Exhibit 10.1


 





AMPIO PHARMACEUTICALS, INC.


 


$50,000,000


 


Common Stock


($0.0001 value per share)


 


Sales Agreement


February 20, 2020


 


ThinkEquity,


a division of Fordham Financial Management, Inc.


17 State Street, 22nd Floor


New York, NY 10004


 


Roth Capital Partners, LLC


888 San Clemente Drive, Suite 400


Newport Beach, CA 92660


 


Ladies and Gentlemen:


 


Ampio Pharmaceuticals,
Inc., a Delaware corporation (the “Company”), confirms its agreement (this “Agreement”) with
ThinkEquity, a division of Fordham Financial Management, Inc. (“ThinkEquity”) and Roth Capital Partners, LLC
(“Roth”); each of ThinkEquity and Roth, individually an “Agent” and collectively, the “Agents”),
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 or to the Agents, shares (the “Placement Shares”)
of common stock of the Company, $0.0001 par value per share (the “Common Stock”) having an aggregate offering
price of up to $50,000,000, provided, however, that in no event shall the Company issue or sell through Agents such number
of Placement Shares that (a) exceeds the number or dollar amount of shares of Common Stock that may be sold pursuant to the Registration
Statement (as defined below), or (b) exceeds the number of authorized but unissued shares of Common Stock of the Company (the
 “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that
compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this
Agreement shall be the sole responsibility of the Company and that Agents shall have no obligation in connection with such compliance.
The issuance and sale of Placement Shares through or to Agents will be effected pursuant to the Registration Statement (as defined
below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”),
although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue any
Placement Shares.


 






     


     


    

 


The Company has filed,
in accordance with the provisions of the Securities Act of 1933, as amended, and the rules and regulations thereunder (the “Securities
Act”), with the Commission a registration statement on Form S-3 (File No. 333-217094), including a base prospectus,
relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates
by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act
of 1934, as amended, and the rules and regulations thereunder (the “Exchange Act”). The Company has prepared
a prospectus supplement 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 the Agents, for use by the Agents, copies
of the prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement, relating to the
Placement Shares. Except where the context otherwise requires, such registration statement, and any post-effective amendment thereto,
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 of the Securities Act, or any subsequent registration
statement on Form S-3 filed pursuant to Rule 415(a)(6) under the Securities Act by the Company to cover any Placement Shares, is
herein called the “Registration Statement.” The base prospectus, including all documents incorporated therein
by reference, included in the Registration Statement, as it may be supplemented by the Prospectus 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 then issued Issuer Free Writing Prospectus (defined below), 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 or deemed to be incorporated by reference therein, and any reference herein to the terms
 “amend,” “amendment” or “supplement” with respect to the Registration Statement or the Prospectus
shall be deemed to refer to and include the filing after the execution hereof of any document with the Commission deemed to be
incorporated by reference therein (the “Incorporated Documents”). For purposes of this Agreement, all references
to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include any copy filed
with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System, or if applicable, the Interactive
Data Electronic Application system when used by the Commission (collectively, “EDGAR”).


 


2.            Placements. Each time that the Company wishes to issue and sell Placement Shares hereunder (each, a “Placement”),
it will notify the Agents by email notice (or other method mutually agreed to in writing by the Parties) of the number or dollar
value of Placement Shares, 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 day and any minimum price below which sales may not be made (a “Placement Notice”),
the form of which is attached hereto as Schedule 1. The Placement Notice shall originate from any of the individuals from the Company
set forth on Schedule 3 (with a copy to each of the other individuals from the Company listed on such schedule), and shall be addressed
to each of the individuals from the Agents set forth on Schedule 3, as such Schedule 3 may be amended from time to time. The Placement
Notice shall be effective unless and until (i) each Agent declines to accept the terms contained therein for any reason, in
its sole discretion by promptly notifying the Company and the other Agent of its decision to decline acceptance, (ii) the
entire amount of the Placement Shares thereunder have been sold, (iii) the Company suspends or terminates the Placement Notice
or (iv) the Agreement has been terminated under the provisions of Section 12. The amount of any discount, commission
or other compensation to be paid by the Company to the Agents in connection with the sale of the Placement Shares shall
be calculated in accordance with the terms set forth in Schedule 2. It is expressly acknowledged and agreed that neither the Company
nor either Agent will have any obligation whatsoever with respect to a Placement or any Placement Shares unless and until the Company
delivers a Placement Notice to the Agents and both Agents do 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. The Agent that shall execute sales of Placement
Shares hereunder from time to time (the “Designated Agent”) shall be identified in accordance with the Designated
Agent Agreement, dated the date hereof, among the Company and each Agent (the “Designated Agent Agreement”).
The amount of any discount, commission or other compensation to be paid by the Company to the Agent which is not the Designated
Agent in connection with the sale of the Placement Shares shall be calculated in accordance with the Designated Agent Agreement.


 






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3.            Sale
of Placement Shares by Agents. Subject to the provisions of Section 5(a), the Designated Agent, 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 NYSE American LLC (the “Exchange”),
to sell the Placement Shares up to the amount specified, and otherwise in accordance with the terms of such Placement Notice.
The Designated Agent will provide written confirmation to the Company and the other Agent no later than the opening of the Trading
Day (as defined below) immediately following the Trading Day on which it has made sales of Placement Shares hereunder setting
forth the number of Placement Shares sold on such day, the compensation payable by the Company to the Agents pursuant to Section 2
with respect to such sales, and the Net Proceeds (as defined below) payable to the Company, with an itemization of the deductions
made by the Designated Agent (as set forth in Section 5(b)) from the gross proceeds that it receives from such sales.
Subject to the terms of the Placement Notice, the Designated Agent 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.


 


4.            Suspension
of Sales.


 


(a)         The
Company or the Designated Agent may, upon notice to the other party in writing (including by email correspondence to each of
the individuals of the other party set forth on Schedule 3, if receipt of such correspondence is actually acknowledged by any
of the individuals to whom the notice is sent, other than via auto-reply) or by telephone (confirmed immediately by
verifiable facsimile transmission or email correspondence to each of the individuals of the other party set forth on Schedule
3), suspend any sale of Placement Shares; provided, however, that such suspension shall not affect or impair any
party’s obligations with respect to any Placement Shares sold hereunder prior to the receipt of such notice. Each party
agrees that no such notice under this Section 4 shall be effective against any other party unless it is made to one of
the individuals named on Schedule 3 hereto, as such Schedule may be amended from time to time.


 






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


 


5.            Sale
and Delivery to the Designated Agent; Settlement.


 


(a)         Sale of Placement Shares. On the basis of the representations and warranties herein contained and subject
to the terms and conditions herein set forth, upon the Designated Agent’s acceptance of the terms of a Placement Notice,
and unless the sale of the Placement Shares described therein has been declined, suspended, or otherwise terminated in accordance
with the terms of this Agreement, the Designated Agent, for the period specified in the Placement Notice, will use its commercially
reasonable efforts consistent with its normal trading and sales practices to sell such Placement Shares up to the amount specified
in such Placement Notice, and otherwise in accordance with the terms of such Placement Notice. The Company acknowledges and agrees
that (i) there can be no assurance that the Designated Agent will be successful in selling Placement Shares, (ii) the
Designated Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Placement
Shares for any reason other than a failure by the Designated Agent to use its commercially reasonable efforts consistent with its
normal trading and sales practices and applicable law and regulations to sell such Placement Shares as required under this Agreement
and (iii) the Designated Agent shall be under no obligation to purchase Placement Shares on a principal basis pursuant to
this Agreement, except as otherwise agreed by the Designated Agent and the Company.


 


(b)         Settlement
of Placement Shares. Unless otherwise specified in the applicable Placement Notice, settlement for sales of Placement
Shares will occur on the second (2nd) Trading Day (or such earlier day as is industry practice for regular-way
trading) following the date on which such sales are made (each, a “Settlement Date”). The amount of proceeds
to be delivered to the Company on a Settlement Date against receipt of the Placement Shares sold (the “Net Proceeds”)
will be equal to the aggregate sales price received by the Designated Agent, after deduction for (i) the Agents’ commission,
discount or other compensation for such sales payable by the Company pursuant to Section 2 hereof, and (ii) any transaction
fees imposed by any governmental or self-regulatory organization in respect of such sales or execution charges of a clearing firm
or floor charges or delivery expenses incurred with the Deposit and Withdrawal Custodian System of The Depository Trust Company
as described below.


 






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(c)         Delivery of Placement Shares. Upon the acceptance of a Placement Notice by the Designated Agent, the Company
may issue and deliver for deposit in the Company’s brokerage account with the Designated Agent, a number of Placement Shares
equal or greater to the maximum number of Placement Shares referenced in the Placement Notice. On each Settlement Date, against
payment of the Net Proceeds, the Company will, or will cause its transfer agent to, electronically transfer the Placement Shares
being sold not already delivered for deposit in the Company’s brokerage account by crediting the Designated Agent’s
or its designee’s account (provided the Designated Agent shall have given the Company written notice of such designee prior
to the Settlement Date) at The Depository Trust Company through its Deposit and Withdrawal at Custodian System or by such other
means of delivery as may be mutually agreed upon by the parties hereto which in all cases shall be freely tradable, transferable,
registered shares in good deliverable form. On each Settlement Date, the Designated Agent will deliver the related Net Proceeds
in same day funds to an account designated by the Company on, or prior to, the Settlement Date. The Company agrees that if the
Company, or its transfer agent (if applicable), defaults in its obligation to deliver Placement Shares on a Settlement Date, the
Company agrees that in addition to and in no way limiting the rights and obligations set forth in Section 10(a) hereto, it
will (i) hold the Designated Agent harmless against any loss, claim, damage, or expense (including reasonable legal fees and
expenses), as incurred, arising out of or in connection with such default by the Company or its transfer agent (if applicable)
and (ii) pay to the Designated Agent any commission, discount, or other compensation to which it would otherwise have been
entitled absent such default.


 


(d)         Limitations on Offering Size. Under no circumstances shall the Company cause or request the offer or
sale of any Placement Shares if, after giving effect to the sale of such Placement Shares, the aggregate gross sales proceeds of
Placement Shares sold pursuant to this Agreement would exceed the lesser of (A) together with all sales of Placement Shares
under this Agreement, the Maximum Amount, (B) the amount available for offer and sale under the Registration Statement and
(C) the amount authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors,
a duly authorized committee thereof or a duly authorized executive committee, and notified to the Agents in writing. Under no circumstances
shall the Company cause or request the offer or sale of any Placement Shares pursuant to this Agreement at a price lower than the
minimum price authorized from time to time by the Company’s board of directors, duly authorized committee thereof or a duly
authorized executive committee, and notified to the Agents in writing. Further, under no circumstances shall the Company cause
or permit the aggregate offering amount of Placement Shares sold pursuant to this Agreement to exceed the Maximum Amount.


 


(e)         Sales Through Agents. The Company agrees that any offer to sell, any solicitation of an offer to buy, or any
sales of Placement Shares or any other equity security of the Company shall only be effected by or through an Agent, and only a
single Agent, on any single given date, and in no event shall the Company request that more than one Agent sell Shares on the same
day; provided however that (i) the foregoing limitation shall not apply to (A) exercise of any option, warrant, right or any conversion
privilege set forth in the instruction governing such securities, (B) sales solely to employees, directors or security holders
of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such person and
(ii) such limitation shall not apply (A) on any day during which no sales are made pursuant to this Agreement or (B) during a period
in which the Company has notified the Agents that it will not sell Common Stock under this Agreement and (1) no Placement Notice
is pending or (2) after a Placement Notice has been withdrawn.


 






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6.            Representations
and Warranties of the Company. Except as disclosed in the Registration Statement or Prospectus (including the Incorporated
Documents), the Company represents and warrants to, and agrees with each Agent that as of the date of this Agreement and as of
each Applicable Time (as defined below), unless such representation, warranty or agreement specifies a different date or time:


 


(a)         Registration
Statement and Prospectus. The Company and the transactions contemplated by this Agreement meet the requirements for and comply
with the conditions for the use of Form S-3 under the Securities Act. The Registration Statement has been filed with the Commission
and declared effective under the Securities Act. The Prospectus Supplement will name ThinkEquity and Roth as the agents in the
section entitled “Plan of Distribution.” The Company has not received, and has no notice of, any order of the Commission
preventing or suspending the use of the Registration Statement, or threatening or instituting proceedings for that purpose. The
Registration Statement and the offer and sale of Placement Shares as contemplated hereby meet the requirements of Rule 415
under the Securities Act and comply in all material respects with said Rule. Any statutes, regulations, contracts or other documents
that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration
Statement have been so described or filed. Copies of the Registration Statement, the Prospectus, and any such amendments or supplements
and all documents incorporated by reference therein that were filed with the Commission on or prior to the date of this Agreement
have been delivered, or are available through EDGAR, to each Agent and its respective counsel. The Company has not distributed
and, prior to the later to occur of each Settlement Date and completion of the distribution of the Placement Shares, will not
distribute any offering material in connection with the offering or sale of the Placement Shares other than the Registration Statement
and the Prospectus and any Issuer Free Writing Prospectus to which the Agents have consented. The Company has not, in the 12 months
preceding the date hereof, received notice from the Exchange to the effect that the Company is not in compliance with the listing
or maintenance requirements. The Company has no reason to believe that it will not in the foreseeable future continue to be in
compliance with all such listing and maintenance requirements.


 


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


 






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


 


(d)         Financial
Information. The financial statements of the Company included or incorporated by reference in the Registration Statement,
the Prospectus and the Issuer Free Writing Prospectuses, if any, together with the related notes and schedules, present fairly,
in all material respects, the financial position of the Company as of the dates indicated and the results of operations, cash
flows and changes in stockholders’ equity of the Company for the periods specified and have been prepared in compliance
with the requirements of the Securities Act and Exchange Act and in conformity with generally accepted accounting principles in
the United States (“GAAP”) applied on a consistent basis (except for (i) such adjustments to accounting
standards and practices as are noted therein, (ii) in the case of unaudited interim financial statements, to the extent such
financial statements may not include footnotes required by GAAP or may be condensed or summary statements and (iii) such
adjustments which will not be material, either individually or in the aggregate) during the periods involved; the other financial
and statistical data with respect to the Company contained or incorporated by reference in the Registration Statement, the Prospectus
and the Issuer Free Writing Prospectuses, if any, are accurately and fairly presented and prepared on a basis consistent with
the financial statements and books and records of the Company; there are no financial statements (historical or pro forma) that
are required to be included or incorporated by reference in the Registration Statement, or the Prospectus that are not included
or incorporated by reference as required; the Company does not have any material liabilities or obligations, direct or contingent
(including any off-balance sheet obligations), not described in the Registration Statement(excluding the exhibits thereto), and
the Prospectus; and all disclosures contained or incorporated by reference in the Registration Statement, the Prospectus and the
Issuer Free Writing Prospectuses, if any, regarding “non-GAAP financial measures” (as such term is defined by the
rules and regulations of the Commission) comply in all material respects with Regulation G of the Exchange Act and Item 10
of Regulation S-K under the Securities Act, to the extent applicable.


 






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


 


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


 


(g)         Subsidiaries. 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 The Company owns directly or indirectly, all of the equity interests of its subsidiaries free and clear
of any lien, charge, security interest, encumbrance, right of first refusal or other restriction, and all the equity interests
of its subsidiaries are validly issued and are fully paid, non-assessable and free of preemptive and similar rights.


 


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


 


(i)          No Material
Adverse Effect. Subsequent to the respective dates as of which information is given in the Registration Statement, the
Prospectus and the Issuer Free Writing Prospectuses, if any, (including any document deemed incorporated by reference
therein), there has not been (i) any Material Adverse Effect, (ii) any transaction which is material to the
Company, (iii) any obligation or liability, direct or contingent (including any off-balance sheet obligations), incurred
by the Company which is material to the Company, (iv) any material change in the capital stock or outstanding long-term
indebtedness (other than (A) the grant of additional awards under equity incentive plans, (B) changes in the number
of outstanding Common Stock due to the issuance of shares upon exercise or conversion of securities exercisable for or
convertible into Common Stock outstanding on the date hereof, (C) any repurchase of capital stock of the Company,
(D) as a result of the sale of Placement Shares, or (E) other than as publicly reported or announced, or
(v) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company other than in
each case above in the ordinary course of business or as otherwise disclosed in the Registration Statement or Prospectus
(including any document deemed incorporated by reference therein).


 






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(j)          Capitalization.
The issued and outstanding shares of capital stock of the Company have been validly issued, are fully paid and non-assessable
and, other than as disclosed in the Registration Statement or the Prospectus, are not subject to any preemptive rights, rights
of first refusal or similar rights. The Company has an authorized, issued and outstanding capitalization as set forth in the Registration
Statement and the Prospectus as of the dates referred to therein (other than the grant of additional options and restricted stock
units under the Company’s existing stock option plans, or changes in the number of outstanding shares of Common Stock of
the Company due to the issuance of shares upon the exercise or conversion of securities exercisable for, or convertible into,
Common Stock outstanding on the date hereof or due to issuances of shares of Common Stock as otherwise publicly reported or announced, and such authorized capital stock conforms to the description thereof set forth in the Registration
Statement and the Prospectus. The description of the securities of the Company in the Registration Statement and the Prospectus
is complete and accurate in all material respects. As of the date referred to therein, the Company does not have outstanding any
options to purchase, or any rights or warrants to subscribe for, or any securities or obligations convertible into, or exchangeable
for, or any contracts or commitments to issue or sell, any shares of capital stock or other securities except for outstanding
options under the Company’s existing stock option plans, warrants to subscribe for shares of Common Stock as disclosed in
the Company’s most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q.


 


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


 


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


 






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


 


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


 


(o)         Independent Public Accountant. The Company’s accountants (the “Accountants”), whose
report or reports on the financial statements of the Company is filed with the Commission as part of the Company’s most recent
Annual Report on Form 10-K filed with the Commission and incorporated into the Registration Statement and the Prospectus, each
are and, during the periods covered by their report, were an independent registered public accounting firm with respect to the
Company within the meaning of the Securities Act and the Public Company Accounting Oversight Board (United States). To the Company’s
knowledge, the Accountants are not in violation of the auditor independence requirements of the Sarbanes-Oxley Act of 2002 (the
 “Sarbanes-Oxley Act”) with respect to the Company.


 


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


 






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


 


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


 


(s)         No
Material Defaults. The Company has not defaulted on any installment on indebtedness for borrowed money or on any rental on
one or more long-term leases, which defaults, individually or in the aggregate, have a Material Adverse Effect. The Company has
not filed a report pursuant to Section 13(a) or 15(d) of the Exchange Act since the filing of its last Annual Report on Form 10-K,
indicating that it (i) has failed to pay any dividend or sinking fund installment on preferred stock or (ii) has defaulted on
any installment on indebtedness for borrowed money or on any rental on one or more long-term leases, which defaults, individually
or in the aggregate, could reasonably be expected to have a Material Adverse Effect


 


(t)          S-3
Eligibility. (i) At the time of filing the Registration Statement and (ii) at the time of the most recent amendment
thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective
amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), the Company
met the then applicable requirements for use of Form S-3 under the Securities Act, including compliance with General Instruction
I.B.1 of Form S-3.


 






    	 	11	 



     


    

 


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


 


(v)         Broker/Dealer
Relationships. Neither the Company nor any related entities (i) is required to register as a “broker” or
 “dealer” in accordance with the provisions of the Exchange Act or (ii) directly or indirectly through one or
more intermediaries, controls or is a “person associated with a member” or “associated person of a member”
(within the meaning set forth in the FINRA Manual).


 


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


 


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


 


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


 


(z)          Intellectual Property. The Company owns or possesses adequate enforceable rights to use all patents, patent
applications, trademarks (both registered and unregistered), service marks, trade names, trademark registrations, service mark
registrations, copyrights, licenses and know-how (including trade secrets and other unpatented and/or unpatentable proprietary
or confidential information, systems or procedures) (collectively, the “Intellectual Property”), necessary for
the conduct of its business as conducted as of the date hereof, except to the extent that the failure to own or possess adequate
rights to use such Intellectual Property would not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect; the Company has not received any written notice of any claim of infringement or conflict which asserted Intellectual
Property rights of others, which infringement or conflict, if the subject of an unfavorable decision, would result in a Material
Adverse Effect; there are no pending, or to the Company’s knowledge, threatened judicial proceedings or interference proceedings
against the Company challenging the Company’s rights in or to or the validity of the scope of any of the Company’s
patents, patent applications or proprietary information.


 






    	 	12	 



     


    

 


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


 


(bb)       Disclosure
Controls. The Company maintains systems of internal controls designed to provide reasonable assurance that (i) transactions
are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as
necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability; (iii) access
to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect
to any differences. The Company is not aware of any material weaknesses in its internal control over financial reporting (other
than as set forth in the Prospectus). Since the date of the latest audited financial statements of the Company included in the
Prospectus, there has been no change in the Company’s internal control over financial reporting that has materially affected,
or is reasonably likely to materially affect, the Company’s internal control over financial reporting (other than as set
forth in the Prospectus). The Company has established disclosure controls and procedures (as defined in Exchange Act Rules 13a-15
and 15d-15) for the Company and designed such disclosure controls and procedures to ensure that material information relating
to the Company is made known to the certifying officers by others within those entities, particularly during the period in which
the Company’s Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may be, is being prepared. The Company’s
certifying officers have evaluated the effectiveness of the Company’s controls and procedures as of a date within 90 days
prior to the filing date of the Form 10-K for the fiscal year most recently ended (such date, the “Evaluation Date”).
The Company presented in its Form 10-K for the fiscal year most recently ended the conclusions of the certifying officers about
the effectiveness of the disclosure controls and procedures based on their evaluations as of the Evaluation Date. Since the Evaluation
Date, with the exception of the material weakness identified in the Company’s 10-Q for the quarter ended September 30, 2019
and the revised controls and procedures implemented to remediate that material weakness, there have been no significant changes
in the Company’s internal controls (as such term is defined in Item 307(b) of Regulation S-K under the Securities Act)
or, to the Company’s knowledge, in other factors that could significantly affect the Company’s internal controls.
To the knowledge of the Company, the Company’s “internal controls over financial reporting” and “disclosure
controls and procedures” are effective.


 






    	 	13	 



     


    

 


(cc)       Sarbanes-Oxley. The Company is not aware of any failure on the part of the Company or any of the Company’s
directors or officers, in their capacities as such, to comply with any applicable provisions of the Sarbanes-Oxley Act and the
applicable rules and regulations promulgated thereunder in all material respects. Each of the principal executive officer and the
principal financial officer of the Company (or each former principal executive officer of the Company and each former principal
financial officer of the Company as applicable) has made all certifications required by Sections 302 and 906 of the Sarbanes-Oxley
Act with respect to all reports, schedules, forms, statements and other documents required to be filed by it or furnished by it
to the Commission during the past 12 months. For purposes of the preceding sentence, “principal executive officer”
and “principal financial officer” shall have the meanings given to such terms in the Sarbanes-Oxley Act.


 


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


 


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


 


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


 


(gg)       Operations.
The operations of the Company are and have been conducted at all times in compliance with applicable financial record keeping
and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes
of all jurisdictions to which the Company is subject, the rules and regulations thereunder and any related or similar rules, regulations
or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”),
except as would not have a Material Adverse Effect; and no action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company with respect to the Money Laundering Laws is pending or, to the knowledge
of the Company, threatened.


 






    	 	14	 



     


    

 


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


 


(ii)         Underwriter Agreements. Other than with respect to this Agreement, the Company is not a party to any agreement
with an agent or underwriter for any other “at the market” or continuous equity transaction.


 


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


 


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


 






    	 	15	 



     


    

 


(ll)         Agent
Purchases. The Company acknowledges and agrees that Agents have informed the Company that each Agent may, to the extent permitted
under the Securities Act and the Exchange Act, purchase and sell Common Stock for its own account while this Agreement is in effect,
provided, that (i) no such purchase or sales shall take place while a Placement Notice is in effect (except to the extent
each Agent may engage in sales of Placement Shares purchased or deemed purchased from the Company as a “riskless principal”
or in a similar capacity) and (ii) the Company shall not be deemed to have authorized or consented to any such purchases
or sales by such Agent.


 


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


 


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


 


(oo)       No Improper
Practices. (i) Neither the Company, nor to the Company’s knowledge, any of its executive officers has, in the past
five years, made any unlawful contributions to any candidate for any political office (or failed fully to disclose any contribution
in violation of law) or made any contribution or other payment to any official of, or candidate for, any federal, state, municipal,
or foreign office or other person charged with similar public or quasi-public duty in violation of any law or of the character
required to be disclosed in the Prospectus; (ii) no relationship, direct or indirect, exists between or among the Company
or, to the Company’s knowledge, any affiliate of the Company, on the one hand, and the directors, officers and stockholders
of the Company, that is required by the Securities Act to be described in the Registration Statement and the Prospectus that is
not so described; (iii) no relationship, direct or indirect, exists between or among the Company, or any affiliate of the
Company, on the one hand, and the directors, officers, stockholders or directors of the Company that is required by the rules
of FINRA to be described in the Registration Statement and the Prospectus that is not so described; (iv) there are no material
outstanding loans or advances or material guarantees of indebtedness by the Company to or for the benefit of any of its officers
or directors or any of the members of the families of any of them; (v) the Company has not offered, or caused any placement agent
to offer, Common Stock to any person with the intent to influence unlawfully (A) a customer or supplier of the Company to
alter the customer’s or supplier’s level or type of business with the Company or (B) a trade journalist or publication
to write or publish favorable information about the Company or any of its products or services, and, (vi) neither the Company
nor, to the Company’s knowledge, any employee or agent of the Company has made any payment of funds of the Company or received
or retained any funds in violation of any law, rule or regulation (including, without limitation, the Foreign Corrupt Practices
Act of 1977, which payment, receipt or retention of funds is of a character required to be disclosed in the Registration Statement
or the Prospectus).


 






    	 	16	 



     


    

 


(pp)      Compliance
with Applicable Laws. The Company (A) to its knowledge, is and at all times has been in material compliance with all
statutes, rules and regulations applicable to the ownership, testing, development, manufacture, packaging, processing, use, distribution,
marketing, labeling, promotion, sale, offer for sale, storage, import, export or disposal of any product under development, manufactured
or distributed by the Company (“Applicable Laws”), (B) has not received any Form 483 from the FDA, notice
of adverse finding, warning letter, or other written correspondence or notice from the FDA or any other federal, state, local
or foreign governmental or regulatory authority alleging or asserting material noncompliance with any Applicable Laws or any licenses,
certificates, approvals, clearances, authorizations, permits and supplements or amendments thereto required by any such Applicable
Laws (“Authorizations”), which would, individually or in the aggregate, result in a Material Adverse Effect;
(C) possesses all material Authorizations and such Authorizations are valid and in full force and effect and the Company
is not in material violation of any term of any such Authorizations; (D) has not received written notice of any claim, action,
suit, proceeding, hearing, enforcement, investigation, arbitration or other action from the FDA or any other federal, state, local
or foreign governmental or regulatory authority or third party alleging that any Company product, operation or activity is in
material violation of any Applicable Laws or Authorizations and has no knowledge that the FDA or any other federal, state, local
or foreign governmental or regulatory authority or third party is considering any such claim, litigation, arbitration, action,
suit, investigation or proceeding against the Company; (E) has not received notice that the FDA or any other federal, state,
local or foreign governmental or regulatory authority has taken, is taking or intends to take action to limit, suspend, modify
or revoke any material Authorizations and has no knowledge that the FDA or any other federal, state, local or foreign governmental
or regulatory authority is considering such action; and (F) to its knowledge, has filed, obtained, maintained or submitted
all reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments as required by
any Applicable Laws or Authorizations except where the failure to file such reports, documents, forms, notices, applications,
records, claims, submissions and supplements or amendments would not result in a Material Adverse Effect, and that all such reports,
documents, forms, notices, applications, records, claims, submissions and supplements or amendments were materially complete and
correct on the date filed (or were corrected or supplemented by a subsequent submission).


 


(qq)       Clinical
Studies. All clinical trials conducted by the Company or on behalf of the Company were, and, if still pending are, to the
Company’s knowledge, being conducted in all material respects in compliance with all Applicable Laws and in accordance with
experimental protocols, procedures and controls generally used by qualified experts in the clinical trials of new drugs and biologics
as applied to comparable products to those being developed by the Company; the descriptions of the results of such clinical trials
contained in the Registration Statement and the Prospectus are accurate in all material respects, and the Company has no knowledge
of any other clinical trials, the results of which reasonably call into question the clinical trial results described or referred
to in the Registration Statement and the Prospectus when viewed in the context in which such results are described; and the Company
has not received any written notices or correspondence from the FDA or any other domestic or foreign governmental agency requiring
the termination or suspension of any clinical trials conducted by or on behalf of the Company that are described in the Registration
Statement and the Prospectus or the results of which are referred to in the Registration Statement and the Prospectus.


 






    	 	17	 



     


    

 


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


 


(ss)       No Misstatement
or Omission in an Issuer Free Writing Prospectus. Each Issuer Free Writing Prospectus, as of its issue date and as of each
Applicable Time (as defined in Section 24 below), did not, does not and will not include any information that conflicted,
conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any incorporated
document deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements
in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the
Company by the Agents specifically for use therein.


 


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


 


(uu)       OFAC.
Neither the Company or any director, officer, agent, employee, affiliate or representative of the Company is a government, individual
or entity (in this paragraph (uu), “Person”) that is, or is owned or controlled by a Person that is, currently
subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”),
the United Nations Security Council (“UNSC”), the European Union (“EU”), Her Majesty’s
Treasury (“HMT”), or other relevant sanctions authority (collectively, “Sanctions”), nor
located, organized or resident in a country or territory that is the subject of Sanctions; provided however, that for the purposes
of this paragraph (uu), no person shall be an affiliate of the Company solely by reason of owning less than a majority of any
class of voting securities of the Company. The Company will not directly or indirectly use the proceeds of the offering of the
Securities 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. The Company represents and covenants that, except as detailed in the Prospectus, for the past 5 years, the Company has
not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person,
or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.


 






    	 	18	 



     


    

 


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


 


(ww)     [Intentionally omitted.]


 


(xx)        IT Systems. (i)(x) To the knowledge of Company, there has been no security breach or other compromise of any
Company’s information technology and computer systems, networks, hardware, software, data (including the data of their respective
customers, employees, suppliers, vendors and any third party data maintained by or on behalf of them), equipment or technology
(collectively, “IT Systems and Data”) and (y) the Company has not been notified of, and have no knowledge of
any event or condition that would reasonably be expected to result in, any security breach or other compromise to their IT Systems
and Data; (ii) the Company is presently in material compliance with all applicable laws or statutes and all judgments, orders,
rules and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations
relating to the privacy and security of IT Systems and Data and to the protection of such IT Systems and Data from unauthorized
use, access, misappropriation or modification, except as would not, in the case of this clause (ii), individually or in the aggregate,
have a Material Adverse Effect; and (iii) the Company has implemented backup and disaster recovery technology consistent with industry
standards and practices.


 


Any certificate signed by an officer of
the Company and delivered to each Agent or its respective counsel pursuant to or in connection with this Agreement shall be deemed
to be a representation and warranty by the Company, as applicable, to the Agents as to the matters set forth therein.


 






    	 	19	 



     


    

 


7.            Covenants
of the Company. The Company covenants and agrees with Agents that:


 


(a)         Registration Statement Amendments. After the date of this Agreement and during any period in which a Prospectus
relating to any Placement Shares is required to be delivered by the Agents under the Securities Act (including in circumstances
where such requirement may be satisfied pursuant to Rule 172 under the Securities Act) (the “Prospectus Delivery Period”)
(i) the Company will on or prior to April 20, 2020 file a new registration statement on Form S-3 pursuant to Rule 415(a)(6) (the
 “Replacement S-3”) and notify the Agents promptly of the time when the Replacement S-3 or any subsequent amendment
to the Registration Statement, other than documents incorporated by reference, has been filed with the Commission and/or has become
effective or any subsequent supplement to the Prospectus has been filed and of any request by the Commission for any amendment
or supplement to the Registration Statement or Prospectus or for additional information, (ii) the Company will prepare and file
with the Commission, promptly upon the Agents’ request, any amendments or supplements to the Registration Statement or Prospectus
that, in such Agents’ reasonable opinion, may be necessary or advisable in connection with the distribution of the Placement
Shares by the Agents (provided, however, that the failure of the Agents to make such request shall not relieve the Company of any
obligation or liability hereunder, or affect the Agents’ right to rely on the representations and warranties made by the
Company in this Agreement and provided, further, that the only remedy the Agents shall have with respect to the failure to make
such filing shall be to cease making sales under this Agreement until such amendment or supplement is filed); (iii) the Company
will not file any amendment or supplement to the Registration Statement or Prospectus relating to the Placement Shares or a security
convertible into the Placement Shares unless a copy thereof has been submitted to the Agents within a reasonable period of time
before the filing and the Agents have not objected thereto (provided, however, that (A) the failure of the Agents to make such
objection shall not relieve the Company of any obligation or liability hereunder, or affect the Agents’ right to rely on
the representations and warranties made by the Company in this Agreement and (B) the Company has no obligation to provide
the Agents any advance copy of such filing or to provide the Agents an opportunity to object to such filing if the filing does
not name the Agents or does not relate to the transaction herein provided; and provided, further, that the only remedy the Agents
shall have with respect to the failure to by the Company to obtain such consent shall be to cease making sales under this Agreement)
and the Company will furnish to the Agents at the time of filing thereof a copy of any document that upon filing is deemed to be
incorporated by reference into the Registration Statement or Prospectus, except for those documents available via EDGAR; and (iv)
the Company will cause each amendment or supplement to the Prospectus to be filed with the Commission as required pursuant to the
applicable paragraph of Rule 424(b) of the Securities Act or, in the case of any document to be incorporated therein by reference,
to be filed with the Commission as required pursuant to the Exchange Act, within the time period prescribed (the determination
to file or not file any amendment or supplement with the Commission under this Section 7(a), based on the Company’s reasonable
opinion or reasonable objections, shall be made exclusively by the Company).


 


(b)         Notice
of Commission Stop Orders. The Company will advise the Agents, promptly after it receives notice or obtains knowledge thereof,
of the issuance or threatened issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement,
of the suspension of the qualification of the Placement Shares for offering or sale in any jurisdiction, or of the initiation
or threatening of any proceeding for any such purpose; and it will promptly use its commercially reasonable efforts to prevent
the issuance of any stop order or to obtain its withdrawal if such a stop order should be issued. The Company will advise the
Agents promptly after it receives any request by the Commission for any amendments to the Registration Statement or any amendment
or supplements to the Prospectus or any Issuer Free Writing Prospectus or for additional information related to the offering of
the Placement Shares or for additional information related to the Registration Statement, the Prospectus or any Issuer Free Writing
Prospectus.


 






    	 	20	 



     


    

 


(c)         Delivery
of Prospectus; Subsequent Changes. During the Prospectus Delivery Period, the Company will comply with all requirements imposed
upon it by the Securities Act, as from time to time in force, and to file on or before their respective due dates all reports
and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Sections
13(a), 13(c), 14, 15(d) or any other provision of or under the Exchange Act. If the Company has omitted any information from the
Registration Statement pursuant to Rule 430A under the Securities Act, it will use its best efforts to comply with the provisions
of and make all requisite filings with the Commission pursuant to said Rule 430A and to notify the Agents promptly of all such
filings. If during the Prospectus Delivery 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 the Prospectus Delivery Period it is necessary to
amend or supplement the Registration Statement or Prospectus to comply with the Securities Act, the Company will promptly notify
the Designated Agent to suspend the offering of Placement Shares during such period and the Company will promptly amend or supplement
the Registration Statement or Prospectus (at the expense of the Company) so as to correct such statement or omission or effect
such compliance; provided, however, that the Company may delay the filing of any amendment or supplement, if in the judgment of
the Company, it is in the best interests of the Company.


 


(d)         Listing of Placement Shares. During the Prospectus Delivery Period, the Company will use its commercially
reasonable efforts to cause the Placement Shares to be listed on the Exchange and to qualify the Placement Shares for sale under
the securities laws of such jurisdictions as the Agents reasonably designates and to continue such qualifications in effect so
long as required for the distribution of the Placement Shares; provided, however, that the Company shall not be required in connection
therewith to qualify as a foreign corporation or dealer in securities or file a general consent to service of process in any jurisdiction.


 


(e)         Delivery
of Registration Statement and Prospectus. The Company will furnish to each Agent and its respective 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 the Prospectus
Delivery Period (including all documents filed with the Commission during such period that are deemed to be incorporated by reference
therein), in each case as soon as reasonably practicable and in such quantities as the Agents may from time to time reasonably
request and, at Agents’ request, will also furnish copies of the Prospectus to each exchange or market on which sales of
the Placement Shares may be made; provided, however, that the Company shall not be required to furnish any document (other than
the Prospectus) to the Agents to the extent such document is available on EDGAR.


 






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


 


(h)         
Notice of Other Sales. Without the prior written consent of the Agents, the Company will not, directly or
indirectly, offer to sell, sell, contract to sell, grant any option to sell or otherwise dispose of any Common Stock (other than
the Placement Shares offered pursuant to this Agreement) or securities convertible into or exchangeable for Common Stock, warrants
or any rights to purchase or acquire, Common Stock during the period beginning on the date on which any Placement Notice is delivered
to the Agents hereunder and ending on the second (2nd) Trading Day immediately following the final Settlement Date with
respect to Placement Shares sold pursuant to such Placement Notice (or, if the Placement Notice has been terminated or suspended
prior to the sale of all Placement Shares covered by a Placement Notice, the date of such suspension or termination); and will
not directly or indirectly in any other “at the market” or continuous equity transaction offer to sell, sell, contract
to sell, grant any option to sell or otherwise dispose of any Common Stock (other than the Placement Shares offered pursuant to
this Agreement) or securities convertible into or exchangeable for Common Stock, warrants or any rights to purchase or acquire,
Common Stock prior to the termination of this Agreement; provided, however, that such restrictions will not be required in connection
with the Company’s issuance or sale of (i) Common Stock, restricted stock units, options to purchase Common Stock or Common
Stock issuable upon the exercise of options, pursuant to any employee or director stock option or benefits plan, stock ownership
plan or dividend reinvestment plan (but not Common Stock subject to a waiver to exceed plan limits in its dividend reinvestment
plan) of the Company whether now in effect or hereafter implemented, (ii) Common Stock issuable upon conversion of securities or
the exercise of warrants, options or other rights in effect or outstanding, and disclosed in filings by the Company available on
EDGAR or otherwise in writing to the Agents, and (iii) Common Stock, or securities convertible into or exercisable for Common Stock,
offered and sold in a negotiated transaction to vendors, customers, strategic partners or potential strategic partners, acquisition
candidates or other investors conducted in a manner so as not to be integrated with the offering of Common Stock hereby.


 


(i)           Change
of Circumstances. The Company will, at any time during the pendency of a Placement Notice advise the Agents promptly
after it shall have received notice or obtained knowledge thereof, of any information or fact that would alter or affect in
any material respect any opinion, certificate, letter or other document required to be provided to the Agents pursuant to
this Agreement.


 


(j)          
Due Diligence Cooperation. The Company will cooperate with any reasonable due diligence review conducted by
the Agents or their respective representatives in connection with the transactions contemplated hereby, including, without limitation,
providing information and making available documents and senior corporate officers, during regular business hours and at the Company’s
principal offices, as the Agents may reasonably request.


 









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(k)          Required Filings Relating to Placement of Placement Shares. The Company agrees that on such dates as the Securities
Act shall require (including upon the effectiveness of the Replacement S-3), 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 the Agents, the Net Proceeds to the Company and the compensation payable by the Company to the Agents 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.


 


(l)           Representation Dates; Certificate. On the date of this Agreement and within five (5) trading days of
each time the Company:


 


(i)           
files the Prospectus Supplement relating to the Placement Shares or amends or supplements (other than a prospectus
supplement relating solely to an offering of securities other than the Placement Shares), the Registration Statement or the Prospectus
relating to the Placement Shares by means of a post-effective amendment, sticker, or supplement or Form S-3 filed pursuant to Rule
415(a)(6) but not by means of incorporation of documents by reference into the Registration Statement or the Prospectus relating
to the Placement Shares;


 


(ii)          
files an annual report on Form 10-K under the Exchange Act (including any Form 10-K/A containing amended financial
information or a material amendment to the previously filed Form 10-K);


 


(iii)         
files a quarterly report on Form 10-Q under the Exchange Act; or


  


(iv)         
files a current report on Form 8-K containing amended financial information (other than information “furnished”
pursuant to Items 2.02 or 7.01 of Form 8-K or to provide disclosure pursuant to Item 8.01 of Form 8-K relating to the
reclassification of certain properties as discontinued operations in accordance with Statement of Financial Accounting Standards
No. 144) under the Exchange Act; (Each date of filing of one or more of the documents referred to in clauses (i) through
(iv) shall be a “Representation Date”)


 


the Company shall furnish
the Agents (but in the case of clause (iv) above only if any Agent reasonably determines that the information contained in
such Form 8-K is material) with a certificate, in the form attached hereto as Exhibit 7(l) (the “Representation Date Certificate”);
provided however, if no Placement Notice is pending at such Representation Date, then before the Company delivers a Placement Notice
or an Agent sells any Placement Shares, the Company shall provide the Agents with a Representation Date Certificate. The requirement
to provide a Representation Date Certificate shall be waived for any Representation Date occurring at a time at which no Placement
Notice is pending, which waiver shall continue until the earlier to occur of the date the Company delivers a Placement Notice hereunder
(which for such calendar quarter shall be considered a Representation Date) and the next occurring Representation Date; provided,
however, that such waiver shall not apply for any Representation Date on which the Company files its annual report on Form 10-K
or a Form S-3 filed pursuant
to Rule 415(a)(6). Notwithstanding the foregoing, (i) in the case of the first Placement Notice following the date of this Agreement
but prior to the filing of the Company’s annual report on Form 10-K for the year ended December 31, 2019 (the “First
Placement Notice”), or (ii) if the Company subsequently decides to sell Placement Shares following a Representation Date
when the Company relied on such waiver and did not provide the Agents with a Representation Date Certificate, then before the Company
delivers the Placement Notice or an Agent sells any Placement Shares, the Company shall provide the Agents with a Representation
Date Certificate, dated the date of the Placement Notice.


 






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(m)        
Legal Opinion. On the date of this Agreement, the Company shall cause to be furnished to the Agents a written
opinion and negative assurance letter of Squire Patton Boggs (US) LLP (“Company Counsel”), or other counsel
satisfactory to the Agents, in form and substance satisfactory to each Agent and its respective counsel, and a written opinion
of Sheridan Ross P.C. (“Company IP Counsel”), or other counsel satisfactory to the Agents, in form and substance
satisfactory to each Agent and its respective counsel. Thereafter, within five (5) Trading Days of each Representation Date
with respect to which the Company is obligated to deliver a Representation Date Certificate for which no waiver is applicable,
the Company shall cause to be furnished to the Agents a negative assurance letter of Company Counsel in form and substance satisfactory
to each Agent and its respective counsel; provided however, in the case of the First Placement Notice or if no placement notice
is pending at such Representation Date, then before the Company delivers a Placement Notice or an Agent sells any Placement Shares,
the Company shall provide the Agents with such negative assurance letter; provided, further, that in lieu of such negative assurance
letter for subsequent periodic filings under the Exchange Act, counsel may furnish the Agents with a letter (a “Reliance
Letter”) to the effect that the Agents may rely on a prior negative assurance letter delivered under this Section 7(m)
to the same extent as if it were dated the date of such letter (except that statements in such prior negative assurance letter
shall be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented as of the date of the Reliance
Letter).


 


(n)          Comfort Letter. (1) On the date of this Agreement and (2) within five (5) 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(l) for which no waiver is applicable, the Company shall cause its Accountants to furnish the Agents letters (the “Comfort
Letters”), dated the date the Comfort Letter is delivered, which shall meet the requirements set forth in this Section 7(n);
provided however, in the case of the First Placement Notice or if no placement notice is pending at such Representation Date, then
before the Company delivers a Placement Notice or an Agent sells any Placement Shares, the Company shall provide the Agents with
the Comfort Letters; provided, further, that if requested by the Agents, the Company shall cause the Comfort Letters to be furnished
to the Agents within ten (10) Trading Days of the date of occurrence of any material transaction or event, including the restatement
of the Company’s financial statements. The Comfort Letters from the Company’s Accountants shall be in a form and substance
satisfactory to the Agents, (i) confirming that they are an independent public accounting firm within the meaning of the Securities
Act and the Public Company Accounting Oversight Board (the “PCAOB”), (ii) stating, as of such date, the
conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’
 “comfort letters” to underwriters in connection with registered public offerings (the first such letters, the “Initial
Comfort Letters”) and (iii) updating the Initial Comfort Letters with any information that would have been included
in the Initial Comfort Letters had they 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 letters.


 






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(o)         
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 Common Stock or (ii) sell, bid for, or purchase Common
Stock, or pay anyone any compensation for soliciting purchases of the Placement Shares other than the Agents.


 


(p)          Investment Company Act. The Company will conduct its affairs in such a manner so as to reasonably ensure that
it will not become, at any time prior to the termination of this Agreement, an “investment company,” as such term is
defined in the Investment Company Act.


 


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


 


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


 






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8.            Payment
of Expenses. The Company will pay all expenses incident to the performance of its obligations under this Agreement upon
the filing of the Prospectus Supplement, including (i) the preparation, filing, including any fees required by the
Commission, and printing of the Registration Statement (including financial statements and exhibits) as originally filed and
of each amendment and supplement thereto, in such number as the Agents shall deem necessary, (ii) the printing and
delivery to the Agents of this Agreement and such other documents as may be required in connection with the offering,
purchase, sale, issuance or delivery of the Placement Shares, (iii) the preparation, issuance and delivery of the
certificates, if any, for the Placement Shares to the Agents, including any stock or other transfer taxes and any capital
duties, stamp duties or other duties or taxes payable upon the sale, issuance or delivery of the Placement Shares to the
Agents, (iv) the fees and disbursements of the counsel, accountants and other advisors to the Company, (v) the
reasonable out-of-pocket expenses of the Agents, including (i) fees and disbursements of counsel to the ThinkEquity up to
$50,000 and (ii) fees and disbursements of counsel to Roth up to $50,000 (which amounts shall include all fees and
disbursements of each such counsel described in clause (ix) below), (vi) the printing and delivery to the Agents of
copies of any Permitted Issuer Free Writing Prospectus (defined below) and the Prospectus and any amendments or supplements
thereto in such number as the Agents shall deem necessary, (vii) the preparation, printing and delivery to the Agents of
copies of the blue sky survey and any Canadian “wrapper” and any supplements thereto, in such number as the
Agents shall deem necessary, (viii) the fees and expenses of the transfer agent and registrar for the Common Stock,
(ix) the fees and expenses incident to any review by FINRA of the terms of the sale of the Placement Shares as referenced in (v)(i) above, and (x) the fees and expenses incurred in connection with the listing
of the Placement Shares on the Exchange.


 


9.            Conditions to Agents’ Obligations. The obligations of the Agents hereunder with respect to a Placement
will be subject to the continuing accuracy and completeness of the representations and warranties made by the Company herein, to
the due performance by the Company of its obligations hereunder, to the completion by the Agents of a due diligence review satisfactory
to each in its reasonable judgment, and to the continuing satisfaction (or waiver by the Agents in their sole discretion; provided
that in the case of the First Placement Notice, any such waiver shall be in the mutual agreement of both Agents) of the following
additional conditions:


 






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(a)           Registration Statement Effective. The Registration Statement shall have become effective and shall be available
for the sale of all Placement Shares contemplated to be issued by any Placement Notice.



 


(b)          No Material Notices. None of the following events shall have occurred and be continuing: (i) receipt
by the Company of any request for additional information from the Commission or any other federal or state governmental authority
during the period of effectiveness of the Registration Statement, the response to which would require any post-effective amendments
or supplements to the Registration Statement or the Prospectus; (ii) the issuance by the Commission or any other federal or
state governmental authority of any stop order suspending the effectiveness of the Registration Statement or the initiation of
any proceedings for that purpose; (iii) receipt by the Company of any notification with respect to the suspension of the qualification
or exemption from qualification of any of the Placement Shares for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose; or (iv) the occurrence of any event that makes any material statement made in the Registration
Statement or the Prospectus or any material document incorporated or deemed to be incorporated therein by reference untrue in any
material respect or that requires the making of any changes in the Registration Statement, the Prospectus or documents so that,
in the case of the Registration Statement, it will not contain any materially untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the statements therein not misleading and, that in the case
of the Prospectus, it will not contain any materially untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made,
not misleading.


 


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


 


(d)          Material Changes. Except as contemplated in the Prospectus, or disclosed in the Company’s reports filed
with the Commission, there shall not have been any material adverse change, on a consolidated basis, in the authorized capital
stock of the Company or any Material Adverse Effect, or any development that could reasonably be expected to cause a Material Adverse
Effect, or a downgrading in or withdrawal of the rating assigned to any of the Company’s securities (other than asset backed
securities) by any rating organization or a public announcement by any rating organization that it has under surveillance or review
its rating of any of the Company’s securities (other than asset backed securities), the effect of which, in the case of any
such action by a rating organization described above, in the reasonable judgment of the Agents (without relieving the Company of
any obligation or liability it may otherwise have), is so material as to make it impracticable or inadvisable to proceed with the
offering of the Placement Shares on the terms and in the manner contemplated in the Prospectus.


 






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


 


(f)           IP Opinion. The Agents shall have received the opinions of Company IP Counsel required to be delivered pursuant
Section 7(m) on or before the date on which such delivery of such opinion is required pursuant to Section 7(m).


 


(g)          Comfort Letter. The Agents shall have received the Comfort Letters required to be delivered pursuant Section 7(n)
on or before the date on which such delivery of such Comfort Letters are required pursuant to Section 7(n).


 


(h)          Representation Certificate. The Agents shall have received the certificate required to be delivered pursuant
to Section 7(l) on or before the date on which delivery of such certificate is required pursuant to Section 7(l).


 


(i)           Secretary’s Certificate. On the date of this Agreement, the Agents shall have received a certificate,
signed on behalf of the Company by its corporate Secretary, in form and substance satisfactory to each Agent and their respective
counsel.


 


(j)           No Suspension. Trading in the Common Stock shall not have been suspended on the Exchange, and the Common
Stock shall not have been delisted from the Exchange.


 


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


 


(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 approved for listing quotation on the Exchange,
subject only to notice of issuance, or the Company shall have filed an application for listing quotation of the Placement Shares
on the Exchange at, or prior to, the issuance of any Placement Notice.


 


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


  






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10.          Indemnification and Contribution.


 


(a)          Company Indemnification. The Company agrees to indemnify and hold harmless the Agents, their partners, members,
directors, officers, employees and agents and each person, if any, who controls either Agent within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act as follows:


 


(i)            against any and all loss, liability, claim, damage and expense whatsoever, as incurred, joint or several, arising
out of or based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary
to make the statements therein not misleading, or arising out of any untrue statement or alleged untrue statement of a material
fact included in any related Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;


 


(ii)           against any and all loss, liability, claim, damage and expense whatsoever, as incurred, joint or several, to the
extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged
untrue statement or omission; provided that (subject to Section 10(d) below) any such settlement is effected with the written
consent of the Agents, which consent shall not unreasonably be delayed or withheld; and


 


(iii)          against any and all expense whatsoever, as incurred (including the fees and disbursements of counsel), reasonably
incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above, provided,
however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising
out of any untrue statement or omission or alleged untrue statement or omission made solely in reliance upon and in conformity
with written information furnished to the Company by either Agent expressly for use in the Registration Statement (or any amendment
thereto), or in any related Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto).


 


(b)          Indemnification by the Agents. Each Agent, severally and not jointly, agrees to indemnify and hold harmless
the Company and its directors and each officer of the Company who signed the Registration Statement, and each person, if any, who
(i) controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
or (ii) is controlled by or is under common control with the Company against any and all loss, liability, claim, damage and
expense described in the indemnity contained in Section 10(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 information relating to such Agent and furnished
to the Company in writing by such Agent expressly for use therein.


 






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(c)          Procedure. Any party that proposes to assert the right to be indemnified under this Section 10 will,
promptly after receipt of notice of commencement of any action against such party in respect of which a claim is to be made against
an indemnifying party or parties under this Section 10, notify each such indemnifying party of the commencement of such action,
enclosing a copy of all papers served, but the omission so to notify such indemnifying party will not relieve the indemnifying
party from (i) any liability that it might have to any indemnified party otherwise than under this Section 10 and (ii) any
liability that it may have to any indemnified party under the foregoing provision of this Section 10 unless, and only to the
extent that, such omission results in the forfeiture of substantive rights or defenses by the indemnifying party. If any such action
is brought against any indemnified party and it notifies the indemnifying party of its commencement, the indemnifying party will
be entitled to participate in and, to the extent that it elects by delivering written notice to the indemnified party promptly
after receiving notice of the commencement of the action from the indemnified party, jointly with any other indemnifying party
similarly notified, to assume the defense of the action, with counsel reasonably satisfactory to the indemnified party, and after
notice from the indemnifying party to the indemnified party of its election to assume the defense, the indemnifying party will
not be liable to the indemnified party for any legal or other expenses except as provided below and except for the reasonable costs
of investigation subsequently incurred by the indemnified party in connection with the defense. The indemnified party will have
the right to employ its own counsel in any such action, but the fees, expenses and other charges of such counsel will be at the
expense of such indemnified party unless (1) the employment of counsel by the indemnified party has been authorized in writing
by the indemnifying party, (2) the indemnified party has reasonably concluded (based on written 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 written 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 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 10 (whether or not any indemnified party
is a party thereto), unless such settlement, compromise or consent (1) includes an unconditional release of each indemnified
party from all liability arising out of such litigation, investigation, proceeding or claim and (2) does not include a statement
as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.


 






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(d)          Contribution. In order to provide for just and equitable contribution in circumstances in which the indemnification
provided for in the foregoing paragraphs of this Section 10 is applicable in accordance with its terms but for any reason
is held to be unavailable from the Company or an Agent, the Company and such Agent will contribute to the total losses, claims,
liabilities, expenses and damages (including any investigative, legal and other expenses reasonably incurred in connection with,
and any amount paid in settlement of, any action, suit or proceeding or any claim asserted, but after deducting any contribution
received by the Company from persons other than the Agents, such as persons who control the Company within the meaning of the Securities
Act, officers of the Company who signed the Registration Statement and directors of the Company, who also may be liable for contribution)
to which the Company and the Agents may be subject in such proportion as shall be appropriate to reflect the relative benefits
received by the Company on the one hand and the Agents on the other hand. The relative benefits received by the Company on the
one hand and the Agents on the other hand shall be deemed to be in the same proportion as the total net proceeds from the sale
of the Placement Shares (before deducting expenses) received by the Company bear to the total compensation received by the Agents
(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 such Agent, on the other hand, 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 such Agent, the intent of the parties and their relative knowledge, access to information and opportunity to correct
or prevent such statement or omission. The Company and each Agent agree that it would not be just and equitable if contributions
pursuant to this Section 10(d) were to be determined by pro rata allocation or by any other method of allocation that does
not take into account the equitable considerations referred to herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, liability, expense, or damage, or action in respect thereof, referred to above in this Section 10(d)
shall be deemed to include, for the purpose of this Section 10(d), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action or claim to the extent consistent with Section 10(c)
hereof. Notwithstanding the foregoing provisions of this Section 10(d), an Agent shall not be required to contribute any amount
in excess of the commissions received by it under this Agreement and no person found guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) will be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section 10(d), any person who controls a party to this Agreement within
the meaning of the Securities Act, and any officers, directors, partners, employees or agents of an Agent, will have the same rights
to contribution as that party, and each officer of the Company who signed the Registration Statement will have the same rights
to contribution as the Company, subject in each case to the provisions hereof. Any party entitled to contribution, promptly after
receipt of notice of commencement of any action against such party in respect of which a claim for contribution may be made under
this Section 10(d), will notify any such party or parties from whom contribution may be sought, but the omission to so notify
will not relieve that party or parties from whom contribution may be sought from any other obligation it or they may have under
this Section 10(d) except to the extent that the failure to so notify such other party materially prejudiced the substantive
rights or defenses of the party from whom contribution is sought. Except for a settlement entered into pursuant to the last sentence
of Section 10(c) hereof, no party will be liable for contribution with respect to any action or claim settled without its
written consent if such consent is required pursuant to Section 10(c) hereof.


 






    31


     


    

 


11.          Additional Covenants.


 


(a)           Representations and Covenants of each Agent. Each Agent represents and warrants that it is duly registered
as a broker-dealer under FINRA, the Exchange Act and the applicable statutes and regulations of each state in which the Placement
Shares will be offered and sold, except such states in which such Agent is exempt from registration or such registration is not
otherwise required. Each Agent shall continue, for the term of this Agreement, to be duly registered as a broker-dealer under FINRA,
the Exchange Act and the applicable statutes and regulations of each state in which the Placement Shares will be offered and sold,
except such states in which such Agent is exempt from registration or such registration is not otherwise required, during the term
of this Agreement. Each Agent shall comply with all applicable law and regulations in connection with the transactions contemplated
by this Agreement, including the issuance and sale through such Agent of the Placement Shares.


 


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


 


(c)         No
Public Announcements. None of the parties hereto shall, without the approval of the other parties (which may not be unreasonably
withheld, conditioned, or delayed), make any press release or other public announcement concerning the transactions contemplated
by this Agreement, except as and to the extent that such party shall be so obligated by applicable law or regulation, in which
case the other parties shall be advised and all parties shall use their best efforts to cause a mutually agreeable release or
announcement to be issued.





 


12.          Termination.


 


(a)          An Agent may terminate this Agreement with respective to itself, by notice to the Company, as hereinafter specified
at any time (1) if there has been, since the time of execution of this Agreement or since the date as of which information
is given in the Prospectus, any Material Adverse Effect, or any development that is reasonably likely to have a Material Adverse
Effect or, in the sole judgment of such Agent, is material and adverse and makes it impractical or inadvisable to market the Placement
Shares or to enforce contracts for the sale of the Placement Shares, (2) if there has occurred any material adverse change
in the financial markets in the United States or the international financial markets, any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development involving a prospective change in national or international political,
financial or economic conditions, in each case the effect of which is such as to make it, in the judgment of such Agent, impracticable
or inadvisable to market the Placement Shares or to enforce contracts for the sale of the Placement Shares, (3) if trading
in the Common Stock has been suspended or limited by the Commission or the Exchange, or if trading generally on the Exchange has
been suspended or limited, or minimum prices for trading have been fixed on the Exchange, (4) if any suspension of trading
of any securities of the Company on any exchange or in the over-the-counter market shall have occurred and be continuing, (5) if
a major disruption of securities settlements or clearance services in the United States shall have occurred and be continuing,
or (6) if a banking moratorium has been declared by either U.S. Federal or New York authorities. Any such termination shall
be without liability of any party to any other party except that the provisions of Section 8 (Expenses), Section 10 (Indemnification),
Section 11 (Survival of Representations), Section 17 (Governing Law; Consent to Jurisdiction) and Section 18 (Waiver
of Jury Trial) hereof shall remain in full force and effect notwithstanding such termination. If an Agent elects to terminate this
Agreement as provided in this Section 12(a), such Agent shall provide the required notice as specified in Section 13
(Notices).


 






    32


     


    

 


(b)          The Company shall have the right, by giving five (5) days’ written notice as hereinafter specified, to terminate
this Agreement as to both Agents 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 8, Section 10, Section 11,
Section 17 and Section 18 hereof shall remain in full force and effect notwithstanding such termination.


 


(c)           Each Agent shall have the right, by giving five (5) days’ written notice as hereinafter specified, to terminate
this Agreement as to itself 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 8, Section 10, Section 11,
Section 17 and Section 18 hereof shall remain in full force and effect notwithstanding such termination.


 


(d)          Unless earlier terminated pursuant to this Section 12, this Agreement shall automatically terminate upon the
issuance and sale of all of the Placement Shares through the Agents on the terms and subject to the conditions set forth herein;
provided that the provisions of Section 8, Section 10, Section 11, Section 17 and Section 18 hereof shall
remain in full force and effect notwithstanding such termination.


 


(e)          This Agreement shall remain in full force and effect unless terminated pursuant to Sections 12(a), (b), (c), or (d) above
or otherwise by unanimous agreement of all of the parties; provided, however, that any such termination by unanimous agreement
shall in all cases be deemed to provide that Section 8, Section 10, Section 11, Section 17 and Section 18
shall remain in full force and effect.


 






    33


     


    

 


 



  


(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 an Agent
or the Company, as the case may be. If such termination shall occur prior to the Settlement Date for any sale of Placement Shares,
such Placement Shares shall settle in accordance with the provisions of this Agreement.


 


(g)              
Subject to the additional limitations set forth in Section 8 of this Agreement, in the event of termination
of this Agreement prior to the sale of any Placement Shares, the Agents shall be entitled only to reimbursement of their respective
out-of-pocket expenses actually incurred.


 


13.         
Notices. All notices or other communications required or permitted to be given by any party to any other party
pursuant to the terms of this Agreement shall be in writing, unless otherwise specified, and if sent to the Agents, shall be delivered
to:


 


If to ThinkEquity to:


 


ThinkEquity, a division of Fordham
Financial Management, Inc.


17 State Street, 22nd Floor


New York, NY 10004


Attn: Eric Lord


Email: notices@think-equity.com


 


With a copy to:


 


Loeb & Loeb LLP


345 Park Avenue


New York, NY 10154


Attn: Mitchell S. Nussbaum


E-mail: mnussbaum@loeb.com


 


If to Roth, to:


Roth Capital Partners, LLC


888 San Clemente


Newport Beach, CA 92660


Fax No.: (949) 720-7227


Attention: Equity Capital Markets


E-mail: RothECM@roth.com


 


With a copy to:


 


Duane Morris LLP


1540 Broadway


New York, NY 10036


Attn: James T. Seery


E-mail: jtseery@duanemorris.com


 






    	 	34	 



     


    

 


and if to the Company, shall be delivered
to:


 


Ampio Pharmaceuticals, Inc.


373 Inverness Parkway, Suite
200


Englewood, Colorado 80112


Attn: Daniel G Stokely, CPA


E-mail: dstokely@ampiopharma.com


 


with a copy to:


 


Squire Patton Boggs (US) LLP


4900 Key Tower, 127 Public Square


Cleveland, Ohio 44114-1304


Attn: Leah G. Brownlee


E-mail: leah.brownlee@squirepb.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 or, if such day is
not a Business Day, on the next succeeding Business Day, (ii) on the next Business Day after timely delivery to a nationally-recognized
overnight courier and (iii) on the Business Day actually received if deposited in the U.S. mail (certified or registered mail,
return receipt requested, postage prepaid).


 


An electronic communication
(“Electronic Notice”) shall be deemed written notice for purposes of this Section 13 if sent to the electronic
mail address specified by the receiving party under separate cover. Electronic Notice shall be deemed received at the time the
party sending Electronic Notice receives verification of receipt by the receiving party. Any party receiving Electronic Notice
may request and shall be entitled to receive the notice on paper, in a nonelectronic form (“Nonelectronic Notice”)
which shall be sent to the requesting party within ten (10) days of receipt of the written request for Nonelectronic Notice.


 


14.             
Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the Company and each
Agent and their respective successors and the affiliates, controlling persons, officers and directors referred to in Section 10
hereof. References to any of the parties contained in this Agreement shall be deemed to include the successors and permitted assigns
of such party. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto
or their respective successors and permitted assigns any rights, remedies, obligations or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement. Neither the Company nor the Agents may assign its rights or obligations
under this Agreement without the prior written consent of the other party; provided, however, that the Agents may assign its rights
and obligations hereunder to an affiliate thereof without obtaining the Company’s consent.


 






    	 	35	 



     


    

 


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


 


16.             
Entire Agreement; Amendment; Severability. This Agreement (including all schedules and exhibits attached hereto
and Placement Notices issued pursuant hereto), together with the Designated Agent Agreement, constitutes the entire agreement and
supersedes all other prior and contemporaneous agreements and undertakings, both written and oral, among the parties hereto with
regard to the subject matter hereof, except as set forth below. Neither this Agreement nor any term hereof may be amended except
pursuant to a written instrument executed by the Company and each Agent. In the event that any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable as written by a court of competent
jurisdiction, then such provision shall be given full force and effect to the fullest possible extent that it is valid, legal and
enforceable, and the remainder of the terms and provisions herein shall be construed as if such invalid, illegal or unenforceable
term or provision was not contained herein, but only to the extent that giving effect to such provision and the remainder of the
terms and provisions hereof shall be in accordance with the intent of the parties as reflected in this Agreement. Notwithstanding
this Section 16 or any other provision contained herein or in the Designated Agent Agreement, the provisions of (i) the Engagement
Letter dated as of June 10, 2019, and (ii) the Placement Agency Agreement dated June 17, 2019, in each case between the Company
and ThinkEquity, shall not be modified or superseded, and shall remain effective in all respects as originally agreed to by the
parties thereto, provided that the limitations set forth in Section 3.19 in the Placement Agency Agreement shall not apply to this
Agreement and the provisions of Section 6 of the Placement Agency Agreement and Section 16 of the Engagement Letter shall be deemed
to have been complied with pursuant to this Agreement and the Designated Agent Agreement.


 


17.             
GOVERNING LAW AND TIME; WAIVER OF JURY TRIAL. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS. SPECIFIED TIMES OF DAY REFER TO NEW
YORK CITY TIME. THE COMPANY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.


 


18.            
CONSENT TO JURISDICTION. 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.


 






    	 	36	 



     


    

 


19.             
Use of Information. The Agents may not use any information gained in connection with this Agreement and the transactions
contemplated by this Agreement, including due diligence, to advise any party with respect to transactions not expressly approved
by the Company.


 


20.             
Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same instrument. Delivery of an executed Agreement by one party
to the other may be made by facsimile transmission.


 


21.             
Effect of Headings. The section and Exhibit headings herein are for convenience only and shall not affect
the construction hereof.


 


22.             
Permitted Free Writing Prospectuses.


 


The Company represents, warrants and agrees
that, unless it obtains the prior consent of each Agent, and each Agent represents, warrants and agrees that, unless it obtains
the prior consent of the Company, it has not made and will not make any offer relating to the Placement Shares that would constitute
an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405,
required to be filed with the Commission. Any such free writing prospectus consented to by the Agents or by the Company, as the
case may be, is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents and warrants
that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,”
as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted
Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping.


 


23.             
Absence of Fiduciary Relationship.


 


The Company acknowledges
and agrees that:


 


(a)              
Each Agent is acting solely as agent in connection with the public offering of the Placement Shares and in connection
with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory
relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees
or any other party, on the one hand, and the Agents, on the other hand, has been or will be created in respect of any of the transactions
contemplated by this Agreement, irrespective of whether or not any Agent has advised or is advising the Company on other matters,
and the Agents have no obligation to the Company with respect to the transactions contemplated by this Agreement except the obligations
expressly set forth in this Agreement;


 






    	 	37	 



     


    




 


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


 


(c)              
the Agents have not provided any legal, accounting, regulatory or tax advice with respect to the transactions contemplated
by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;


 


(d)              
it is aware that the Agents and their affiliates are engaged in a broad range of transactions which may involve interests
that differ from those of the Company and the Agents have no obligation to disclose such interests and transactions to the Company
by virtue of any fiduciary, advisory or agency relationship or otherwise; and


 


(e)              
it waives, to the fullest extent permitted by law, any claims it may have against the Agents 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 the
Agents shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary
duty claim or to any person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors
of Company, other than in respect of the Agents’ obligations under this Agreement and to keep information provided by the
Company to each Agent and its respective counsel confidential to the extent not otherwise publicly-available.


 


24.             
Definitions.


 


As used in this Agreement,
the following terms have the respective meanings set forth below:


 


“Applicable
Time” means (i) each Representation Date, (ii) the time of each sale of any Placement Shares pursuant to this
Agreement, and (iii) each Settlement Date.


 


“Business
Day” shall mean any day on which the Exchange and commercial banks in the City of New York are open for business.


 


“Issuer Free
Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433, relating to
the Placement Shares that (1) is required to be filed with the Commission by the Company, (2) is a “road show”
that is a “written communication” within the meaning of Rule 433(d)(8)(i) whether or not required to be filed
with the Commission, or (3) is exempt from filing pursuant to Rule 433(d)(5)(i) because it contains a description of
the Placement Shares or of the offering that does not reflect the final terms, 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) under the Securities Act.


 






    	 	38	 



     


    




 


“Rule 172,”
 “Rule 405,” “Rule 415,” “Rule 424,” “Rule 424(b),”
 “Rule 430B,” and “Rule 433” refer to such rules under the Securities Act.


 


“Trading Day”
means any day on which shares of Common Stock are purchased and sold on the Exchange.


 


All references in this
Agreement to financial statements and schedules and other information that is “contained,” “included” or
 “stated” in the Registration Statement or the Prospectus (and all other references of like import) shall be deemed
to mean and include all such financial statements and schedules and other information that is incorporated by reference in the
Registration Statement or the Prospectus, as the case may be.


 


All references in this
Agreement to the Registration Statement, the Prospectus or any amendment or supplement to any of the foregoing shall be deemed
to include the copy filed with the Commission pursuant to EDGAR; all references in this Agreement to any Issuer Free Writing Prospectus
(other than any Issuer Free Writing Prospectuses that, pursuant to Rule 433, are not required to be filed with the Commission)
shall be deemed to include the copy thereof filed with the Commission pursuant to EDGAR; and all references in this Agreement to
 “supplements” to the Prospectus shall include, without limitation, any supplements, “wrappers” or similar
materials prepared in connection with any offering, sale or private placement of any Placement Shares by the Agents outside of
the United States.


 






    	 	39	 



     


    

  


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


 








 


	Very truly yours,	 
	 	 
	 	AMPIO PHARMACEUTICALS, INC.
	 	 
	 	 
	 	By: 	               
	 	Name:
	 	Title:
	 	 
	 	 
	 	ACCEPTED as of the date first-above written:
	 	 
	 	 
	 	THINKEQUITY, A DIVISION OF FORDHAM FINANCIAL MANAGEMENT, INC.
	 	 
	 	 
	 	By:	
	 	Name:
	 	Title:
	 	 
	 	 
	 	ROTH CAPITAL PARTNERS, LLC
	 	 
	 	 
	 	By:	
	 	Name:
	 	Title:


 






    	 	40	 



     


    

  


SCHEDULE 1


  





 



  


FORM OF PLACEMENT NOTICE


 





 






 


From:                    AMPIO PHARMACEUTICALS, INC.


 


To:                        THINKEQUITY, A DIVISION OF FORDHAM FINANCIAL MANAGEMENT,
INC. AND ROTH CAPITAL PARTNERS, LLC]


 


Attention:              _____________________


 


 _____________________


 


Subject:                 Placement Notice


 


Date:


 


Gentlemen:


 


Pursuant to the terms
and subject to the conditions contained in the Sales Agreement among Ampio Pharmaceuticals, Inc. (the “Company”) ThinkEquity,
a division of Fordham Financial Management, Inc. (“ThinkEquity”) and Roth Capital Partners, LLC (“Roth”),
dated February [•], 2020, the Company hereby requests that [Identify Designated Agent in accordance with the provisions
of the Designated Agent Agreement] sell up to ____________ of the Company’s Common Stock, $0.0001 par value per share,
at a minimum market price of $_______ per share, during the time period beginning [month, day, time] and ending [month, day, time].”


 






    	 	41	 



     


    

 


SCHEDULE 2


  


 






 


Compensation


  


 






 





The Company shall pay to the Designated
Agent in cash, upon each sale of Placement Shares pursuant to this Agreement, an amount equal to 2.0% of the gross proceeds from
each sale of Placement Shares through such Designated Agent.


 


The Company shall pay to the other Agent, in cash, within five (5) Trading Days following the end of each month in which Placement
Shares are sole, an amount equal to 2.0% of the gross proceeds from each sale of Placement Shares made in such month.


 



    	 	42	 



     


    




 


SCHEDULE 3


 





 






 


Notice Parties


  


 









 


The Company


 


	Daniel G Stokely	dstokely@ampiopharma.com






	Michael Macaluso 	mmacaluso@ampiopharma.com










With a copy to Notices@ampiopharma.com



 


ThinkEquity


 


	William Baquet	wbaquet@fordhamfinancial.com



 


With a copy to DealTeam@think-equity.com and Notices@think-equity.com


 


Roth


 


	Eric Cheng	echeng@roth.com



	Lou Ellis	LEllis@roth.com



	Nazan Akdeniz	NAkdeniz@roth.com



Phil DiNapoli pdinapoli@roth.com




 


With a copy to RothECM@roth.com


 






    	 	43	 



     


    

 


EXHIBIT 7(m)


 


Form of Representation Date Certificate


 


____________________, 20__


 


This Representation
Date Certificate (this “Certificate”) is executed and delivered in connection with Section 7(l) of the Sales Agreement
(the “Agreement”), dated February [•], 2020, and entered into among Ampio Pharmaceuticals, Inc. (the “Company”),
ThinkEquity, a division of Fordham Financial Management, Inc. and Roth Capital Partners, LLC. All capitalized terms used but not
defined herein shall have the meanings given to such terms in the Agreement


 


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


 





		1.	As of the date of this Certificate, (i) the Registration Statement does not contain any untrue
statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements
therein not misleading and (ii) neither the Registration Statement nor the Prospectus contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading and (iii) no event has occurred as a result of which it is necessary
to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading.
	 	 	 



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



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



		4.	Subsequent to the date of the most recent financial statements in the Prospectus, there has been
no Material Adverse Effect.
	 	 	 



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








 






    	 	44	 



     


    

 


The undersigned has
executed this Representation Date Certificate as of the date first written above.


 


 


	 	AMPIO PHARMACEUTICALS, INC.
	 	 
	 	 
	 	By:	             
	 	Name:
	 	Title:






 






    	 	45