the “First
Delivery Date”). The amount of proceeds to be delivered to the Company on a Settlement Date against receipt of the
Placement Shares sold (the “Net Proceeds”) will be equal to the aggregate sales price received by Cowen
at which such Placement Shares were sold, after deduction for (i) Cowen’s commission, discount or other compensation
for such sales payable by the Company pursuant to Section 2 hereof, (ii) any other amounts due and payable by the Company
to Cowen 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 Cowen’s or its designee’s account (provided Cowen shall have given the Company written
notice of such designee at least one Trading Day prior to the Settlement Date) at The Depository Trust Company through its Deposit
and Withdrawal at Custodian System or by such other means of delivery as may be mutually agreed upon by the parties hereto which
in all cases shall be freely tradable, transferable, registered shares in good deliverable form. On each Settlement Date, Cowen
will deliver the related Net Proceeds in same day funds to an account designated by the Company on, or prior to, the Settlement
Date. Cowen will be responsible for providing 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 duly authorized Placement Shares on a Settlement Date (other than as a result of a failure by Cowen
to provide instructions for delivery), the Company agrees that in addition to and in no way limiting the rights and obligations
set forth in Section 9(a) (Indemnification and Contribution) hereto, it will (i) hold Cowen harmless against any loss,
claim, damage, or reasonable, documented 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 Cowen (without duplication) any commission, discount, or other compensation
to which it would otherwise have been entitled absent such default.


 


6.          Representations and Warranties of the Company. The Company represents and warrants to, and agrees with, Cowen that,
unless such representation or warranty specifies otherwise, as of the date of this Agreement, each Representation Date (as defined
in Section 6(m)), each date on which a Placement Notice is given, and any date on which Placement Shares are sold hereunder:


 



    	 	- 4 -	 



    



    




(a)   
   Compliance with Registration Requirements. The Registration Statement and any Rule 462(b)
Registration Statement have been declared effective by the Commission under the Securities Act. The Company has complied to
the Commission’s satisfaction with all requests of the Commission for additional or supplemental information related to
the Registration Statement or the Prospectus. No stop order suspending the effectiveness of the Registration Statement or any
Rule 462(b) Registration Statement is in effect and no proceedings for such purpose have been instituted or are pending
or, to the best knowledge of the Company, contemplated or threatened by the Commission. The Company meets the requirements
for use of Form S-3 under the Securities Act. The sale of the Placement Shares hereunder meets the requirements or General
Instruction I.B.1 of Form S-3.


 


(b)       No Misstatement or Omission.
The Prospectus when filed complied and, as amended or supplemented, if applicable, will comply in all material respects with the
Securities Act. Each of the Registration Statement, any Rule 462(b) Registration Statement, the Prospectus and any post-effective
amendments or supplements thereto, at the time it became effective or its date, as applicable, complied and as of each of the Settlement
Dates, if any, complied in all material respects with the Securities Act and did not and, as of each Settlement Date, if any, did
not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading. The Prospectus, as amended or supplemented, as of its date, did not
and, as of each of the Settlement Dates, if any, will not contain any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
The representations and warranties set forth in the two immediately preceding sentences do not apply to statements in or omissions
from the Registration Statement, any Rule 462(b) Registration Statement, or any post-effective amendment thereto, or the Prospectus,
or any amendments or supplements thereto, made in reliance upon and in conformity with information furnished to the Company in
writing by Cowen expressly for use therein. There are no contracts or other documents required to be described in the Prospectus
or to be filed as exhibits to the Registration Statement which have not been described or filed as required.


 


(c)      Offering Materials
Furnished to Cowen. The Company has delivered to Cowen one complete copy of the Registration Statement and a copy of each
consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without
exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as Cowen has reasonably
requested.


 


(d)       Not an Ineligible Issuer.
The Company currently is not an “ineligible issuer,” as defined in Rule 405 of the rules and regulation of the Commission.
The Company agrees to notify Cowen promptly upon the Company becoming an “ineligible issuer.”


 



    	 	- 5 -	 



    



    




(e)       Distribution of Offering Material
By the Company. The Company has not distributed and will not distribute, prior to the completion of Cowen’s distribution
of the Placement Shares, any offering material in connection with the offering and sale of the Placement Shares other than the
Prospectus or the Registration Statement.


 


(f)       The Sales Agreement. This
Agreement has been duly authorized, executed and delivered by, and is a valid and binding agreement of, the Company, enforceable
in accordance with its terms, except as rights to indemnification hereunder may be limited by applicable law and except as the
enforcement hereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting
the rights and remedies of creditors or by general equitable principles.


 


(g)      Authorization of the Common
Stock. The Placement Shares, when issued and delivered, will be duly authorized for issuance and sale pursuant to this Agreement
and, when issued and delivered by the Company against payment therefor pursuant to this Agreement, will be duly authorized, validly
issued, fully paid and nonassessable.


 


(h)       No Applicable Registration or
Other Similar Rights. There are no persons with registration or other similar rights to have any equity or debt securities
registered for sale under the Registration Statement or included in the offering contemplated by this Agreement, except for such
rights as have been duly waived.


 


(i)        No Material Adverse Change.
Except as otherwise disclosed in the Prospectus, subsequent to the respective dates as of which information is given in the Prospectus:
(i) there has been no material adverse change, or any development that could reasonably be expected to result in a material
adverse change, in the condition, financial or otherwise, or in the earnings, business, operations or prospects, whether or not
arising from transactions in the ordinary course of business, of the Company and its subsidiaries, considered as one entity (any
such change is called a “Material Adverse Change”); (ii) the Company and its subsidiaries, considered
as one entity, have not incurred any material liability or obligation, indirect, direct or contingent, not in the ordinary course
of business nor entered into any material transaction or agreement not in the ordinary course of business: and (iii) there
has been no dividend or distribution of any kind declared, paid or made by the Company or, except for regular quarterly dividends
publicly announced by the Company or dividends paid to the Company or other subsidiaries, by any of its subsidiaries on any class
of capital stock or repurchase or redemption by the Company or any of its subsidiaries of any class of capital stock.


 


(j)        Independent Accountants.
Ernst & Young LLP, who has expressed its opinion with respect to the financial statements (which term as used in this Agreement
includes the related notes thereto) and supporting schedules filed with the Commission or incorporated by reference as a part of
the Registration Statement and included in the Prospectus, is an independent registered public accounting firm as required by the
Securities Act and the Exchange Act.


 


(k)      Preparation of the Financial
Statements. The financial statements filed with the Commission as a part of or incorporated by reference in the Registration
Statement and included in the Prospectus present fairly the consolidated financial position of the Company and its subsidiaries
as of and at the dates indicated and the results of their operations and cash flows for the periods specified. The supporting schedules
included in or incorporated in the Registration Statement present fairly the information required to be stated therein. Such financial
statements and supporting schedules have been prepared in conformity with generally accepted accounting principles as applied in
the United States applied on a consistent basis throughout the periods involved, except as may be expressly stated in the related
notes thereto. No other financial statements or supporting schedules are required to be included in or incorporated in the Registration
Statement. The financial data set forth or incorporated in the Prospectus under the captions “Ratio of Earnings to Fixed
Charges” and “Selected Financial Data” fairly present the information set forth therein on a basis consistent
with that of the audited financial statements contained, incorporated or deemed to be incorporated in the Registration Statement.


 



    	 	- 6 -	 



    



    




(l)       The interactive data in eXtensible
Business Reporting Language included or incorporated by reference in each Registration Statement fairly presents the information
called for in all material respects and has been prepared in accordance with the Commission’s rules and guidelines applicable
thereto.


 


(m)      Incorporation and Good Standing
of the Company and its Subsidiaries. The Company has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the State of Delaware and has corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Prospectus and to enter into and perform its obligations under this Agreement.
Each subsidiary of the Company has been duly organized and is validly existing as a corporation in good standing under the laws
of the jurisdiction of its organization and has the requisite power and authority to own, lease and operate its properties and
to conduct its business as described in the Prospectus. Each of the Company and the subsidiaries is duly qualified as a foreign
corporation or foreign partnership to transact business and is in good standing in each jurisdiction in which such qualification
is required, whether by reason of the ownership or leasing of property or the conduct of business, except for such jurisdictions
where the failure to so qualify or to be in good standing would not, individually or in the aggregate, result in a Material Adverse
Change. Except as described in the Prospectus, all of the issued and outstanding equity interests of the subsidiaries have been
duly authorized and validly issued, are fully paid and nonassessable and are owned by the Company free and clear of any security
interest, mortgage, pledge, lien, encumbrance or claim. The Company does not own or control, directly or indirectly, any corporation,
association or other entity other than the subsidiaries listed in Exhibit 21.1 to the Company’s Annual Report on Form 10-K
for the most recently ended fiscal year and other than (i) those subsidiaries not required to be listed on Exhibit 21.1
by Item 601 of Regulation S-K under the Exchange Act and (ii) those subsidiaries formed since the last day of the most
recently ended fiscal year.


 


(n)      Capital Stock Matters. The
Common Stock conforms in all material respects to the description thereof contained in the Prospectus. All of the issued and outstanding
shares of Common Stock have been duly authorized and validly issued, are fully paid and nonassessable and have been issued in compliance
with federal and state securities laws. None of the outstanding shares of Common Stock were issued in violation of any preemptive
rights, rights of first refusal or other similar rights to subscribe for or purchase securities of the Company. There are no authorized
or outstanding options, warrants, preemptive rights, rights of first refusal or other rights to purchase, or equity or debt securities
convertible into or exchangeable or exercisable for, any capital stock of the Company or any of its subsidiaries other than those
accurately described in all material respects in the Prospectus. The description of the Company’s stock option, stock bonus
and other stock plans or arrangements, and the options or other rights granted thereunder, set forth in the Prospectus accurately
and fairly presents in all material respects the information required to be shown with respect to such plans, arrangements, options
and rights.


 



    	 	- 7 -	 



    



    




(o)      Non-Contravention of Existing
Instruments; No Further Authorizations or Approvals Required. Neither the Company nor any of its subsidiaries is in violation
of its charter or by-laws or is in default (or, with the giving of notice or lapse of time, would be in default) (“Default”)
under any indenture, mortgage, loan or credit agreement, note, contract, franchise, lease or other instrument to which the Company
or any of its subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of
the Company or any of its subsidiaries is subject (each, an “Existing Instrument”), except for such Defaults
as would not, individually or in the aggregate, result in a Material Adverse Change. The Company’s execution, delivery and
performance of this Agreement and consummation of the transactions contemplated hereby and by the Prospectus (i) have been
duly authorized by all necessary corporate action and will not result in any violation of the provisions of the charter or by-laws
of the Company or any subsidiary, (ii) will not conflict with or constitute a breach of, or Default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries
pursuant to, or require the consent of any other party to, any Existing Instrument, except for such conflicts, breaches, Defaults,
liens, charges or encumbrances as would not, individually or in the aggregate, result in a Material Adverse Change and (iii) will
not result in any violation of any law, administrative regulation or administrative or court decree applicable to the Company or
any subsidiary. No consent, approval, authorization or other order of, or registration or filing with, any court or other governmental
or regulatory authority or agency, is required for the Company’s execution, delivery and performance of this Agreement and
consummation of the transactions contemplated hereby and by the Prospectus, except such as have been obtained or made by the Company
and are in full force and effect under the Securities Act, applicable state or foreign securities or blue sky laws and from the
Financial Industry Regulatory Authority (“FINRA”).


 


(p)      No Material Actions or Proceedings.
Except as disclosed in the Prospectus, there are no legal or governmental actions, suits or proceedings pending or, to the best
of the Company’s knowledge, threatened (i) against or affecting the Company or any of its subsidiaries, (ii) which
has as the subject thereof any officer or director of, or property owned or leased by, the Company or any of its subsidiaries or
(iii) relating to environmental or discrimination matters, where in any such case (A) there is a reasonable possibility
that such action, suit or proceeding might be determined adversely to the Company or such subsidiary and (B) any such action,
suit or proceeding, if so determined adversely, would reasonably be expected to result in a Material Adverse Change or adversely
affect the consummation of the transactions contemplated by this Agreement. No material labor dispute with the employees of the
Company or any of its subsidiaries exists or, to the Company’s knowledge, is threatened or imminent.


 



    	 	- 8 -	 



    



    




(q)      All Necessary Permits, etc.
The Company and each subsidiary possess such valid and current certificates, authorizations or permits issued by the appropriate
state, federal or foreign regulatory agencies or bodies necessary to conduct their respective businesses, other than those the
failure to possess or own would not result in a Material Adverse Change, and neither the Company nor any subsidiary has received
any notice of proceedings relating to the revocation or modification of, or non-compliance with, any such certificate, authorization
or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could result in a Material
Adverse Change.


 


(r)      Tax Law Compliance. The
Company and its consolidated subsidiaries have filed all necessary federal, state and foreign income, property and franchise tax
returns and have paid all taxes required to be paid by any of them and, if due and payable, any related or similar assessment,
fine or penalty levied against any of them except as may be being contested in good faith and by appropriate proceedings. The Company
has made adequate charges, accruals and reserves in the applicable financial statements referred to in Section 1 (i) above
in respect of all federal, state and foreign income, property and franchise taxes for all periods as to which the tax liability
of the Company or any of its consolidated subsidiaries has not been finally determined.


 


(s)      Company Not an “Investment
Company”. The Company has been advised of the rules and requirements under the Investment Company Act of 1940, as amended
(the “Investment Company Act”). The Company is not, and after receipt of payment for the Common Stock
will not be, an “investment company” within the meaning of Investment Company Act.


 


(t)       Insurance. Except as otherwise
described in the Prospectus, each of the Company and its subsidiaries are insured by insurers of recognized financial responsibility
with policies in such amounts and with such deductibles and covering such risks as are generally deemed prudent and customary for
the business for which it is engaged including, but not limited to, policies covering real and personal property owned or leased
by the Company and its subsidiaries against theft, damage, destruction, acts of vandalism and earthquakes. The Company has no reason
to believe that it or any subsidiary will not be able (i) to renew its existing insurance coverage as and when such policies
expire or (ii) to obtain comparable coverage from similar institutions as may be necessary or appropriate to conduct its business
as now conducted and at a cost that would not result in a Material Adverse Change.


 


(u)      No Price Stabilization or Manipulation.
The Company has not taken and will not take, directly or indirectly, any action designed to or that might be reasonably expected
to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale
of the Placement Shares.


 


(v)      Related Party Transactions.
There are no business relationships or related-party transactions involving the Company or any subsidiary or any other person required
to be described in the Prospectus which have not been described as required.


 


(w)      Exchange Act Compliance.
The documents incorporated or deemed to be incorporated by reference in the Prospectus, at the time they were or hereafter are
filed with the Commission, complied and will comply in all material respects with the requirements of the Exchange Act, and, when
read together with the other information in the Prospectus, at the Settlement Dates, will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary to make the fact required to be stated
therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.


 



    	 	- 9 -	 



    



    




(x)      No Unlawful Contributions or
Other Payments. Neither the Company nor any of its subsidiaries nor, to the best of the Company’s knowledge, any director,
officer, employee or agent of the Company or any subsidiary has (i) used any corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from corporate funds; (iii) violated or is in violation of any provision of
the Foreign Corrupt Practices Act of 1977, as amended; or (iv) made any bribe, rebate, payoff, influence payment, kickback or other
unlawful payment.


 


(y)      Compliance with Money Laundering
Laws. The operations of the Company and its subsidiaries are and have been conducted at all times in compliance with applicable
financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended,
the money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations
or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”)
and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving
the Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or, the knowledge of the Company, threatened.


 


(z)      Compliance with OFAC. None
of the Company, any of its subsidiaries or, to the knowledge of the Company, any director, officer, agent, employee or affiliate
of the Company or any of its subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Office
Control of the U.S. Department of the Treasury (“OFAC”); and the Company will not, directly or indirectly,
use the proceeds of the offering of the Placement Shares hereunder, or lend, contribute or otherwise make available such proceeds
to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently
subject to any U.S. sanctions administered by OFAC.


 


(aa)    Company’s Accounting
System. The Company maintains a system of “internal control over financial reporting” (as such term is defined
in Rule 13a-15(f) of the General Rules and Regulations under the Exchange Act (the “Exchange Act Rules”))
that complies with the requirements of the Exchange Act and has been designed by their respective principal executive and principal
financial officers, or under their supervision, to provide reasonable assurances 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 U.S. GAAP and to maintain accountability for assets; (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 existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Company’s
internal control over financial reporting is effective. Except as described in the Prospectus, since the end of the Company’s
most recent audited fiscal year, there has been (A) no material weakness in the Company’s internal control over financial
reporting (whether or not remediated) and (B) no change in the Company’s internal control over financial reporting that has
materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.


 



    	 	- 10 -	 



    



    




(bb)    Disclosure Controls. The
Company maintains disclosure controls and procedures (as such is defined in Rule 13a-15(e) of the Exchange Act Rules) that comply
with the requirements of the Exchange Act; such disclosure controls and procedures have been designed to ensure that information
required to be disclosed by the Company in reports that it files or submit under the Exchange Act is recorded, processed, summarized
and reported within the time periods specified in the Commission’s rules and forms, including controls and procedures designed
to ensure that such information is accumulated and communicated to the Company’s management to allow timely decisions regarding
disclosures. The Company has conducted evaluations of the effectiveness of their disclosure controls as required by Rule 13a-15
of the Exchange Act.


 


(cc)    Compliance with Environmental
Laws. Except as otherwise described in the Prospectus, and except as would not, individually or in the aggregate, result in
a Material Adverse Change (i) neither the Company nor any of its subsidiaries is in violation of any federal, state, local
or foreign law or regulation relating to pollution or protection of human health or the environment (including, without limitation,
ambient air, surface water, groundwater, land surface or subsurface strata) or wildlife, including without limitation, laws and
regulations relating to emissions, discharges, releases or threatened releases of chemicals, pollutants, contaminants, wastes,
toxic substances, hazardous substances, petroleum and petroleum products (collectively, “Materials of Environmental
Concern”), or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Materials of Environmental Concern (collectively, “Environmental Laws”), which
violation includes, but is not limited to, noncompliance with any permits or other governmental authorizations required for the
operation of the business of the Company or its subsidiaries under applicable Environmental Laws, or noncompliance with the terms
and conditions thereof, nor has the Company or any of its subsidiaries received any written communication, whether from a governmental
authority, citizens group, employee or otherwise, that alleges that the Company or any of its subsidiaries is in violation of any
Environmental Law; (ii) there is no claim, action or cause of action filed with a court or governmental authority, no investigation
with respect to which the Company has received written notice, and no written notice by any person or entity alleging potential
liability for investigatory costs, cleanup costs, governmental responses costs, natural resources damages, property damages, personal
injuries, attorneys’ fees or penalties arising out of, based on or resulting from the presence, or release into the environment,
of any Material of Environmental Concern at any location owned, leased or operated by the Company or any of its subsidiaries, now
or in the past (collectively, “Environmental Claims”), pending or, to the Company’s knowledge,
threatened against the Company or any of its subsidiaries or any person or entity whose liability for any Environmental Claim the
Company or any of its subsidiaries has retained or assumed either contractually or by operation of law; and (iii) to the best
of the Company’s knowledge, there are no past or present actions, activities, circumstances, conditions, events or incidents,
including, without limitation, the release, emission, discharge, presence or disposal of any Material of Environmental Concern,
that reasonably could result in a violation of any Environmental Law or form the basis of a potential Environmental Claim against
the Company or any of its subsidiaries or against any person or entity whose liability for any Environmental Claim the Company
or any of its subsidiaries has retained or assumed either contractually or by operation of law.





 



    	 	- 11 -	 



    



    




(dd)     Intellectual Property. The
Company and its subsidiaries own or possess the valid right to use all (i) patents, patent applications, trademarks, trademark
registrations, service marks, service mark registrations, Internet domain name registrations, copyrights, copyright registrations,
licenses, trade secret rights (“Intellectual Property Rights”) and (ii) inventions, software, works of
authorships, trademarks, service marks, trade names, databases, formulae, know how, Internet domain names and other intellectual
property (including trade secrets and other unpatented and/or unpatentable proprietary confidential information, systems, or procedures)
(collectively, “Intellectual Property Assets”) necessary to conduct their respective businesses as currently
conducted, and as proposed to be conducted and described in the Prospectus, except as would not reasonably be expected to result
in a Material Adverse Change. The Company and its subsidiaries have not received any opinion from their legal counsel concluding
that any activities of their respective businesses infringe, misappropriate, or otherwise violate, valid and enforceable Intellectual
Property Rights of any other person, and have not received written notice of any challenge, which is to their knowledge still pending,
by any other person to the rights of the Company and its subsidiaries with respect to any Intellectual Property Rights or Intellectual
Property Assets owned or used by the Company or its subsidiaries. To the knowledge of the Company, the Company and its subsidiaries’
respective businesses as now conducted do not give rise to any infringement of, any misappropriation of, or other violation of,
any valid and enforceable Intellectual Property Rights of any other person. All licenses for the use of the Intellectual Property
Rights described in the Prospectus are valid, binding upon, and enforceable by or against the parties thereto in accordance to
its terms. The Company has complied in all material respects with, and is not in breach nor has received any asserted or threatened
claim of breach of any Intellectual Property license, and the Company has no knowledge of any breach or anticipated breach by any
other person to any Intellectual Property license. Except as described in the Prospectus, no claim has been made against the Company
alleging the infringement by the Company of any patent, trademark, service mark, trade name, copyright, trade secret, license in
or other intellectual property right or franchise right of any person. The Company has taken all reasonable steps to protect, maintain
and safeguard its Intellectual Property Rights, including the execution of appropriate nondisclosure and confidentiality agreements.
The consummation of the transactions contemplated by this Agreement will not result in the loss or impairment of or payment of
any additional amounts with respect to, nor require the consent of any other person in respect of, the Company's right to own,
use, or hold for use any of the Intellectual Property Rights as owned, used or held for use in the conduct of the business as currently
conducted.


 









    	 	- 12 -	 



    



    




 


(ee)     FDA. As to each product
subject to the jurisdiction of the U.S. Food and Drug Administration (“FDA”) under the Federal Food,
Drug and Cosmetic Act, as amended, and the regulations thereunder (“FDCA”) that is manufactured, packaged,
labeled, tested, distributed, sold, and/or marketed by the Company or any of its subsidiaries (each such product, a “Product”),
such Product is being manufactured, packaged, labeled, tested, distributed, sold and/or marketed by the Company in compliance with
all applicable requirements under FDCA and similar laws, rules and regulations relating to registration, investigational use, premarket
clearance, licensure, or application approval, good manufacturing practices, good laboratory practices, good clinical practices,
product listing, quotas, labeling, advertising, record keeping and filing of reports, except where the failure to be in compliance
would not have a Material Adverse Change. There is no pending, completed or, to the Company’s knowledge, threatened, action
(including any lawsuit, arbitration, or legal or administrative or regulatory proceeding, charge, complaint, or investigation)
against the Company or any of its subsidiaries, and none of the Company or any of its subsidiaries has received any notice, warning
letter or other communication from the FDA or any other governmental entity, which (i) contests the premarket clearance, licensure,
registration, or approval of, the uses of, the distribution of, the manufacturing or packaging of, the testing of, the sale of,
or the labeling and promotion of any Product, (ii) withdraws its approval of, requests the recall, suspension, or seizure of, or
withdraws or orders the withdrawal of advertising or sales promotional materials relating to, any Product, (iii) imposes a clinical
hold on any clinical investigation by the Company or any of its subsidiaries, (iv) enjoins production at any facility of the Company
or any of its subsidiaries, (v) enters or proposes to enter into a consent decree of permanent injunction with the Company or any
of its subsidiaries, or (vi) otherwise alleges any violation of any laws, rules or regulations by the Company or any of its subsidiaries,
and which, either individually or in the aggregate, would have a Material Adverse Change. The properties, business and operations
of the Company have been and are being conducted in all material respects in accordance with all applicable laws, rules and regulations
of the FDA. The Company has not been informed by the FDA that the FDA will prohibit the marketing, sale, license or use in the
United States of any product proposed to be developed, produced or marketed by the Company nor has the FDA expressed any concern
as to approving or clearing for marketing any product being developed or proposed to be developed by the Company.


 


(ff)      Listing. The Company is
subject to and is in compliance in all material respects with the reporting requirements of Section 13 or Section 15(d) of the
Exchange Act. The Common Stock is registered pursuant to Section 12(b) or Section 12(g) of the Exchange Act and is listed on the
Nasdaq, and the Company has taken no action designed to, or reasonably likely to have the effect of, terminating the registration
of the Common Stock under the Exchange Act or delisting the Common Stock from the Exchange, nor has the Company received any notification
that the Commission or Nasdaq is contemplating terminating such registration or listing.


 


(gg)    Brokers. Except for Cowen,
there is no broker, finder or other party that is entitled to receive from the Company any brokerage or finder’s fee or other
fee or commission as a result of any transactions contemplated by this Agreement.


 


(hh)     No Outstanding Loans or Other
Indebtedness. Except as described in the Prospectus, there are no outstanding loans, advances (except normal advances for business
expenses in the ordinary course of business) or guarantees or indebtedness by the Company to or for the benefit of any of the officers
or directors of the Company or any of the members of any of them.


 



    	 	- 13 -	 



    



    




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


 


(jj)       Cowen Purchases. The Company
acknowledges and agrees that Cowen has informed the Company that Cowen may, to the extent permitted under the Securities Act and
the Exchange Act, purchase and sell shares of Common Stock for its own account while this Agreement is in effect, provided,
that the Company shall not be deemed to have authorized or consented to any such purchases or sales by Cowen.


 


(kk)     Compliance with Laws. To the
Company’s knowledge, it and each of its subsidiaries are not conducting business in compliance with all applicable laws,
rules and regulations of the jurisdictions in which it is conducting business, except where failure to be so in compliance would
not result in a Material Adverse Change.


 


Any certificate signed by an officer of the Company and delivered
to Cowen or to counsel for Cowen shall be deemed to be a representation and warranty by the Company to Cowen as to the matters
set forth therein.


 


The Company acknowledges that Cowen and, for purposes of the opinions
to be delivered pursuant to Section 7 hereof, counsel to the Company and counsel to Cowen, will rely upon the accuracy and
truthfulness of the foregoing representations and hereby consents to such reliance.


 


7.          Covenants
of the Company. The Company covenants and agrees with Cowen 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 Cowen 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 Cowen 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 (insofar as it relates to the transactions contemplated
hereby), (ii) the Company will prepare and file with the Commission, promptly upon Cowen’s reasonable request, any amendments
or supplements to the Registration Statement or Prospectus that, in Cowen’s reasonable opinion, may be necessary or advisable
in connection with the distribution of the Placement Shares by Cowen (provided, however, that the failure of Cowen to make
such request shall not relieve the Company of any obligation or liability hereunder, or affect Cowen’s right to rely on the
representations and warranties made by the Company in this Agreement and provided, further, that the only remedy that Cowen
shall have with respect to the failure to make such filing shall be to cease making sales under this Agreement until such amendment
or supplement is filed); (iii) the Company will not file any amendment or supplement to the Registration Statement or Prospectus,
other than documents incorporated by reference, relating to the Placement Shares or a security convertible into the Placement Shares
unless a copy thereof has been submitted to Cowen within a reasonable period of time before the filing and Cowen has not reasonably
objected thereto (provided, however, that the failure of Cowen to make such objection shall not relieve the Company of any
obligation or liability hereunder, or affect Cowen’s right to rely on the representations and warranties made by the Company
in this Agreement and provided, further, that the only remedy that Cowen 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 Cowen 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, other than documents incorporated by reference, to be filed with the Commission as required pursuant to the applicable
paragraph of Rule 424(b) of the Securities Act.


 



    	 	- 14 -	 



    



    




(b)     Notice of Commission Stop Orders.
The Company will advise Cowen, 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.


 


(c)      Delivery of Prospectus; Subsequent
Changes. During any period in which a Prospectus relating to the Placement Shares is required to be delivered by Cowen under
the Securities Act with respect to a pending sale of the Placement Shares, (including in circumstances where such requirement may
be satisfied pursuant to Rule 172 under the Securities Act), the Company will use its commercially reasonable efforts to 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 (taking into account any extensions available under the Exchange Act) all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14, 15(d) or any other provision
of or under the Exchange Act. If during such period any event occurs as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances then existing, not misleading, or if during such period it is necessary to amend or supplement
the Registration Statement or Prospectus to comply with the Securities Act, the Company will promptly notify Cowen 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.


 


(d)      Listing of Placement Shares.
During any period in which the Prospectus relating to the Placement Shares is required to be delivered by Cowen under the Securities
Act with respect to a pending sale of the Placement Shares (including in circumstances where such requirement may be satisfied
pursuant to Rule 172 under the Securities Act), the Company will use its commercially reasonable efforts to cause the Placement
Shares to be listed on Nasdaq and to qualify the Placement Shares for sale under the securities laws of such jurisdictions as Cowen
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.


 



    	 	- 15 -	 



    



    




(e)      Delivery of Registration Statement
and Prospectus. The Company will furnish to Cowen and its counsel (at the expense of the Company) copies of the Registration
Statement, the Prospectus (including all documents incorporated by reference therein) and all amendments and supplements to the
Registration Statement or Prospectus that are filed with the Commission during any period in which a Prospectus relating to the
Placement Shares is required to be delivered under the Securities Act (including all documents filed with the Commission during
such period that are deemed to be incorporated by reference therein), in each case as soon as reasonably practicable and in such
quantities as Cowen may from time to time reasonably request and, at Cowen’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 Cowen 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 11 hereunder, will pay the following expenses all incident to the performance of its obligations hereunder, including,
but not limited to, expenses relating to (i) the preparation, printing and filing of the Registration Statement and each amendment
and supplement thereto, of each Prospectus and of each amendment and supplement thereto, (ii) the preparation, issuance and delivery
of the Placement Shares, (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 (provided, however, that any fees or disbursements of counsel for
Cowen in connection therewith shall be paid by Cowen except as set forth in (vii) below), (iv) the printing and delivery to Cowen
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 Nasdaq, (vi) the filing fees and expenses,
if any, of the Commission, (vii) the filing fees and associated legal expenses of Cowen’s outside counsel for filings with
the FINRA Corporate Financing Department, such legal expense reimbursement not to exceed $12,500 and, (viii) the reasonable fees
and disbursements of Cowen’s counsel in an amount not to exceed $50,000, provided, however, in no event shall the total compensation
paid to Cowen exceed 8.0% of the gross proceeds to the Company from the sale of Placement Shares.


 


(h)      Use of Proceeds. The Company
will use the Net Proceeds as described in the Prospectus in the section entitled “Use of Proceeds.”


 



    	 	- 16 -	 



    



    




(i)       Notice of Other Sales. During
the pendency of any Placement Notice given hereunder, and for three (3) trading days following the termination of any Placement
Notice given hereunder, the Company shall provide Cowen notice as promptly as reasonably possible before it offers to sell, contracts
to sell, sells, grants any option to sell or otherwise disposes of any shares of Common Stock (other than Placement Shares offered
pursuant to the provisions of this Agreement) or securities convertible into or exchangeable for Common Stock, warrants or any
rights to purchase or acquire Common Stock; provided, that such notice shall not be required in connection with the (i)
issuance, grant or sale of Common Stock, options to purchase shares of Common Stock or Common Stock issuable upon the exercise
of options or other equity awards pursuant to the any employee stock purchase, stock option, stock bonus or other stock plan or
arrangement described in the Prospectus, (ii) the issuance of securities in connection with an acquisition, merger or sale or purchase
of assets or (iii) the issuance or sale of Common Stock pursuant to any dividend reinvestment plan that the Company may adopt from
time to time provided the implementation of such is disclosed to Cowen in advance or (iv) any shares of common stock issuable upon
the exchange, conversion or redemption of securities or the exercise of warrants, options or other rights in effect or outstanding,
or (v) any shares of common stock, or securities convertible into or exercisable for common stock, offered and sold in a privately
negotiated transaction to vendors, customers, investors, strategic partners or potential strategic partners and otherwise conducted
in a manner so as not to be integrated with the offering of common stock hereby.


 


(j)       Change of Circumstances.
The Company will, at any time during a fiscal quarter in which the Company intends to tender a Placement Notice or sell Placement
Shares, advise Cowen promptly after it shall have received notice or obtained knowledge thereof, of any information or fact that
would alter or affect in any material respect any opinion, certificate, letter or other document provided to Cowen pursuant to
this Agreement.


 


(k)      Due Diligence Cooperation.
During the term of this Agreement, the Company will cooperate with any reasonable due diligence review conducted by Cowen 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 Cowen 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 amount of Placement Shares sold through Cowen, the Net Proceeds to the Company and the compensation
payable by the Company to Cowen 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.


 



    	 	- 17 -	 



    



    




(m)     Representation Dates; Certificate.
On or prior to the First Delivery Date and each time the Company (i) files the Prospectus relating to the Placement Shares or amends
or supplements the Registration Statement or the Prospectus relating to the Placement Shares (other than a 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; or (iv) files a report on Form 8-K containing amended financial information (other than an earnings release) under
the Exchange Act (each date of filing of one or more of the documents referred to in clauses (i) through (iv) shall be a “Representation
Date”); the Company shall furnish Cowen (but in the case of clause (iv) above only if (1) a Placement Notice is pending
or is subsequently issued, and (2) Cowen reasonably determines that the information contained in such Form 8-K is material to a
holder of Common Stock) with a certificate, in the form attached hereto as Exhibit 7(m) within three (3) Trading Days of
any Representation Date if requested by Cowen. The requirement to provide a certificate under this Section 7(m) shall be automatically
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 Cowen with a certificate under this Section 7(m), then before the Company delivers the Placement Notice
or Cowen sells any Placement Shares, the Company shall provide Cowen with a certificate, in the form attached hereto as Exhibit
7(m), dated the date of the Placement Notice.


 





(n) Legal
Opinion. On or prior to the First Delivery Date and within three (3) 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 Cowen a written opinion of Morgan, Lewis & Bockius LLP (“Company
Counsel”), or other counsel satisfactory to Cowen, in form and substance satisfactory to Cowen and its counsel, dated
the date that the opinion is required to be delivered, substantially similar to the forms provided to Cowen, modified, as necessary,
to relate to the Registration Statement and the Prospectus as then amended or supplemented; provided,
however, the Company shall not be required to furnish any such opinion or statement if the Company does not intend to deliver
a Placement Notice in such calendar quarter until such time as the Company delivers its next Placement Notice; provided, further,
that the Company’s obligation to have Company Counsel furnish a negative assurance statement is conditioned upon counsel
to Cowen furnishing a negative assurance statement dated as of the same such date; provided, however, that
in lieu of such opinions for subsequent Representation Dates, counsel may furnish Cowen with a letter (a “Reliance
Letter”) to the effect that Cowen 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 at such Representation Date).



 


(o)      Comfort Letter. On or prior
to the First Delivery Date and within three (3) 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 its independent accountants to furnish Cowen letters (the “Comfort Letters”), dated the date the
Comfort Letter is delivered, in form and substance satisfactory to Cowen, (i) confirming that they are an independent registered
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 Cowen 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.


 



    	 	- 18 -	 



    



    




(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 Placement Shares or (ii) sell, bid for, or purchase the Common Stock to be issued and sold pursuant to this Agreement,
or pay anyone any compensation for soliciting purchases of the Placement Shares other than Cowen; provided, however, that the Company
may bid for and purchase shares of its common stock in accordance with Rule 10b-18 under the Exchange Act.


 


(q)     Insurance. The Company and
its subsidiaries shall maintain, or cause to be maintained, insurance in such amounts and covering such risks as is reasonable
and customary for the business for which it is engaged.


 


(r)      Compliance with Laws. The
Company and each of its subsidiaries will use commercial reasonably efforts to maintain, or cause to be maintained, all material
environmental permits, licenses and other authorizations required by federal, state and local law in order to conduct their businesses
as described in the Prospectus, and the Company and each of its subsidiaries shall conduct their businesses, or cause their businesses
to be conducted, in substantial compliance with such permits, licenses and authorizations and with applicable environmental laws,
except where the failure to maintain or be in compliance with such permits, licenses and authorizations could not reasonably be
expected to result in a Material Adverse Change.


 


(s)      Investment Company Act.
The Company will conduct its affairs in such a manner so as to reasonably ensure that neither it nor its subsidiaries will 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.


 


(t)      Securities Act and Exchange
Act. The Company will use its best efforts to comply with all requirements imposed upon it by the Securities Act and the Exchange
Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Placement Shares
as contemplated by the provisions hereof and the Prospectus.


 


(u)      No Offer to Sell. Other
than a free writing prospectus (as defined in Rule 405 under the Securities Act) approved in advance by the Company and Cowen in
its capacity as principal or agent hereunder, neither Cowen nor the Company (including its agents and representatives, other than
Cowen in its capacity as such) will make, use, prepare, authorize, approve or refer to any written communication (as defined in
Rule 405 under the Securities Act), required to be filed with the Commission, that constitutes an offer to sell or solicitation
of an offer to buy Common Stock hereunder


 



    	 	- 19 -	 



    



    




(v)      Sarbanes-Oxley Act. The
Company and its subsidiaries will use their best efforts to comply with all effective applicable provisions of the Sarbanes-Oxley
Act.


 


8.        
Conditions to Cowen’s Obligations. The obligations of Cowen 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 Cowen of a due diligence review satisfactory to Cowen in its
reasonable judgment, and to the continuing satisfaction (or waiver by Cowen in its sole discretion) of the following additional
conditions:


 


(a)      Registration Statement Effective.
The Registration Statement shall be effective and shall be available for (i) all sales of Placement Shares issued pursuant to all
prior Placement Notices 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 or any of its subsidiaries 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 such documents so that, in the case of the Registration
Statement, it will not contain any materially untrue statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not misleading and, that in the case of the Prospectus, it will not
contain any materially untrue statement of a material fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.


 


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


 



    	 	- 20 -	 



    



    




(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
Change or any development that could reasonably be expected to result in a Material Adverse Change.


 


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


 


(f)      Cowen Counsel Legal Opinion.
Cowen shall have received from LeClairRyan, A Professional Corporation, counsel for Cowen, such opinion or opinions, on or before
the date on which the delivery of the Company Counsel legal opinion is required pursuant to Section 7(n), with respect to
such matters as Cowen may reasonably require, and the Company shall have furnished to such counsel such documents as they request
for enabling them to pass upon such matters.


 


(g)      Comfort Letter. Cowen shall
have received the Comfort Letter required to be delivered pursuant to Section 7(o) on or before the date on which such delivery
of such Comfort Letter is required pursuant to Section 7(o).


 


(h)      Representation Certificate.
Cowen 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).


 


(i)       Secretary’s Certificate.
On or prior to the First Delivery Date, Cowen shall have received a certificate, signed on behalf of the Company by its corporate
Secretary, in form and substance satisfactory to Cowen and its counsel.


 


(j)       No Suspension. Trading in
the Common Stock shall not have been suspended on Nasdaq.


 


(k)      Other Materials. On each
date on which the Company is required to deliver a certificate pursuant to Section 7(m), the Company shall have furnished
to Cowen such appropriate further information, certificates and documents as Cowen may have reasonably requested. All such opinions,
certificates, letters and other documents shall have been in compliance with the provisions hereof. The Company will furnish Cowen
with such conformed copies of such opinions, certificates, letters and other documents as Cowen shall have reasonably requested.


 


(l)       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.


 


(m)     Approval for Listing. The
Placement Shares shall either have been (i) approved for listing on Nasdaq, subject only to notice of issuance, or (ii) the Company
shall have filed an application for listing of the Placement Shares on Nasdaq at, or prior to, the issuance of any Placement Notice.


 



    	 	- 21 -	 



    



    




(n)      No Termination Event. There
shall not have occurred any event that would permit Cowen to terminate this Agreement pursuant to Section 11(a).


 


9.         
Indemnification and Contribution.


 


(a)      Company Indemnification.
The Company agrees to indemnify and hold harmless Cowen, the directors, officers, partners, employees and agents of Cowen and each
person, if any, who (i) controls Cowen 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 Cowen (a “Cowen Affiliate”) from and against
any and all losses, claims, liabilities, expenses and damages (including, but not limited to, any and all reasonable investigative,
legal and other expenses incurred in connection with, and any and all amounts paid in settlement (in accordance with Section
9(c)) of, any action, suit or proceeding between any of the indemnified parties and any indemnifying parties or between any
indemnified party and any third party, or otherwise, or any claim asserted), as and when incurred, to which Cowen, or any such
person, may become subject under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, liabilities, expenses or damages arise out of or are based, directly or
indirectly, on (x) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement
or the Prospectus or any amendment or supplement to the Registration Statement or the Prospectus or in any free writing prospectus
or based on written information furnished by or on behalf of the Company in connection with this Agreement filed in any jurisdiction
in order to qualify the Common Stock under the securities laws thereof or filed with the Commission, (y) the omission or alleged
omission to state in any such document a material fact required to be stated in it or necessary to make the statements in it, (solely
with respect to the Prospectus, in light of the circumstances under which they were made), not misleading or (z) any breach by
any of the indemnifying parties of any of their respective representations, warranties and agreements contained in this Agreement;
provided, however, that this indemnity agreement shall not apply to the extent that such loss, claim, liability,
expense or damage arises from the sale of the Placement Shares pursuant to this Agreement and is caused directly or indirectly
by an untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with the Agent’s
Information. This indemnity agreement will be in addition to any liability that the Company might otherwise have.


 


(b)      Cowen Indemnification. Cowen
agrees to indemnify and hold harmless the Company and its directors and each officer of the Company that signed the Registration
Statement, and each person, if any, who (i) controls the Company within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act or (ii) is controlled by or is under common control with the Company (a “Company Affiliate”)
against any and all loss, liability, claim, damage and expense described in the indemnity contained in Section 9(a), as
incurred, but only with respect to 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 the Agent’s Information.


 



    	 	- 22 -	 



    



    




(c)      Procedure. Any party that
proposes to assert the right to be indemnified under this Section 9 will, promptly after receipt of notice of commencement
of any action against such party in respect of which a claim is to be made against an indemnifying party or parties under this
Section 9, notify each such indemnifying party of the commencement of such action, enclosing a copy of all papers served,
but the omission so to notify such indemnifying party will not relieve the indemnifying party from (i) any liability that it might
have to any indemnified party otherwise than under this Section 9 and (ii) any liability that it may have to any indemnified
party under the foregoing provision of this Section 9 unless, and only to the extent that, such omission results in the
forfeiture of substantive rights or defenses by the indemnifying party. If any such action is brought against any indemnified party
and it notifies the indemnifying party of its commencement, the indemnifying party will be entitled to participate in and, to the
extent that it elects by delivering written notice to the indemnified party promptly after receiving notice of the commencement
of the action from the indemnified party, jointly with any other indemnifying party similarly notified, to assume the defense of
the action, with counsel reasonably satisfactory to the indemnified party, and after notice from the indemnifying party to the
indemnified party of its election to assume the defense, the indemnifying party will not be liable to the indemnified party for
any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred
by the indemnified party in connection with the defense. The indemnified party will have the right to employ its own counsel in
any such action, but the fees, expenses and other charges of such counsel will be at the expense of such indemnified party unless
(1) the employment of counsel by the indemnified party has been authorized in writing by the indemnifying party, (2) the indemnified
party has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other indemnified
parties that are different from or in addition to those available to the indemnifying party, (3) a conflict or potential conflict
exists (based on advice of counsel to the indemnified party) between the indemnified party and the indemnifying party (in which
case the indemnifying party will not have the right to direct the defense of such action on behalf of the indemnified party) or
(4) the indemnifying party has not in fact employed counsel to assume the defense of such action within a reasonable time after
receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges
of counsel will be at the expense of the indemnifying party or parties. It is understood that the indemnifying party or parties
shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm admitted to practice in such jurisdiction at any one time for all
such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the indemnifying party
promptly after the indemnifying party receives a written invoice relating to such fees, disbursements and other charges in reasonable
detail. An indemnifying party will not, in any event, be liable for any settlement of any action or claim effected without its
written consent. No indemnifying party shall, without the prior written consent of each indemnified party, settle or compromise
or consent to the entry of any judgment in any pending or threatened claim, action or proceeding relating to the matters contemplated
by this Section 9 (whether or not any indemnified party is a party thereto), unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability arising or that may arise out of such claim, action
or proceeding.


 



    	 	- 23 -	 



    



    




(d)     Contribution. In order to
provide for just and equitable contribution in circumstances in which the indemnification provided for in the foregoing paragraphs
of this Section 9 is applicable in accordance with its terms but for any reason is held to be unavailable from the Company
or Cowen, the Company and Cowen 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 Cowen, 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 Cowen may be subject in such proportion
as shall be appropriate to reflect the relative benefits received by the Company on the one hand and Cowen on the other. The relative
benefits received by the Company on the one hand and Cowen 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 Cowen (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 Cowen, 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 Cowen, 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 Cowen agree that it would not be just and equitable if contributions
pursuant to this Section 9(d) were to be determined by pro rata allocation or by any other method of allocation that does
not take into account the equitable considerations referred to herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, liability, expense, or damage, or action in respect thereof, referred to above in this Section 9(d)
shall be deemed to include, for the purpose of this Section 9(d), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action or claim to the extent consistent with Section
9(c) hereof. Notwithstanding the foregoing provisions of this Section 9(d), Cowen shall not be required to contribute
any amount in excess of the commissions received by it under this Agreement and no person found guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) will be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. For purposes of this Section 9(d), any person who controls a party to this Agreement
within the meaning of the Securities Act, and any officers, directors, partners, employees or agents of Cowen, 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 9(d), will notify any such party or parties from whom contribution may be sought, but the omission to
so notify will not relieve that party or parties from whom contribution may be sought from any other obligation it or they may
have under this Section 9(d) except to the extent that the failure to so notify such other party materially prejudiced the
substantive rights or defenses of the party from whom contribution is sought. Except for a settlement entered into pursuant to
the last sentence of Section 9(c) hereof, no party will be liable for contribution with respect to any action or claim settled
without its written consent if such consent is required pursuant to Section 9(c) hereof.


 



    	 	- 24 -	 



    



    




10.       
Representations and Agreements to Survive Delivery. The indemnity and contribution agreements contained in Section
9 of this Agreement and all representations and warranties of the Company herein or in certificates delivered pursuant hereto
shall survive, as of their respective dates, regardless of (i) any investigation made by or on behalf of Cowen, 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.


 


11.      
Termination.


 


(a)      Cowen shall have the right by giving
notice as hereinafter specified at any time to terminate this Agreement if (i) any Material Adverse Change, or any development
that could reasonably be expected to result in a Material Adverse Change has occurred that, in the reasonable judgment of Cowen,
may materially impair the ability of Cowen 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), Cowen’s right to terminate shall not arise unless such failure to deliver (or cause
to be delivered) continues for more than thirty (30) days from the date such delivery was required; or (iii) any other condition
of Cowen’s obligations hereunder is not fulfilled, or (iv), any suspension or limitation of trading in the Placement Shares
or in securities generally on Nasdaq 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 and Contribution), Section
10 (Representations and Agreements to Survive Delivery), Section 16 (Applicable Law; Consent to Jurisdiction) and Section
17 (Waiver of Jury Trial) hereof shall remain in full force and effect notwithstanding such termination. If Cowen elects to
terminate this Agreement as provided in this Section 11(a), Cowen shall provide the required notice as specified in Section
12 (Notices).


 


(b)      The Company shall have the right,
by giving ten (10) days’ notice as hereinafter specified to terminate this Agreement in its sole discretion at
any time after the date of this Agreement. Any such termination shall be without liability of any party to any other
party except that the provisions of Section 7(g), Section 9, Section 10, Section 16 and Section 17 hereof shall remain in full
force and effect notwithstanding such termination.


 



    	 	- 25 -	 



    



    




(c)      Cowen shall have the right, by
giving ten (10) 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 9, Section 10, Section 16 and Section 17 hereof shall remain in full
force and effect notwithstanding such termination.


 


(d)      Unless earlier terminated pursuant
to this Section 11, this Agreement shall automatically terminate upon the issuance and sale of all of the Placement Shares
through Cowen on the terms and subject to the conditions set forth herein; provided that the provisions of Section 7(g),
Section 9, Section 10, Section 16 and Section 17 hereof shall remain in full force and effect notwithstanding
such termination.


 


(e)      This Agreement shall remain in
full force and effect unless terminated pursuant to Sections 11(a), (b), (c), or (d) above or otherwise by
mutual agreement of the parties; provided, however, that any such termination by mutual agreement shall in all cases be
deemed to provide that Section 7(g), Section 9, Section 10, Section 16 and Section 17 shall
remain in full force and effect. Upon termination of this Agreement, the Company shall not have any liability to Cowen for any
discount, commission or other compensation with respect to any Placement Shares not otherwise sold by Cowen under this Agreement,
except with respect to reimbursement of expenses pursuant to Section 7(g).


 


(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 Cowen 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.


 


(g)      Subject to the additional limitations set forth in this
Agreement, in the event of termination of this Agreement prior to the sale of any Placement Shares, Cowen shall be entitled only
to reimbursement of its out of pocket expenses actually incurred.


 


12.      
Notices. All notices or other communications required or permitted to be given by any party to any other party pursuant
to the terms of this Agreement shall be in writing, unless otherwise specified in this Agreement, and if sent to Cowen, shall be
delivered to Cowen at Cowen and Company, LLC, 599 Lexington Avenue, New York, NY 10022, fax no. 646-562-1124, Attention: General
Counsel with a copy to LeClairRyan, A Professional Corporation, attention: James T. Seery, e-mail james.seery@leclairryan.com;
or if sent to the Company, shall be delivered to Proteon Therapeutics, Inc., 200 West Street, Waltham, MA 02541, attention: George
A. Eldridge, e-mail: geldridge@proteontherapeutics.com with a copy to Morgan, Lewis & Bockius LLP, attention: Julio E. Vega,
e-mail: julio.vega@morganlewis.com. 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 (as defined below), 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, (iii) on the Business Day
actually received if deposited in the U.S. mail (certified or registered mail, return receipt requested, postage prepaid) and (iv)
if sent by e-mail, on the Business Day on which receipt is confirmed by the individual to whom the notice is sent, other than via
auto-reply. For purposes of this Agreement, “Business Day” shall mean any day on which the Nasdaq and
commercial banks in the City of New York are open for business.





 



    	 	- 26 -	 



    



    




An electronic communication (“Electronic
Notice”) shall be deemed written notice for purpose of this Section 12 if sent to the electronic mail address specified
by the receiving party under separate cover. Electronic Notice shall be deemed to be received at the time the party sending Electronic
Notice receives confirmation 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 non-electronic form (“Non-electronic Notice”) which shall
be sent to the requesting party within ten (10) days of receipt of the written request for Non-electronic Notice.


 


13.      
Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the Company and Cowen and
their respective successors and the affiliates, controlling persons, officers and directors referred to in Section 9 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 Cowen may assign its rights and obligations
hereunder to an affiliate of Cowen without obtaining the Company’s consent, so long as such affiliate is a registered broker-dealer.


 


14.      
Adjustments for Share Splits. The parties acknowledge and agree that all share-related numbers contained in this
Agreement shall be adjusted to take into account any share split, share dividend or similar event effected with respect to the
Common Stock.


 


15.       
Entire Agreement; Amendment; Severability. This Agreement (including all schedules and exhibits attached hereto and
Placement Notices issued pursuant hereto) 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 Cowen, provided, however,
that Schedule 2 attached hereto may be amended by either party upon written notice to the other party pursuant to Section 12.
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.


 



    	 	- 27 -	 



    



    




16.      
Applicable Law; Consent to Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the
internal laws of the State of New York without regard to the principles of conflicts of laws. Each party hereby irrevocably submits
to the non-exclusive jurisdiction of the state and federal courts sitting in the City of New York, borough of Manhattan, for the
adjudication of any dispute hereunder or in connection with any transaction contemplated hereby, and hereby irrevocably waives,
and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of
any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action
or proceeding is improper. Each party hereby irrevocably waives personal service of process and consents to process being served
in any such suit, action or proceeding by mailing a copy thereof (certified or registered mail, return receipt requested) to such
party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law.


 


17.      
Waiver of Jury Trial. The Company and Cowen each hereby irrevocably waives any right it may have to a trial by jury
in respect of any claim based upon or arising out of this Agreement or any transaction contemplated hereby.


 


18.      
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:


 


(a)      Cowen has been retained
solely to act as sales agent in connection with the sale of the Common Stock and that no fiduciary, advisory or agency
relationship between the Company and Cowen has been created in respect of any of the transactions contemplated by this
Agreement, irrespective of whether Cowen has advised or is advising the Company on other matters;


 


(b)      the Company is capable of evaluating
and understanding and understands and accepts the terms, risks and conditions of the transactions contemplated by this Agreement;


 


(c)      the Company has been advised that
Cowen and its affiliates are engaged in a broad range of transactions which may involve interests that differ from those of the
Company and that Cowen has no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary,
advisory or agency relationship; and


 


(d)      the Company waives, to the fullest
extent permitted by law, any claims it may have against Cowen, for breach of fiduciary duty or alleged breach of fiduciary duty
in connection with the sale of Placement Shares under this Agreement, and agrees that Cowen shall have no liability (whether direct
or indirect) to the Company in respect of such a fiduciary claim or to any person asserting a fiduciary duty claim on behalf of
or in right of the Company, including stockholders, partners, employees or creditors of the Company.


 


19.       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 or other electronic transmission.



    	 	- 28 -	 



    



    







 


20.       
Definitions. As used in this Agreement, the following term has the meaning set forth below:


 


(a)      “Applicable Time”
means the date of this Agreement, each Representation Date, the date on which a Placement Notice is given, and any date on which
Placement Shares are sold hereunder.


 


(b)     “Agent’s Information”
means, solely the following information in the Prospectus: the third sentence of the eighth paragraph under the caption “Plan
of Distribution” in the Prospectus.


 


[Remainder of Page Intentionally Blank]


 


 


 


 


 


 


 






    	 	- 29 -	 



    



    

 


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


 





	 	Very truly yours,	 
	 	 	 	 
	 	COWEN AND COMPANY, LLC
	 	 	 	 
	 	 	 	 
	 	By:  	  /s/ Jason Fenton	 
	 	Name:  Jason Fenton	 
	 	Title:    Managing Director	 
	 	 	 	 
	 	 	 	 
	 	 	 	 
	 	ACCEPTED as of the date	 
	 	first-above written:	 
	 	 	 	 
	 	PROTEON THERAPEUTICS, INC.
	 	 	 	 
	 	 	 	 
	 	By:  	  /s/ George A Eldridge	 
	 	Name:  George A. Eldridge	 
	 	Title:    Senior Vice President, Chief Financial
	 	Officer, Treasurer and Secretary







 


 


 









    	 	- 30 -	 



    



    




SCHEDULE 1


 


form of PLACEMENT
NOTICE


 


 


 





	From:	[                              	]
	Cc:	[                              	]
	To: 	[ 	]
	Subject: 	Cowen at the Market Offering—Placement Notice
	Date:	_______________, 20___







 





Gentlemen:


 


Pursuant to the terms and subject to the conditions
contained in the Sales Agreement between Proteon Therapeutics, Inc. (the “Company”), and Cowen and Company,
LLC (“Cowen”) dated November 12, 2015 (the “Agreement”), I hereby request on behalf
of the Company that Cowen sell up to [ ] shares of the Company’s common stock, par value $0.001 per share, at a minimum market
price of $_______ per share. Sales should begin on the date of this Notice and shall continue until [DATE] [all shares are sold].


 


 






     

    



    

 


SCHEDULE 2


 


 


 


Notice Parties


 


 





	The Company	 	 
	 	 	 
	Timothy P. Noyes	 	President and Chief Executive Officer
	 	 	 
	George A. Eldridge	 	Chief Financial Officer, Secretary and Treasurer
	 	 	 
	Cowen	 	 
	 	 	 
	Robert Sine 	 	Director
	 	 	 
	William Follis 	 	Director







 





 


 



     

    



    




SCHEDULE 3


 


 


 


Compensation


 


Cowen shall be paid compensation equal to 3.0% of the gross proceeds
from the sales of Common Stock pursuant to the terms of this Agreement.


 


 


 


 


 


 


 


 


 


 


 


 


 






     

    



    

 


SCHEDULE 4


 


Schedule Of Subsidiaries


 


Proteon Therapeutics Limited, a wholly-owned subsidiary of the Company, organized in
the United Kingdom


 


Proteon Securities Corp, a Massachusetts Securities Corporation


 


 


 


 


 


 


 


 


 


 


 






     

    



    


Exhibit 7(m) 


 


 


 


OFFICER CERTIFICATE


 


 


The undersigned, the duly qualified and elected _______________________,
of Proteon Therapeutics, Inc. (“Company”), a Delaware corporation, does hereby certify in such
capacity and on behalf of the Company, pursuant to Section 7(m) of the Sales Agreement dated November 12, 2015 (the
“Sales Agreement”) between the Company and Cowen and Company, LLC, that to the best of the knowledge
of the undersigned:


 


(i)     The representations and warranties of
the Company in Section 6 of the Sales Agreement (A) to the extent such representations and warranties are subject to qualifications
and exceptions contained therein relating to materiality or Material Adverse Change, are true and correct on and as of the date
hereof with the same force and effect as if expressly made on and as of the date hereof, except for those representations and warranties
that speak solely as of a specific date and which were true and correct as of such date, and (B) to the extent such representations
and warranties are not subject to any qualifications or exceptions, are true and correct in all material respects as of the date
hereof as if made on and as of the date hereof with the same force and effect as if expressly made on and as of the date hereof
except for those representations and warranties that speak solely as of a specific date and which were true and correct as of such
date; and


 


(ii)     The Company has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied pursuant to the Sales Agreement at or prior to the date hereof.


 


 





 


 


 








	 	 	 	By:	 	 
	 	 	 	 	Name:	 
	 	 	 	 	Title:	 
	 	 	 	 	 	 
	 	 	 	 	 	 
	Date: