Exhibit 10.26


 





Peregrine
Pharmaceuticals, Inc.


Common
Stock

(par value $0.001 per share)


 


At Market Issuance Sales Agreement


 


August 7, 2015


 


 


 


MLV & Co. LLC


1301 Avenue of the Americas


43rd Floor

New York, NY 10019


 


 


 


Ladies and Gentlemen:


 


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


 


 


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


 


The Company has filed
with the Commission, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”),
and the rules and regulations thereunder (the “Securities Act Regulations”), a Registration Statement on Form
S-3 (No. 333-201245), including a base prospectus, relating to certain securities, including, generally, the Placement Shares,
to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will
file in accordance with the provisions of the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
and the rules and regulations thereunder (the “Exchange Act Regulations”). The Company 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 MLV upon request, for use by MLV, copies of the base
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, including all documents filed as part thereof
or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed
with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration
statement pursuant to Rule 430B of the Securities Act Regulations, is herein called the “Registration Statement.”
The base prospectus, including all documents incorporated therein by reference, included in the Registration Statement, as it may
be supplemented by the Prospectus Supplement, in the form in which such Prospectus Supplement have most recently been filed by
the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations is hereinafter called the “Prospectus”.
Any reference herein to the Registration Statement, the Prospectus or any amendment or supplement thereto shall be deemed to refer
to and include the documents incorporated by reference therein, and any reference herein to the terms “amend,” “amendment”
or “supplement” with respect to the Registration Statement or the Prospectus shall be deemed to refer to and include
the filing after the execution hereof of any document with the Commission deemed to be incorporated by reference therein (the “Incorporated
Documents”).


 



    	 		 



     

    





For purposes of this
Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed
to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System,
or if applicable, the Interactive Data Electronic Application system when used by the Commission (collectively, “EDGAR”).


 


2.Placements.
Each time that the Company wishes to issue and sell Placement Shares hereunder (each, a “Placement”), it will
notify MLV by email notice (or other method mutually agreed to in writing by the Parties) of the number of Placement Shares to
be issued, the time period during which sales are requested to be made, any limitation on the number of 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 MLV set forth on Schedule 3, as such Schedule 3 may be amended from time to time. The Placement
Notice shall be effective unless and until (i) MLV declines to accept the terms contained therein for any reason, in its sole
discretion, (ii) the entire amount of the Placement Shares have been sold, (iii) the Company suspends or terminates the
Placement Notice or (iv) the Agreement has been terminated under the provisions of Section 12. The amount of any commission
to be paid by the Company to MLV in connection with the sale of the Placement Shares shall be calculated in accordance with the
terms set forth in Schedule 2. The Company acknowledges that MLV may share the commission with other broker-dealers. It is expressly
acknowledged and agreed that neither the Company nor MLV will have any obligation whatsoever with respect to a Placement or any
Placement Shares unless and until the Company delivers a Placement Notice to MLV and MLV does not decline such Placement Notice
pursuant to the terms set forth above, and then only upon the terms specified therein and herein. In the event of a conflict between
the terms of this Agreement and the terms of a Placement Notice, the terms of the Placement Notice will control.


 



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3.Sale of Placement Shares by MLV.


 


(a)Subject to the
terms and conditions herein set forth, upon the Company’s issuance of a Placement Notice, and unless the sale of the Placement
Shares described therein has been declined, suspended, or otherwise terminated in accordance with the terms of this Agreement,
MLV will use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Placement
Shares up to the amount specified, and otherwise in accordance with the terms of such Placement Notice. MLV will provide written
confirmation to the Company no later than the opening of the Trading Day (as defined below) immediately following the Trading Day
on which it has made sales of Placement Shares hereunder setting forth the number of Placement Shares sold on such day, the compensation
payable by the Company to MLV pursuant to Section 2 with respect to such sales, and the Net Proceeds (as defined below) payable
to the Company. MLV may sell Placement Shares by any method permitted by law deemed to be an “at the market offering”
as defined in Rule 415 of the Securities Act, including without limitation sales made directly on the NASDAQ Capital Market (the
“Exchange”), on any other existing trading market for the Common Stock or to or through a market maker. MLV
may also sell Placement Shares in negotiated transactions, subject to approval by the Company. The Company acknowledges and agrees
that (i) there can be no assurance that MLV will be successful in selling Placement Shares, and (ii) MLV will incur no
liability or obligation to the Company or any other person or entity if it does not sell Placement Shares for any reason other
than a failure by MLV to use its commercially reasonable efforts consistent with its normal trading and sales practices to sell
such Placement Shares as required under this Section 3. For the purposes hereof, “Trading Day” means any day
on which Common Stock is purchased and sold on the principal market on which the Common Stock is listed or quoted.


 


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


 


(c)During the term
of this Agreement, neither MLV nor any of its affiliates or subsidiaries shall engage in (i) any short sale of any security of
the Company or (ii) any sale of any security of the Company that MLV does not own or any sale which is consummated by the delivery
of a security of the Company borrowed by, or for the account of, MLV. During the term of this Agreement, neither MLV nor any of
its affiliates or subsidiaries, shall engage in any proprietary trading or trading for MLV’s (or its affiliates’ or
subsidiaries’) own account.


 



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


 


5.Settlement.


 


(a)Settlement
of Placement Shares. Unless otherwise specified in the applicable Placement Notice, settlement for sales of Placement Shares
will occur on the third (3rd) Trading Day (or such earlier day as is industry practice for regular-way trading) (each, a “Settlement
Date”) following the respective Point of Sale (as defined below). The amount of proceeds to be delivered to the Company
on a Settlement Date against receipt of the Placement Shares sold (the “Net Proceeds”) will be equal to the
aggregate sales price received by MLV at which such Placement Shares were sold, after deduction for (i) MLV’s commission
for such sales payable by the Company pursuant to Section 2 hereof, (ii) any other amounts due and payable by the Company
to MLV hereunder pursuant to Section 7(g) (Expenses) hereof, and (iii) any transaction fees imposed by any governmental or
self-regulatory organization in respect of such sales.


 


(b)Delivery of
Placement Shares. On or before each Settlement Date, the Company will, or will cause its transfer agent to, electronically
transfer the Placement Shares being sold by crediting MLV’s or its designee’s account at The Depository Trust Company
through its Deposit and Withdrawal at Custodian System ("DWAC") or by such other means of delivery as may be mutually
agreed upon by the parties hereto which in all cases shall be freely tradeable, transferable, registered shares in good deliverable
form. On each Settlement Date, MLV will deliver the related Net Proceeds in same day funds to an account designated by the Company
on, or prior to, the Settlement Date. MLV will be responsible for obtaining DWAC instructions or instructions for delivery by other
means with regard to the transfer of Placement Shares being sold. The Company agrees that if the Company, or its transfer agent
(if applicable), defaults in its obligation to deliver Placement Shares on a Settlement Date, the Company agrees that in addition
to and in no way limiting the rights and obligations set forth in Section 10(a) (Indemnification and Contribution) hereto, it will
(i) hold MLV harmless against any loss, claim, damage, or expense (including reasonable legal fees and expenses), as incurred,
arising out of or in connection with such default by the Company and (ii) pay to MLV any commission to which it would otherwise
have been entitled absent such default.


 



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


 


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


 


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


 



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


 


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


 


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


 



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


 


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


 


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


 


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


 



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


 


(k)Clinical Studies.
All studies, tests and preclinical and clinical trials conducted by, or on behalf of, the Company or any Subsidiary have been conducted
in material compliance with experimental protocols, procedures and controls pursuant to accepted professional scientific standards
and applicable local, state and federal laws, rules, regulations and guidances, including, but not limited to the applicable requirements
of Good Laboratory Practices or Good Clinical Practices, as applicable. To the knowledge of the Company, there are no studies,
tests or trials the results of which call into question the clinical results described or referred to in the Registration Statement
and Prospectus. Neither the Company nor any Subsidiary has received any notices, correspondence or other communication from the
FDA or any other governmental authority requiring the termination, suspension or material modification of any ongoing or planned
clinical trials conducted by, or on behalf of, the Company or any Subsidiary, or in which the Company or any Subsidiary has participated,
and the Company has no knowledge or reason to believe that the FDA or any other governmental authority is considering such action.
Neither the Company nor any Subsidiary, nor, to the knowledge of the Company, any officer, employee or agent of the Company or
any Subsidiary has been convicted of any crime or engaged in any conduct that would reasonably be expected to result in debarment
under 21 U.S.C. Section 335a or any similar law or regulation. The descriptions in the Registration Statement and the Prospectus
of the results of such studies and tests are accurate and complete in all material respects and fairly present the published data
derived from such studies and tests.


 



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


 


(m)Authorization of Placement Shares.
The issuance of Placement Shares has been duly and validly authorized by the Company, and the Placement Shares, when issued, delivered
and paid for in accordance with the terms of this Agreement, will have been duly and validly issued and will be fully paid and
nonassessable, free and clear of any pledge, lien, encumbrance, security interest or other claim, including any statutory or contractual
preemptive rights, resale rights, rights of first refusal or other similar rights, and will be registered pursuant to Section 12
of the Exchange Act. The Placement Shares, when issued, will conform in all material respects to the description thereof set forth
in or incorporated into the Prospectus.


 


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


 


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


 


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


 



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


 


(r)No Litigation.
Except as set forth in the Registration Statement or the Prospectus, there are no legal, governmental or regulatory actions, suits
or proceedings pending, nor, to the Company’s knowledge, any legal, governmental or regulatory investigations, to which the
Company is a party or to which any property of the Company is the subject that, individually or in the aggregate, if determined
adversely to the Company, would reasonably be expected to have a Material Adverse Effect or materially and adversely affect the
ability of the Company to perform its obligations under this Agreement; to the Company’s knowledge, no such actions, suits
or proceedings are threatened or contemplated by any governmental or regulatory authority or threatened by others; and (i) there
are no current or pending legal, governmental or regulatory investigations, actions, suits or proceedings that are required under
the 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.


 


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


 


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


 



    	 	10	 



     

    




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


 


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


 


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


 


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


 


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


 



    	 	11	 



     

    




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


 


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


 


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


 



    	 	12	 



     

    




(cc)Disclosure
Controls. The Company maintains systems of internal accounting controls sufficient to provide reasonable assurance that (i) transactions
are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset
accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization;
and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences. The Company has established disclosure controls and procedures (as defined in
Exchange Act Rules 13a-15 and 15d-15) for the Company and designed such disclosure controls and procedures to ensure that material
information relating to the Company is made known to the certifying officers by others within the Company, 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 disclosure controls and
procedures as of a date within 90 days prior to the filing date of the most recently filed Form 10-K (such date, the “Evaluation
Date”). The Company presented in its most recently filed Form 10-K the conclusions of the certifying officers about the
effectiveness of the disclosure controls and procedures based on their evaluations as of the Evaluation Date. Since the Evaluation
Date, there have been no significant changes in the Company’s internal control over financial reporting (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 control over financial reporting.


 


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


 


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


 


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


 


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


 



    	 	13	 



     

    




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


 


(ii)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.


 


(jj)Underwriter
Agreements. Except for any arrangements with MLV or Noble Life Science Partners, the Company is not a party to any agreement with
an agent or underwriter for any other “at the market” or continuous equity transaction.


 


(kk)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.


 


(ll)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.


 



    	 	14	 



     

    




(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 believe are
adequate for the conduct of its properties 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, on the one hand, and the directors, officers and stockholders of the Company,
on the other hand, that is required by the Securities Act to be described in the Registration Statement and the Prospectus that
is not so described; (iii) no relationship, direct or indirect, exists between or among the Company or any affiliate, on the
one hand, and the directors, officers, stockholders or directors of the Company, on the other hand, that is required by the rules
of FINRA to be described in the Registration Statement and the Prospectus that is not so described; and (iv) except as described
in the Prospectus, there are no material outstanding loans or advances or material guarantees of indebtedness by the Company to
or for the benefit of any of its officers or directors or any of the members of the families of any of them.


 


(pp)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.


 


(qq)No Misstatement
or Omission. The Incorporated Documents and each Issuer Free Writing Prospectus as of the applicable Point of Sale, did not
or will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that
the Company makes no representation or warranty with respect to any statement contained in any Issuer Free Writing Prospectus in
reliance upon and in conformity with information concerning MLV and furnished by MLV to the Company expressly for use in the Issuer
Free Writing Prospectus.


 



    	 	15	 



     

    




(rr)Conformity
of Issuer Free Writing Prospectus. Each Issuer Free Writing Prospectus conformed or will conform in all material respects to
the requirements of the Securities Act on the date of first use, and the Company has complied or will comply with any filing requirements
applicable to such Issuer Free Writing Prospectus pursuant to the Securities Act. Each Issuer Free Writing Prospectus, as of its
issue date and at all subsequent times through the completion of the public offer and sale of the Placement Shares, did not, does
not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration
Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified.
The Company has not made any offer relating to the Placement Shares that would constitute an Issuer Free Writing Prospectus without
the prior written consent of MLV. The Company has retained in accordance with the Securities Act all Issuer Free Writing Prospectuses
that were not required to be filed pursuant to the Securities Act.


 


(ss)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, nor the compliance by the Company with the terms and provisions hereof 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.


 


(tt)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.


 


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


 



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(a)Registration
Statement Amendments. After the date of this Agreement and during any period in which a Prospectus relating to any Placement
Shares is required to be delivered by MLV under the Securities Act (including in circumstances where such requirement may be satisfied
pursuant to Rule 172 under the Securities Act), (i) the Company will notify MLV promptly of the time when any subsequent amendment
to the Registration Statement, other than documents incorporated by reference, has been filed with the Commission and/or has become
effective or any subsequent supplement to the Prospectus has been filed and of any request by the Commission for any amendment
or supplement to the Registration Statement or Prospectus or for additional information, (ii) the Company will prepare and
file with the Commission, promptly upon MLV’s request, any amendments or supplements to the Registration Statement or Prospectus
that, in MLV’s reasonable opinion, may be necessary or advisable in connection with the distribution of the Placement Shares
by MLV (provided, however, that the failure of MLV to make such request shall not relieve the Company of any obligation or liability
hereunder, or affect MLV’s right to rely on the representations and warranties made by the Company in this Agreement and
provided, further, that the only remedy MLV shall have with respect to the failure to make such filing shall be to cease making
sales under this Agreement until such amendment or supplement is filed); (iii) the Company will not file any amendment or
supplement to the Registration Statement or Prospectus relating to the Placement Shares or a security convertible into the Placement
Shares unless a copy thereof has been submitted to MLV within a reasonable period of time before the filing and MLV has not reasonably
objected thereto (provided, however, that the failure of MLV to make such objection shall not relieve the Company of any obligation
or liability hereunder, or affect MLV’s right to rely on the representations and warranties made by the Company in this Agreement
and provided, further, that the only remedy MLV shall have with respect to the failure by the Company to obtain such consent shall
be to cease making sales under this Agreement) and the Company will furnish to MLV at the time of filing thereof a copy of any
document that upon filing is deemed to be incorporated by reference into the Registration Statement or Prospectus, except for those
documents available via EDGAR; and (iv) the Company will cause each amendment or supplement to the Prospectus to be filed
with the Commission as required pursuant to the applicable paragraph of Rule 424(b) of the Securities Act or, in the case of any
document to be incorporated therein by reference, to be filed with the Commission as required pursuant to the Exchange Act, within
the time period prescribed (the determination to file or not file any amendment or supplement with the Commission under this Section
7(a), based on the Company’s reasonable opinion or reasonable objections, shall be made exclusively by the Company).


 


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


 



    	 	17	 



     

    




(c)Delivery of
Prospectus; Subsequent Changes. During any period in which a Prospectus relating to the Placement Shares is required to be
delivered by MLV under the Securities Act with respect to the offer and sale of the Placement Shares, (including in circumstances
where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Company will comply with all requirements
imposed upon it by the Securities Act, as from time to time in force, and to file on or before their respective due dates all reports
and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Sections
13(a), 13(c), 14, 15(d) or any other provision of or under the Exchange Act. If the Company has omitted any information from the
Registration Statement pursuant to Rule 430A under the 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 MLV promptly of all such filings.
If during such period any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances
then existing, not misleading, or if during such period it is necessary to amend or supplement the Registration Statement or Prospectus
to comply with the Securities Act, the Company will promptly notify MLV to suspend the offering of Placement Shares during such
period and the Company will promptly amend or supplement the Registration Statement or Prospectus (at the expense of the Company)
so as to correct such statement or omission or effect such compliance; provided, however, that the Company may delay any such amendment
or supplement, if in the judgment of the Company, it is in the best interests of the Company to do so.


 


(d)Listing of
Placement Shares. During any period in which the Prospectus relating to the Placement Shares is required to be delivered by
MLV under the Securities Act with respect to the offer and sale of the Placement Shares, the Company will use its reasonable best
efforts to cause the Placement Shares to be listed on the Exchange and to qualify the Placement Shares for sale under the securities
laws of such jurisdictions as MLV reasonably designates and to continue such qualifications in effect so long as required for the
distribution of the Placement Shares; provided, however, that the Company shall not be required in connection therewith to qualify
as a foreign corporation or dealer in securities or file a general consent to service of process in any jurisdiction.


 


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


 


(f)Earnings Statement.
The Company will make generally available to its security holders as soon as practicable, but in any event not later than 15 months
after the end of the Company’s current fiscal quarter, an earnings statement covering a 12-month period that satisfies the
provisions of Section 11(a) and Rule 158 of the Securities Act.


 



    	 	18	 



     

    




(g)Expenses.
The Company, whether or not the transactions contemplated hereunder are consummated or this Agreement is terminated, in accordance
with the provisions of Section 12 hereunder, will pay all expenses incident to the performance of its obligations hereunder, including,
but not limited to, expenses relating to (i) the preparation, printing and filing of the Registration Statement and each amendment
and supplement thereto, of each Prospectus and of each amendment and supplement thereto, (ii) the preparation, issuance and
delivery of the Placement Shares, (iii) the qualification of the Placement Shares under securities laws in accordance with
the provisions of Section 7(d) of this Agreement, including filing fees, (iv) the printing and delivery to MLV of copies of
the Prospectus and any amendments or supplements thereto, and of this Agreement, (v) the fees and expenses incurred in connection
with the listing or qualification of the Placement Shares for trading on the Exchange, (vi) filing fees and expenses, if any,
of the Commission and the FINRA Corporate Financing Department. MLV will pay all other expenses incident to the performance of
its obligations hereunder.


 


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


 


(i)Notice of Other
Sales. Except for sales of Common Stock under any other agreement or arrangement pursuant to which the Company proposes to
sell shares of its Common Stock in an “at the market offering” pursuant to Rule 415 of the Exchange Act, the Company
will use reasonable best efforts to inform MLV on a timely basis of any transaction to sell or otherwise dispose of any shares
of Common Stock (other than the Placement Shares offered pursuant to the provisions of this Agreement) or securities convertible
into or exchangeable for Common Stock, warrants or any rights to purchase or acquire, Common Stock during the period of any Placement
Notice.


 


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


 


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


 


(l)Required Filings
Relating to Placement of Placement Shares. The Company agrees that on such dates as the Securities Act shall require, the Company
will (i) file a prospectus supplement with the Commission under the applicable paragraph of Rule 424(b) under the Securities
Act (each and every filing under Rule 424(b), a “Filing Date”), which prospectus supplement will set forth,
within the relevant period, the maximum dollar amount of Placement Shares to be sold through MLV and the compensation payable by
the Company to MLV with respect to such Placement Shares, and (ii) deliver such number of copies of each such prospectus supplement
to each exchange or market on which such sales were effected as may be required by the rules or regulations of such exchange or
market.


 



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(m)Representation
Dates; Certificate. During the term of this Agreement, each time the Company (i) files the Prospectus relating to the
Placement Shares or amends or supplements the Registration Statement or the Prospectus relating to the Placement Shares (other
than a prospectus supplement filed in accordance with Section 7(l) of this Agreement) by means of a post-effective amendment, sticker,
or supplement but not by means of incorporation of document(s) by reference to the Registration Statement or the Prospectus relating
to the Placement Shares; (ii) files an annual report on Form 10-K under the Exchange Act; (iii) files its quarterly reports
on Form 10-Q under the Exchange Act; (iv) files a report on Form 8-K containing amended financial information (other than
an earnings release, to “furnish” information pursuant to Items 2.02 or 7.01 of Form 8-K or to provide disclosure pursuant
to Item 8.01 of Form 8-K relating to the reclassifications of certain properties as discontinued operations in accordance with
Statement of Financial Accounting Standards No. 144) under the Exchange Act or (v) files a Form 8-K under the Exchange Act
for any other purpose (other than to “furnish” information pursuant to Items 2.02 or 7.01 of revised Form 8-K) (each
date of filing of one or more of the documents referred to in clauses (i) through (v) shall be a “Representation Date”);
the Company shall furnish MLV (but in the case of clause (v) above only if MLV reasonably determines that the information contained
in such Form 8-K is material) with a certificate, in the form attached hereto as Exhibit 7(m). The requirement to provide a certificate
under this Section 7(m) shall be waived for any Representation Date occurring at a time at which no Placement Notice is pending,
which waiver shall continue until the earlier to occur of the date the Company delivers a Placement Notice hereunder (which for
such calendar quarter shall be considered a Representation Date) and the next occurring Representation Date; provided, however,
that such waiver shall not apply for any Representation Date on which the Company files its annual report on Form 10-K. Notwithstanding
the foregoing, if the Company subsequently decides to sell Placement Shares following a Representation Date when the Company relied
on such waiver and did not provide MLV with a certificate under this Section 7(m), then before the Company delivers the Placement
Notice or MLV sells any Placement Shares, the Company shall provide MLV with a certificate, in the form attached hereto as Exhibit
7(m), dated the date of the Placement Notice.


 


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


 


(o)Comfort Letter.
No later than twenty (20) Trading Days following the date the Company files its annual report on Form 10-K for the year ended April
30, 2015 and thereafter within twenty (20) Trading Days following each subsequent date the Company files an annual report on Form
10-K under the Exchange Act, during any period in which the Prospectus relating to the Placement Shares is required to be delivered
by MLV (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act) and with
respect to which the Company is obligated to deliver a certificate in the form attached hereto as Exhibit 7(m) for which no waiver
is applicable, the Company shall cause its independent accountants to furnish MLV letters (the “Comfort Letters”),
dated the date the Comfort Letter is delivered. The Comfort Letter from the Company's independent accountants shall be in a form
and substance satisfactory to MLV, (i) confirming that they are an independent public accounting firm within the meaning of
the Securities Act and the PCAOB, (ii) stating, as of such date, the conclusions and findings of such firm with respect to
the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters
in connection with registered public offerings (the first such letter, the “Initial Comfort Letter”) and (iii) updating
the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on
such date and modified as necessary to relate to the Registration Statement and the Prospectus, as amended and supplemented to
the date of such letter.


 



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(p)Market Activities.
The Company will not, directly or indirectly, (i) take any action designed to cause or result in, or that constitutes or might
reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Placement Shares or (ii) sell, bid for, or purchase the Placement Shares, or pay anyone any compensation
for soliciting purchases of the Placement Shares other than MLV.


 


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


 


(r)No Offer to
Sell. Other than an Issuer Free Writing Prospectus approved in advance by the Company and MLV in its capacity as principal
or agent hereunder, neither MLV nor the Company (including its agents and representatives, other than MLV in its capacity as such)
will make, use, prepare, authorize, approve or refer to any written communication (as defined in Rule 405 under the 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.


 


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


 



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


 


9.Conditions
to MLV’s Obligations. The obligations of MLV hereunder with respect to a Placement will be subject to the continuing
accuracy and completeness of the representations and warranties made by the Company herein, to the due performance by the Company
of its obligations hereunder, to the completion by MLV of a due diligence review satisfactory to MLV in its reasonable judgment,
and to the continuing satisfaction (or waiver by MLV in its sole discretion) of the following additional conditions:


 


(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, related Prospectus or documents so that, in the case of the Registration Statement,
it will not contain any materially untrue statement of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading and, that in the case of the Prospectus, it will not contain
any materially untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which they were made, not misleading.


 



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(c)No Misstatement
or Material Omission. MLV shall not have advised the Company that the Registration Statement or Prospectus, or any amendment
or supplement thereto, contains an untrue statement of fact that in MLV’s reasonable opinion is material, or omits to state
a fact that in MLV’s opinion is material and is required to be stated therein or is necessary to make the statements therein
not misleading.


 


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


 


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


 


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


 


(g)Representation
Certificate. MLV shall have received the certificate required to be delivered pursuant to Section 7(m) on or before the date
on which delivery of such certificate is required pursuant to Section 7(m).


 


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


 



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


 


(j)Securities
Act Filings Made. All filings with the Commission required by Rule 424 under the Securities Act to have been filed prior to
the issuance of any Placement Notice hereunder shall have been made within the applicable time period prescribed for such filing
by Rule 424.


 


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


 


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


 


10.Indemnification and Contribution.


 


(a)Company Indemnification.
The Company agrees to indemnify and hold harmless MLV, the directors, officers, partners, employees and agents of MLV and each
person, if any, who (i) controls MLV within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, or (ii) is controlled by or is under common control with MLV (a “MLV Affiliate”) from and against
any and all losses, claims, liabilities, expenses and damages (including, but not limited to, any and all reasonable investigative,
legal and other expenses incurred in connection with, and any and all amounts paid in settlement (in accordance with Section 10(c))
of, any action, suit or proceeding between any of the indemnified parties and any indemnifying parties or between any indemnified
party and any third party, or otherwise, or any claim asserted), as and when incurred, to which MLV, or any such person, may become
subject under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, liabilities, expenses or damages arise out of or are based, directly or indirectly, on (i) any
untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or the Prospectus or any
amendment or supplement to the Registration Statement or the Prospectus or in any Issuer Free Writing Prospectus or in any application
or other document executed by or on behalf of the Company or based on written information furnished by or on behalf of the Company
filed in any jurisdiction in order to qualify the Placement Shares under the securities laws thereof or filed with the Commission,
or (ii) the omission or alleged omission to state in any such document a material fact required to be stated in it or necessary
to make the statements in it not misleading; provided, however, that this indemnity agreement shall not apply to the extent that
such loss, claim, liability, expense or damage arises from the sale of the Placement Shares pursuant to this Agreement and is caused
directly or indirectly by an untrue statement or omission made in reliance on and in conformity with information relating to MLV.
This indemnity agreement will be in addition to any liability that the Company might otherwise have.


 



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(b)MLV Indemnification.
MLV agrees to indemnify and hold harmless the Company and its directors and each officer of the Company who signed the Registration
Statement, and each person, if any, who (i) controls the Company within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act or (ii) is controlled by or is under common control with the Company (a “Company Affiliate”)
against any and all loss, liability, claim, damage and expense described in the indemnity contained in Section 10(c), as incurred,
but only with respect to (i) MLV’s breach of Section 8 and/or (ii) untrue statements or omissions, or alleged untrue statements
or omissions, made in the Registration Statement (or any amendments thereto) or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with information relating to MLV and furnished to the Company by MLV.


 


(c)Procedure.
Any party that proposes to assert the right to be indemnified under this Section 10 will, promptly after receipt of notice of commencement
of any action against such party in respect of which a claim is to be made against an indemnifying party or parties under this
Section 10, notify each such indemnifying party of the commencement of such action, enclosing a copy of all papers served, but
the omission so to notify such indemnifying party will not relieve the indemnifying party from (i) any liability that it might
have to any indemnified party otherwise than under this Section 10 and (ii) any liability that it may have to any indemnified
party under the foregoing provision of this Section 10 unless, and only to the extent that, such omission results in the forfeiture
of substantive rights or defenses by the indemnifying party. If any such action is brought against any indemnified party and it
notifies the indemnifying party of its commencement, the indemnifying party will be entitled to participate in and, to the extent
that it elects by delivering written notice to the indemnified party promptly after receiving notice of the commencement of the
action from the indemnified party, jointly with any other indemnifying party similarly notified, to assume the defense of the action,
with counsel reasonably satisfactory to the indemnified party, and after notice from the indemnifying party to the indemnified
party of its election to assume the defense, the indemnifying party will not be liable to the indemnified party for any legal or
other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by the indemnified
party in connection with the defense. The indemnified party will have the right to employ its own counsel in any such action, but
the fees, expenses and other charges of such counsel will be at the expense of such indemnified party unless (1) the employment
of counsel by the indemnified party has been authorized in writing by the indemnifying party, (2) the indemnified party has
reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other indemnified parties
that are different from or in addition to those available to the indemnifying party, (3) a conflict or potential conflict
exists (based on advice of counsel to the indemnified party) between the indemnified party and the indemnifying party (in which
case the indemnifying party will not have the right to direct the defense of such action on behalf of the indemnified party) or
(4) the indemnifying party has not in fact employed counsel to assume the defense of such action within a reasonable time
after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges
of counsel will be at the expense of the indemnifying party or parties. It is understood that the indemnifying party or parties
shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm admitted to practice in such jurisdiction at any one time for all
such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the indemnifying party
promptly as they are incurred. An indemnifying party will not, in any event, be liable for any settlement of any action or claim
effected without its written consent. No indemnifying party shall, without the prior written consent of each indemnified party,
settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding relating
to the matters contemplated by this Section 10 (whether or not any indemnified party is a party thereto), unless such settlement,
compromise or consent includes an unconditional release of each indemnified party from all liability arising or that may arise
out of such claim, action or proceeding.


 



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


 



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11.Representations
and Agreements to Survive Delivery. The indemnity and contribution agreements contained in Section 10 of this Agreement and
all representations and warranties of the Company herein or in certificates delivered pursuant hereto shall survive, as of their
respective dates, regardless of (i) any investigation made by or on behalf of MLV, any controlling persons, or the Company
(or any of their respective officers, directors or controlling persons), (ii) delivery and acceptance of the Placement Shares
and payment therefor or (iii) any termination of this Agreement.


 


12.Termination.


 


(a)MLV shall have
the right by giving notice as hereinafter specified at any time to terminate this Agreement if (i) any Material Adverse Effect,
or any development that has actually occurred and that is reasonably expected to cause a Material Adverse Effect has occurred that,
in the reasonable judgment of MLV, may materially impair the ability of MLV to sell the Placement Shares hereunder, (ii) the
Company shall have failed, refused or been unable to perform any agreement on its part to be performed hereunder; provided, however,
in the case of any failure of the Company to deliver (or cause another person to deliver) any certification, opinion, or letter
required under Sections 7(m), 7(n), or 7(o), MLV’s right to terminate shall not arise unless such failure to deliver (or
cause to be delivered) continues for more than thirty days from the date such delivery was required; or (iii) any other condition
of MLV’s obligations hereunder is not fulfilled, or (iv), any suspension or limitation of trading in the Placement Shares
or in securities generally on the Exchange shall have occurred. Any such termination shall be without liability of any party to
any other party except that the provisions of Section 7(g) (Expenses), Section 10 (Indemnification and Contribution), Section 11
(Survival of Representations), Section 17 (Applicable Law; Consent to Jurisdiction) and Section 18 (Waiver of Jury Trial) hereof
shall remain in full force and effect notwithstanding such termination. If MLV elects to terminate this Agreement as provided in
this Section 12(a), MLV shall provide the required notice as specified in Section 13 (Notices).


 



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(b)The Company shall
have the right, by giving 3 days notice as hereinafter specified to terminate this Agreement in its sole discretion at any time
after the date of this Agreement. Any such termination shall be without liability of any party to any other party except that the
provisions of Section 7(g), Section 10, Section 11, Section 17 and Section 18 hereof shall remain in full force and effect notwithstanding
such termination.


 


(c)MLV shall have
the right, by giving 90 days’ notice as hereinafter specified to terminate this Agreement in its sole discretion at any time
after the date of this Agreement. Any such termination shall be without liability of any party to any other party except that the
provisions of Section 7(g), Section 10, Section 11, Section 17 and Section 18 hereof shall remain in full force and effect notwithstanding
such termination.


 


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


 


(e)This Agreement
shall remain in full force and effect unless terminated pursuant to Sections 12(a), (b), (c), or (d) above or otherwise by mutual
agreement of the parties; provided, however, that any such termination by mutual agreement shall in all cases be deemed to provide
that Section 7(g), Section 10, Section 11, Section 17 and Section 18 shall remain in full force and effect.


 


(f)Any termination
of this Agreement shall be effective on the date specified in such notice of termination; provided, however, that such termination
shall not be effective until the close of business on the date of receipt of such notice by MLV or the Company, as the case may
be. If such termination shall occur prior to the Settlement Date for any sale of Placement Shares, such Placement Shares shall
settle in accordance with the provisions of this Agreement.


 



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


 


MLV & Co. LLC

1301 Avenue of the Americas, 43rd Floor

New York, NY 10019

Attention: General Counsel

Facsimile: 212-317-1515






 


with a copy to:


 


LeClairRyan,
A Professional Corporation

One Riverfront Plaza

1037 Raymond Boulevard, Sixteenth Floor

Newark, New Jersey 07102


Attention:
James Seery


Facsimile: 973-491-3415


 




and if to the Company, shall be delivered to:


 


Peregrine Pharmaceuticals,
Inc.

14282 Franklin Avenue


Tustin, California
92780-7017


Attention: General Counsel

Facsimile: 714-838-9433


 


with a copy to:


 


Michael A. Hedge


K&L Gates LLP


1 Park Plaza, Twelfth Floor


Irvine, California 92614


Facsimile:
949-253-0902


 


Each party to this
Agreement may change such address for notices by sending to the parties to this Agreement written notice of a new address for such
purpose. Each such notice or other communication shall be deemed given (i) when delivered personally or by verifiable facsimile
transmission (with an original to follow) on or before 4:30 p.m., New York City time, on a Business Day or, if such day is
not a Business Day, on the next succeeding Business Day, (ii) on the next Business Day after timely delivery to a nationally-recognized
overnight courier and (iii) on the Business Day actually received if deposited in the U.S. mail (certified or registered mail,
return receipt requested, postage prepaid). For purposes of this Agreement, “Business Day” shall mean any day
on which the Exchange and commercial banks in the City of New York are open for business.


 



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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 MLV and their respective successors
and the affiliates, controlling persons, officers and directors referred to in Section 10 hereof. References to any of the parties
contained in this Agreement shall be deemed to include the successors and permitted assigns of such party. Nothing in this Agreement,
express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and permitted
assigns any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided in
this Agreement. Neither party may assign its rights or obligations under this Agreement without the prior written consent of the
other party; provided, however, that MLV may assign its rights and obligations hereunder to an affiliate of MLV without obtaining
the Company’s consent.


 


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


 


16.Entire Agreement;
Amendment; Severability. This Agreement (including all schedules and exhibits attached hereto and Placement Notices issued
pursuant hereto) constitutes the entire agreement and supersedes all other prior and contemporaneous agreements and undertakings,
both written and oral, among the parties hereto with regard to the subject matter hereof. Neither this Agreement nor any term hereof
may be amended except pursuant to a written instrument executed by the Company and MLV. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable as written
by a court of competent jurisdiction, then such provision shall be given full force and effect to the fullest possible extent that
it is valid, legal and enforceable, and the remainder of the terms and provisions herein shall be construed as if such invalid,
illegal or unenforceable term or provision was not contained herein, but only to the extent that giving effect to such provision
and the remainder of the terms and provisions hereof shall be in accordance with the intent of the parties as reflected in this
Agreement.


 


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


 



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


 


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


 


[Remainder of Page Intentionally Blank]


 


 


 


 


 


 


 


 


 


 




    	 	31	 



     

    


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


 


 





 


	 	Very truly yours,
	 	 
	 	 
	 	 
	 	PEREGRINE PHARMACEUTICALS, INC.
	 	 
	 	 
	 	By: /s/ Paul J. Lytle
	 	Name: Paul J. Lytle
	 	Title:   Chief Financial Officer


 


 


ACCEPTED as of the date first-above written:


	MLV & CO. LLC
	
         

         

         

	By:	/s/ Patrice McNicoll
	Name:	Patrice McNicoll
	Title:	Chief Executive Officer


 







 


 




    	 	 	 



     

    



SCHEDULE 1


 


 


 


__________________________


 


FORM OF PLACEMENT NOTICE


 


__________________________


 


 


 





	From:	Peregrine Pharmaceuticals, Inc.
	 	 
	To:	MLV & Co. LLC
	 	Attention:  Patrice McNicoll
	 	 
	Subject:	At Market Issuance Sales Agreement--Placement Notice







 


Gentlemen:


 


Pursuant to the terms and subject to the conditions contained
in the At Market Issuance Sales Agreement between Peregrine Pharmaceuticals, Inc., a Delaware corporation (the “Company”),
and MLV & Co. LLC, a Delaware limited liability company (“MLV”), dated August 7, 2015, the Company hereby
requests that MLV sell up to ____________ shares of the Company’s common stock, par value $0.001 per share, at a minimum
market price of $_______ per share, during the time period beginning [month, day, time] and ending [month, day, time].


 




    	 	 	 



     

    



SCHEDULE 2


 


 


 


__________________________


 


Compensation


 


__________________________


 


 


 


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


 


 


 


 


 


 


 


 


 


 




    	 	 	 



     

    



 


 





SCHEDULE 3


 





	Company	 
	 	 
	Paul Lytle	plytle@peregrineinc.com
	 	 
	Steven King	sking@peregrineinc.com
	 	 
	MLV	 
	 	 
	Ryan Loforte	rloforte@mlvco.com
	 	 
	Patrice McNicoll	pmcnicoll@mlvco.com
	 	 
	Miranda Toledano	mtoledano@mlvco.com
	 	 
	With a copy to mlvatmdesk@mlvco.com







 


 


 




    	 	 	 



     

    



 


 





SCHEDULE 4


 


None.


 


 


 


 






    	 	 	 



     

    


EXHIBIT 7(m)


 


Form of Representation Date Certificate






 


This Officers Certificate
(this “Certificate”) is executed and delivered in connection with Section 7(m) of the At Market Issuance Sales
Agreement (the “Agreement”), dated August 7, 2015 and entered into between Peregrine Pharmaceuticals, Inc. (the
“Company”) and MLV & Co. LLC (“MLV”). All capitalized terms used but not defined herein
shall have the meanings given to such terms in the Agreement


 


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


 


1.As of the date
of this Certificate, (i) the Registration Statement does not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the statements therein not misleading and (ii) the Prospectus
does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (iii) no
event has occurred as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein
not untrue or misleading.


 


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


 


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


 


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


 


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


 



    	 	 	 



     

    





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


 


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


 


	
         

         

	
         

        Name: ________________________________

         

	
         

        Title: ________________________________