Exhibit 10.1


 


AMYRIS, INC.


 


Common Stock

(par value $0.0001 per share)


 


At Market Issuance Sales Agreement


 


March 8, 2016


 


FBR Capital Markets & Co. 


300 North 17th Street 


Suite 1400 


North Arlington, Virginia 22209


 


MLV & Co. LLC 


1301 Avenue of the Americas 43rd Floor 


New York, New York 10019


 


Ladies and Gentlemen:


 


Amyris, Inc., a Delaware corporation (the “Company”),
confirms its agreement (this “Agreement”) with FBR Capital Markets & Co. (“FBR”) and
MLV & Co. LLC (“MLV”, each of FBR and MLV individually a “Distribution Agent” and collectively
the “Distribution Agents”) as follows:


 


                       
1.                    
Issuance and Sale of Shares. The Company agrees that, from time to time during


 


the term of this Agreement, on the terms and subject to the conditions
set forth herein, it may issue and sell through the Distribution Agents, shares (the “Placement Shares”)
of the Company’s common stock, par value $0.0001 per share (the “Common Stock”); provided however,
that in no event shall the Company issue or sell through the Distribution Agents such number of Placement Shares that (a) exceeds
the number of shares or dollar amount of Common Stock registered on the effective Registration Statement (as defined below) pursuant
to which the offering is being made, (b) exceeds the number of authorized but unissued shares of Common Stock, or (c) exceeds the
number of shares or dollar amount registered on the Prospectus Supplement (as defined below) (the lesser of (a), (b) or (c) 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 number of Placement Shares issued and sold under this
Agreement shall be the sole responsibility of the Company and that the Distribution Agents shall have no obligation in connection
with such compliance. The issuance and sale of Placement Shares through the Distribution Agents will be effected pursuant to the
Registration Statement (as defined below), although nothing in this Agreement shall be construed as requiring the Company to use
the Registration Statement to issue any Placement Shares.


 






     

     

    

The Company has filed, in accordance with the
provisions of the Securities Act of 1933, as amended, and the rules and regulations thereunder (the “Securities Act”),
with the Securities and Exchange Commission (the “Commission”), a registration statement on Form S-3 (File No. 333-203216),
including a base prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the
Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions
of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (the “Exchange Act”).
The Company has prepared a prospectus supplement to the base prospectus included as part of such registration statement specifically
relating to the Placement Shares (the “Prospectus Supplement”). The Company will furnish to the Distribution
Agents, for use by the Distribution Agents, 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 or deemed
to be a part of such registration statement pursuant to Rule 430B of the Securities Act, is herein called the “Registration
Statement.” The base prospectus, including all documents incorporated or deemed incorporated therein by reference to
the extent such information has not been superseded or modified in accordance with Rule 412 under the Securities Act (as qualified
by Rule 430B(g) of the Securities Act), included in the Registration Statement, as it may be supplemented by the Prospectus Supplement,
in the form in which such base prospectus and/or Prospectus Supplement have most recently been filed by the Company with the Commission
pursuant to Rule 424(b) under the Securities Act, is herein called the “Prospectus.” Any reference herein to
the Registration Statement, the Prospectus or any amendment or supplement thereto shall be deemed to refer to and include the documents
incorporated by reference therein, and any reference herein to the terms “amend,” “amendment” or “supplement”
with respect to the Registration Statement or the Prospectus shall be deemed to refer to and include the filing after the execution
hereof of any document with the Commission 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 a Distribution Agent (the “Designated Distribution Agent”) by email notice (or other method mutually
agreed to in writing by the parties) of the number of Placement Shares, the time period during which sales are requested to be
made, any limitation on the number of Placement Shares that may be sold in any one day and any minimum price below which sales
may not be made (a “Placement Notice”), the form of which is attached hereto as Schedule 1. The Placement
Notice shall originate from any of the individuals from the Company set forth on Schedule 3 (with a copy to each of the
other individuals from the Company listed on such schedule), and shall be addressed to each of the individuals from the Designated
Distribution Agent set forth on Schedule 3, as such Schedule 3 may be amended from time to time. The Placement Notice
shall be effective immediately upon receipt by the Designated Distribution Agent unless and until (i) the Designated Distribution
Agent declines to accept the terms contained therein for any reason, in its sole discretion, and notifies the Company thereof in
writing, (ii) the entire amount of the Placement Shares thereunder has been sold, (iii) the Company suspends or terminates the
Placement Notice or (iv) this Agreement has been terminated under the provisions of Section 13. The amount of any discount,
commission or other compensation to be paid by the Company to the Designated Distribution Agent in connection with the sale of
the Placement Shares shall be calculated in accordance with the terms set forth in Schedule 2. It is expressly acknowledged
and agreed that neither the Company nor the Distribution Agents will have any obligation whatsoever with respect to a Placement
or any Placement Shares unless and until the Company delivers a Placement Notice to the Designated Distribution Agent and the Designated
Distribution Agent does not decline such Placement Notice pursuant to the terms set forth above, and then only upon the terms specified
therein and herein. In the event of a conflict between the terms of Sections 2 or 3 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 the Designated Distribution Agent. Subject to the terms and conditions of this Agreement,
for the period specified in a Placement Notice, the Designated Distribution Agent will use its commercially reasonable efforts
consistent with its normal trading and sales practices and applicable state and federal laws, rules and regulations and the rules
of The NASDAQ Stock Market (the relevant NASDAQ market on which the Placement Shares are then traded, the “Exchange”),
to sell the Placement Shares up to the amount specified in, and otherwise in accordance with the terms of, such Placement Notice.
The Designated Distribution Agent 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 the Designated Distribution Agent pursuant
to Section 2 with respect to such sales, and the Net Proceeds (as defined below) payable to the Company, with an itemization
of the deductions made by the Designated Distribution Agent (as set forth in Section 5(b)) from the gross proceeds that
it receives from such sales. Subject to the terms of a Placement Notice, the Designated Distribution Agent may sell Placement Shares
by any method permitted by law deemed to be an “at the market offering” as defined in Rule 415 of the Securities Act,
including without limitation sales made directly on the Exchange, on any other existing trading market for the Common Stock or
to or through a market maker. Subject to the terms of a Placement Notice, the Designated Distribution Agent may also sell, with
the Company’s consent, Placement Shares by any other method permitted by law, including but not limited to negotiated transactions.
“Trading Day” means any day on which Common Stock is purchased and sold on the Exchange.


 


                       
4.                    
Suspension of Sales. The Company or the Designated Distribution Agent may, upon notice to the other party in writing
(including by email correspondence to each of the individuals of the other party set forth on Schedule 3, if receipt of
such correspondence is actually acknowledged by any of the individuals to whom the notice is sent, other than via auto-reply) or
by telephone (confirmed immediately by verifiable facsimile transmission or email correspondence to each of the individuals of
the other party set forth on Schedule 3), suspend any sale of Placement Shares (a “Suspension”); provided,
however, that such suspension shall not affect or impair any party’s obligations with respect to any Placement Shares
sold hereunder prior to the receipt of such notice. While a Suspension is in effect, any obligation under Sections 7(l),
7(m), and 7(n) with respect to the delivery of certificates, opinions, or comfort letters to the Distribution Agents,
shall be waived. Each of the parties agrees that no such notice under this Section 4 shall be effective against any other
party unless it is made to one of the individuals of such party named on Schedule 3 hereto, as such Schedule may be amended
from time to time.


 






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


 


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


 


b.                 
Settlement of Placement Shares. Unless otherwise specified in the applicable Placement Notice, settlement for sales
of Placement Shares will occur on the third (3rd) Trading Day (or such earlier day as is industry practice for regular-way trading)
following the date on which such sales are made (each, a “Settlement Date”). The amount of proceeds to be delivered
to the Company on a Settlement Date against receipt of the Placement Shares sold (the “Net Proceeds”) will be
equal to the aggregate sales price received by the Designated Distribution Agent, after deduction for (i) the Designated Distribution
Agent’s commission, discount or other compensation for such sales payable by the Company pursuant to Section 2 hereof,
and (ii) any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales.


 


c.                  
Delivery of Placement Shares. On or before each Settlement Date, the Company will, or will cause its transfer agent
to, electronically transfer the Placement Shares being sold by crediting the Designated Distribution Agent’s or its designee’s
account (provided the Designated Distribution Agent shall have given the Company written notice of such designee and such designee’s
account information at least one Trading Day prior to the Settlement Date) at The Depository Trust Company through its Deposit
and Withdrawal at Custodian System or by such other means of delivery as may be mutually agreed upon by the parties hereto which
in all cases shall be freely tradable, transferable, registered shares in good deliverable form. On each Settlement Date, the Designated
Distribution Agent will deliver the related Net Proceeds in same day funds to an account designated by the Company in writing on,
or prior to, the Settlement Date. The Company agrees that if the Company, or its transfer agent (if applicable), defaults in its
obligation to deliver Placement Shares on a Settlement Date through no fault of the Designated Distribution Agent, then in addition
to and in no way limiting the rights and obligations set forth in Section 11(a) hereto, it will (i) hold the Designated
Distribution Agent harmless against any loss, claim, damage, or reasonable and documented expense (including reasonable and documented
legal fees and expenses), as incurred, directly arising out of such default by the Company or its transfer agent (if applicable)
and (ii) pay to the Designated Distribution Agent (without duplication) any commission, discount, or other compensation to which
it would otherwise have been entitled absent such default.


 






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d.                 
 Limitations on Offering Size. Under no circumstances shall the Company cause or request the offer or sale of any
Placement Shares if, after giving effect to the sale of such Placement Shares, the aggregate number of Placement Shares sold pursuant
to this Agreement would exceed the lesser of (A) the Maximum Amount, (B) the amount available for offer and sale under the Registration
Statement and (C) the amount authorized from time to time to be issued and sold under this Agreement by the Company’s board
of directors, a duly authorized committee thereof or a duly authorized executive committee, and notified to the Designated Distribution
Agent 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 the Designated Distribution Agent
in writing.


 


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


 


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


 


a.                  
Registration Statement and Prospectus. The 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 will name MLV and FBR as the
agents in the section entitled “Plan of Distribution.” The Company has not received, and has no notice of, any order
of the Commission preventing or suspending the use of the Registration Statement, or threatening or instituting proceedings for
that purpose. The Registration Statement and the offer and sale of Placement Shares as contemplated hereby meet the requirements
of Rule 415 under the Securities Act and comply in all material respects with said Rule. Any statutes, regulations, contracts or
other documents that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to
the Registration Statement have been so described or filed, as applicable. Copies of the Registration Statement, the Prospectus,
and any such amendments or supplements and all documents incorporated by reference therein that were filed with the Commission
on or prior to the date of this Agreement have been delivered, or are available through EDGAR, to the Distribution Agents and their
counsel. The Company has not distributed and, prior to the later to occur of each Settlement Date and completion of the distribution
of the Placement Shares, will not distribute any offering material in connection with the offering or sale of the Placement Shares
other than the Registration Statement and the Prospectus and any Issuer Free Writing Prospectus (as defined below) to which the
Distribution Agents have consented. The Common Stock is currently quoted on the Exchange. The Company has not, in the 12 months
preceding the date hereof, received notice from the Exchange to the effect that the Company is not in compliance with the listing
or maintenance requirements of the Exchange. To the Company’s knowledge, it is in compliance with all such listing and maintenance
requirements.


 






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b.                 
No Misstatement or Omission. At each Settlement Date, the Registration Statement and the Prospectus, as of such date,
will conform in all material respects with the requirements of the Securities Act. The Registration Statement, when it became or
becomes effective, did not, and does 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 and supplement
thereto, on the date thereof and at each Applicable Time (defined below), did not or does 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 do 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
a Distribution Agent specifically for use in the preparation thereof.


 


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


 


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


 






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


 


f.                  
Organization. The Company and any subsidiary that is a significant subsidiary (as such term is defined in Rule 1-02
of Regulation S-X promulgated by the Commission) (each, a “Subsidiary”, collectively, the “Subsidiaries”),
are duly organized, validly existing and in good standing (to the extent that the concept of good standing exists in its jurisdiction
of incorporation) under the laws of their respective jurisdictions of organization. The Company and the Subsidiaries are duly licensed
or qualified as a foreign corporation for transaction of business and in good standing (to the extent that the concept of good
standing exists in its jurisdiction of incorporation) under the laws of each other jurisdiction in which their respective ownership
or lease of property or the conduct of their respective businesses requires such license or qualification, and have the corporate
power and authority necessary to own or hold their respective properties and to conduct their respective businesses as described
in the Registration Statement and the Prospectus, except where the failure to be so qualified or in good standing or have such
power or authority would not, individually or in the aggregate, have a material adverse effect on the assets, business, operations,
earnings, properties, condition (financial or otherwise), prospects, stockholders’ equity or results of operations of the
Company and the Subsidiaries taken as a whole, or prevent the consummation of the transactions contemplated hereby (a “Material
Adverse Effect”).


 






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g.                 
Subsidiaries. As of the date hereof, the Company’s only Subsidiaries are set forth on Schedule 6(g).
The Company owns directly or indirectly, all of the equity interests of the Subsidiaries free and clear of any lien, charge, security
interest, encumbrance, right of first refusal or other restriction, except for liens securing indebtedness that is reflected in
the financial statements of the Company included or incorporated by reference in the Registration Statement. All the equity interests
of the Subsidiaries are validly issued and are fully paid, nonassessable and free of preemptive and similar rights.


 


h.                 
No Violation or Default. Neither the Company nor any Subsidiary is (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 similar agreement or instrument to which the Company or any Subsidiary is a party
or by which the Company or any Subsidiary is bound or to which any of the property or assets of the Company or any Subsidiary is
subject; or (iii) in violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental
or regulatory authority, except, in the case of each of clauses (ii) and (iii) above, for any such violation or default that would
not, individually or in the aggregate, have a Material Adverse Effect. To the Company’s knowledge, no other party under any
material contract or other agreement to which it or any Subsidiary is a party is in default in any respect thereunder where such
default would have a Material Adverse Effect.


 


i.                   
No Material Adverse Effect. Since the date of the most recent financial statements of the Company included or incorporated
by reference in the Registration Statement and Prospectus, there has not been (i) any Material Adverse Effect, or any development
that would reasonably be expected to result in a Material Adverse Effect, (ii) any transaction which is material to the Company
and the Subsidiaries taken as a whole, (iii) any obligation or liability, direct or contingent (including any off-balance sheet
obligations), incurred by the Company or the Subsidiaries, which is material to the Company and the Subsidiaries taken as a whole,
(iv) any material change in the capital stock (other than (A) the grant of additional options or other awards under the Company’s
existing equity incentive plans, (B) changes in the number of outstanding Common Stock of the Company due to the issuance of shares
upon the exercise or conversion of securities exercisable for, or convertible into, Common Stock outstanding on the date hereof,
(C) the vesting of awards under the Company’s existing equity incentive plans outstanding on the date hereof, (D) as a result
of the issuance of Placement Shares, (E) any repurchases of capital stock of the Company, (F) as described in a proxy statement
filed on Schedule 14A or a Registration Statement on Form S-4, or (G) as otherwise publicly announced) or outstanding long-term
indebtedness of the Company or the Subsidiaries, or (v) any dividend or distribution of any kind declared, paid or made on the
capital stock of the Company or any Subsidiary, other than in each case above in the ordinary course of business or as otherwise
disclosed in the Registration Statement or Prospectus (including any Incorporated Documents).


 






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j.                   
Capitalization. The issued and outstanding shares of capital stock of the Company have been validly issued, are fully
paid and non-assessable and, other than as disclosed in the Registration Statement or the Prospectus, are not subject to any preemptive
rights, rights of first refusal or similar rights. The Company has an authorized, issued and outstanding capitalization as set
forth in the Registration Statement and the Prospectus as of the dates referred to therein (other than (i) the grant of additional
options or other awards under the Company’s existing equity incentive plans, (ii) changes in the number of outstanding Common
Stock of the Company due to the issuance of shares upon the exercise or conversion of securities exercisable for, or convertible
into, Common Stock outstanding on the date hereof, (iii) the vesting of awards under the Company’s existing equity incentive
plans outstanding on the date hereof, (iv) as a result of the issuance of Placement Shares, (v) any repurchases of capital stock
of the Company, or (v) as otherwise disclosed in the Registration Statement or Prospectus (including any Incorporated Documents))
and such authorized capital stock conforms to the description thereof set forth in the Registration Statement and the Prospectus.
The description of the Common Stock in the Registration Statement and the Prospectus is complete and accurate in all material respects.
As of the date referred to therein, the Company did not have outstanding any options to purchase, or any rights or warrants to
subscribe for, or any securities or obligations convertible into, or exchangeable for, or any contracts or commitments to issue
or sell, any shares of capital stock or other securities.


 


k.                 
Authorization; Enforceability. The Company has full legal right, power and authority to enter into this Agreement
and perform the transactions contemplated hereby. This Agreement has been duly authorized, executed and delivered by the Company
and is a legal, valid and binding agreement of the Company enforceable against the Company 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 11 hereof may be limited by federal or state securities laws and public policy considerations in respect thereof.


 


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


 


m.               
No Consents Required. No consent, approval, authorization, order, registration or qualification of or with any court
or arbitrator or any governmental or regulatory authority is required for the execution, delivery and performance by the Company
of this Agreement, and the issuance and sale by the Company of the Placement Shares as contemplated hereby, except for such consents,
approvals, authorizations, orders and registrations or qualifications (i) 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, including
any notices that may be required by the Exchange, in connection with the sale of the Placement Shares by the Distribution Agents,
(ii) as may be required under the Securities Act and (iii) as have been previously obtained by the Company.


 






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n.                 
No Preferential Rights. (i) No person, as such term is defined in Rule 1-02 of Regulation S-X promulgated under the
Securities Act (each, a “Person”), has the right, contractual or otherwise, to cause the Company to issue or
sell to such Person any Common Stock or shares of any other capital stock or other securities of the Company (other than upon the
exercise of options or warrants to purchase Common Stock, upon the conversion of securities convertible into Common Stock as disclosed
in the Registration Statement or upon the exercise or vesting of options or other awards that may be outstanding or granted from
time to time under the Company’s equity incentive plans), (ii) except as disclosed in the Registration Statement with respect
to price-based anti-dilution provisions in outstanding convertible promissory notes and warrants of the Company, no Person has
any preemptive rights, rights of first refusal, or any other rights (whether pursuant to a “poison pill” provision
or otherwise) to purchase any Common Stock or shares of any other capital stock or other securities of the Company from the Company
which have not been duly waived with respect to the offering contemplated hereby, (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 Common Stock, and (iv) no Person has the
right, contractual or otherwise, to require the Company to register under the Securities Act any Common Stock or shares of any
other capital stock or other securities of the Company, or to include any such shares or other securities in the Registration Statement
or the offering contemplated thereby, whether as a result of the filing or effectiveness of the Registration Statement or the sale
of the Placement Shares as contemplated thereby or otherwise, except in each case for such rights as have been waived on or prior
to the date hereof.


 


o.                 
Independent Public Accountant. PricewaterhouseCoopers LLP (the “Accountant”), 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, the Accountant is not in violation of the auditor independence
requirements of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”) with respect to the Company.


 


p.                 
Enforceability of Agreements. All agreements between the Company and third parties expressly referenced in the Prospectus,
other than such agreements that have expired by their terms or whose termination is disclosed in documents filed by the Company
on EDGAR, are legal, valid and binding obligations of the Company and, to the Company’s knowledge, 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 by 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 have a Material Adverse Effect.


 






    	10



     

    

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


 


r.                   
Licenses and Permits. The Company and the Subsidiaries possess or 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 their
respective properties or the conduct of their respective businesses as described in the Registration Statement and the Prospectus
(the “Permits”), except where the failure to possess, obtain or make the same would not, individually or in
the aggregate, have a Material Adverse Effect. Neither the Company nor any Subsidiary have received written notice of any proceeding
relating to revocation or modification of any such Permit or has any reason to believe that such Permit will not be renewed in
the ordinary course, except where the failure to obtain any such renewal would not, individually or in the aggregate, have a Material
Adverse Effect.


 


s.                  
No Material Defaults. Neither the Company nor any Subsidiary 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, would 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, would have a Material Adverse Effect.


 


t.                   
Certain Market Activities. Neither the Company, nor any Subsidiary, nor, to the knowledge of the Company, any of
their respective directors, officers or controlling persons has taken, directly or indirectly, any action designed, or that has
constituted or would 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.


 


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


 


v.                 
No Reliance. The Company has not relied upon either of the Distribution Agents or legal counsel for the Distribution
Agents for any legal, tax or accounting advice in connection with the offering and sale of the Placement Shares.


 






    	11



     

    

w.               
Taxes. The Company and the Subsidiaries have filed all federal, state, local and foreign tax returns which have been
required to be filed and paid or accrued 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 where the failure to do so would not have a Material Adverse Effect. Except
as otherwise disclosed in or contemplated by the Registration Statement or the Prospectus, no tax deficiency has been determined
adversely to the Company or any Subsidiary which has had, or would 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.


 


x.                 
Title to Real and Personal Property. The Company and the Subsidiaries have good and valid title to all of their respective
real properties and good and valid title to all personal property (excluding intellectual property, which is addressed below) described
in the Registration Statement or Prospectus as being owned by them that are material to the businesses of the Company or such Subsidiary,
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 and the Subsidiaries or (ii) would not, individually or in the
aggregate, have a Material Adverse Effect. Any real property described in the Registration Statement or Prospectus as being leased
by the Company and the Subsidiaries is held by them 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 the Subsidiaries or (B) would
not, individually or in the aggregate, have a Material Adverse Effect.


 


y.                 
Intellectual Property. The Company and the Subsidiaries own or possess adequate enforceable rights to use all patents,
patent applications, trademarks (both registered and unregistered), service marks, trade names, trademark registrations, service
mark registrations, copyrights, licenses and know-how (including trade secrets and other unpatented and/or unpatentable proprietary
or confidential information, systems or procedures) (collectively, the “Intellectual Property”), necessary for
the conduct of their respective businesses as conducted as of the date hereof, except to the extent that the failure to own or
possess adequate rights to use such Intellectual Property would not, individually or in the aggregate, have a Material Adverse
Effect; the Company and the Subsidiaries have not received any written notice of any claim of infringement or conflict with asserted
Intellectual Property rights of others, which infringement or conflict, if the subject of an unfavorable decision, would result
in a Material Adverse Effect; there are no pending, or to the Company’s knowledge, threatened judicial proceedings or interference
proceedings against the Company or its Subsidiaries challenging the Company’s or any of its Subsidiary’s rights in
or to or the validity of the scope of any of the Company’s or any Subsidiary’s patents, patent applications or proprietary
information; no other entity or individual has any right or claim in any patents, patent applications or any patent to be issued
therefrom that are owned or purported to be owned by the Company or any of its Subsidiaries by virtue of any contract, license
or other agreement entered into between such entity or individual and the Company or any Subsidiary or by any non-contractual obligation,
other than by written licenses granted by the Company or any Subsidiary, except as would not, individually or in the aggregate,
have a Material Adverse Effect; the Company and the Subsidiaries have not received any written notice of any claim challenging
the rights of the Company or its Subsidiaries in or to any Intellectual Property owned, licensed or optioned by the Company or
any Subsidiary which claim, if the subject of an unfavorable decision would result in a Material Adverse Effect.


 






    	12



     

    

z.                  
Environmental Laws. The Company and the Subsidiaries (i) are 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) have received and are 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) have
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, have a Material Adverse Effect.


 


aa.              
Disclosure Controls. The Company maintains a system of internal accounting controls designed to provide reasonable
assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions
are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability;
(iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the
recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken
with respect to any differences. The Company is not aware of any material weaknesses in its internal control over financial reporting
(other than as set forth in the Registration Statement or the Prospectus). Since the date of the latest audited financial statements
of the Company included in the Prospectus, there has been no change in the Company’s internal control over financial reporting
that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial
reporting (other than as set forth in the Registration Statement or the Prospectus). The Company has established disclosure controls
and procedures (as defined in Exchange Act Rules 13a-15 and 15d-15) that comply with the requirements of the Exchange Act. The
Company’s certifying officers have evaluated the effectiveness of the Company’s controls and procedures as of a date
within 90 days prior to the filing date of the Form 10-K for the fiscal year most recently ended (such date, the “Evaluation
Date”). The Company presented in its Form 10-K for the fiscal year most recently ended the conclusions of the certifying
officers about the effectiveness of the disclosure controls and procedures based on their evaluations as of the most recent Evaluation
Date, and the “disclosure controls and procedures” are effective.


 


bb.             
Sarbanes-Oxley Act. There is and has been no failure on the part of the Company or, to the knowledge of the Company,
any of the Company’s directors or officers, in their capacities as such, to comply in all material respects 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 during the past 12 months. For purposes of the preceding sentence, “principal executive officer”
and “principal financial officer” shall have the meanings given to such terms in the Exchange Act Rules 13a-15 and
15d-15.


 






    	13



     

    

cc.              
Finder’s Fees. Neither the Company nor any Subsidiary has 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 the Distribution Agents pursuant to this Agreement.


 


dd.            
Labor Disputes. No labor claim by or dispute with employees of the Company or any Subsidiary exists or, to the knowledge
of the Company, is threatened which would result in a Material Adverse Effect.


 


ee.              
Investment Company Act. Neither the Company nor any Subsidiary is or, after giving effect to the offering and sale
of the Placement Shares, will be required to register as 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”).


 


ff.               
Operations. The operations of the Company and the Subsidiaries 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 or the Subsidiaries are subject, the rules
and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any
governmental agency having jurisdiction over the Company (collectively, the “Money Laundering Laws”), except
where the failure to be in such compliance would not 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 or any Subsidiary with respect
to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.


 


gg.             
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 structured finance, special purpose or limited purpose entity (each, an “Off Balance Sheet Transaction”)
that would 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 Registration
Statement or the Prospectus which have not been described as required.


 


hh.             
Underwriter Agreements. The Company is not a party to any agreement with an agent or underwriter for any other “at-the-market”
or continuous equity transaction.


 






    	14



     

    

ii.                 
ERISA. To the knowledge of the Company, (i) 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 and the Subsidiaries
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”); (ii) 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 (iii) 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) equals
or exceeds the present value of all benefits accrued under such plan determined using reasonable actuarial assumptions, other than,
in the case of (i), (ii) and (iii) above, as would not have a Material Adverse Effect.


 


jj.                 
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”) has been made or reaffirmed in the Registration
Statement and the Prospectus without a reasonable basis or has been disclosed other than in good faith.


 


kk.             
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.


 


ll.                 
Insurance. The Company and the Subsidiaries carry, or are covered by, insurance in such amounts and covering such
risks as the Company and the Subsidiaries reasonably believe are adequate for the conduct of their business.


 


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


 






    	15



     

    

nn.             
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.


 


oo.             
No Misstatement or Omission in an Issuer Free Writing Prospectus. Each Issuer Free Writing Prospectus, as of its
issue date and as of each Applicable Time (as defined in Section 25 below), did not, does not and will not, through the
completion of the Placement or Placements for which such Issuer Free Writing Prospectus is issued, include any information that
conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including
any incorporated document deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not
apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information
furnished to the Company by the Distribution Agents specifically for use therein.


 


pp.             
No Conflicts. The execution of this Agreement does not, and the issuance, offering or sale of the Placement Shares,
or the consummation of any of the transactions contemplated herein and therein, or the compliance by the Company with the terms
and provisions hereof and thereof will not result in a breach of, any of the terms and provisions of, or constitutes or will constitute
a default under, 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, in each case except where such violation would not have a Material
Adverse Effect.


 


qq.             
OFAC.


 


                                
(i)         Neither the Company nor any Subsidiary
(collectively, the “Entity”) nor, to the Company’s knowledge, any director, officer, employee, agent,
affiliate or representative of the Entity, is a government, individual, or entity (in this paragraph (qq), “Person”)
that is, or is owned or controlled by a Person that is:


 






    	16



     

    

(a)      
currently the subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign
Assets Control (“OFAC”), the United Nations Security Council (“UNSC”), the European Union
(“EU”), Her Majesty’s Treasury (“HMT”), or other relevant sanctions authority (collectively,
“Sanctions”), nor


 


(b)     
located, organized or resident in a country or territory that is the subject of Sanctions.


 


                               
(ii)        The Entity will not, directly or indirectly,
knowingly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint
venture partner or other Person:


 


(a)      
to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time
of such funding or facilitation, is the subject of Sanctions; or


 


(b)     
in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the
offering, whether as underwriter, advisor, investor or otherwise).


 


                              
(iii)       The Entity represents and covenants that,
except as detailed in the Prospectus, for the past 5 years, it has not knowingly engaged in and is not now knowingly engaged in
any dealing or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is
or was the subject of Sanctions.


 


rr.                
Stock Transfer Taxes. On each Settlement Date, all material 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 by the Company in all material respects.


 


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


 


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


 






    	17



     

    

a.                  
Registration Statement Amendments. After the date of this Agreement and during any period in which a prospectus relating
to any Placement Shares is required to be delivered by the Distribution Agents under the Securities Act (including in circumstances
where such requirement may be satisfied pursuant to Rule 172 under the Securities Act) (the “Prospectus Delivery Period”)
(i) the Company will notify the Distribution Agents promptly of the time when any subsequent amendment to the Registration Statement,
other than documents incorporated by reference or amendments not related to any Placement, 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 related to the Placement or for additional information related
to the Placement, (ii) the Company will prepare and file with the Commission, promptly upon either of the Distribution Agents’
request, any amendments or supplements to the Registration Statement or Prospectus that, in either of the Distribution Agents’
reasonable opinion, may be necessary or advisable in connection with the distribution of the Placement Shares by a Distribution
Agent (provided, however, that the failure of the Distribution Agents to make such request shall not relieve the Company of any
obligation or liability hereunder, or affect the Distribution Agents’ right to rely on the representations and warranties
made by the Company in this Agreement and provided, further, that the only remedy the Distribution Agents shall have with respect
to the failure to make such filing shall be to cease making sales under this Agreement until such amendment or supplement is filed);
(iii) the Company will not file any amendment or supplement to the Registration Statement or Prospectus relating to the Placement
Shares or a security convertible into the Placement Shares (other than an Incorporated Document) unless a copy thereof has been
submitted to the Distribution Agents within a reasonable period of time before the filing and neither of the Distribution Agents
has reasonably objected thereto (provided, however, that (A) the failure of the Distribution Agents to make such objection shall
not relieve the Company of any obligation or liability hereunder, or affect the Distribution Agents’ right to rely on the
representations and warranties made by the Company in this Agreement and (B) the Company has no obligation to provide the Distribution
Agents any advance copy of such filing or to provide the Distribution Agents an opportunity to object to such filing if the filing
does not name the Distribution Agents or does not relate to the transaction herein provided; and provided, further, that the only
remedy the Distribution Agents 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 the Distribution Agents at the time of filing thereof a copy of any
document that upon filing is deemed to be incorporated by reference into the Registration Statement or Prospectus, except for those
documents available via EDGAR; and (iv) the Company will cause each amendment or supplement to the Prospectus to be filed with
the Commission as required pursuant to the applicable paragraph of Rule 424(b) of the Securities Act or, in the case of any document
to be incorporated therein by reference, to be filed with the Commission as required pursuant to the Exchange Act, within the time
period prescribed (the determination to file or not file any amendment or supplement with the Commission under this Section
7(a), based on the Company’s reasonable opinion or reasonable objections, shall be made exclusively by the Company).


 


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


 






    	18



     

    

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


 


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


 


e.                  
Delivery of Registration Statement and Prospectus. The Company will furnish to the Distribution Agents and their
counsel (at the reasonable expense of the Company) copies of the Registration Statement (including the Prospectus and Incorporated
Documents and all amendments and supplements to the Registration Statement or Prospectus and any Incorporated Documents that are
filed with the Commission during the Prospectus Delivery Period), in each case as soon as reasonably practicable and in such quantities
as either of the Distribution Agents may from time to time reasonably request and, at the Distribution Agents’ request, will
also furnish copies of the Prospectus to each exchange or market on which sales of the Placement Shares may be made; provided,
however, that the Company shall not be required to furnish any document (other than the Prospectus) to the Distribution Agents
to the extent such document is available on EDGAR.


 






    	19



     

    

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


 


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


 


h.                 
Notice of Other Sales. Without the prior written consent of the Distribution Agents, the Company will not, directly
or indirectly, offer to sell, sell, contract to sell, grant any option to sell or otherwise dispose of any Common Stock (other
than the Placement Shares offered pursuant to this Agreement) or securities convertible into or exchangeable for Common Stock,
warrants or any rights to purchase or acquire, Common Stock during the period beginning on the date on which any Placement Notice
is delivered to the Distribution Agents hereunder and ending on the third (3rd) Trading Day immediately following the final Settlement
Date with respect to Placement Shares sold pursuant to such Placement Notice (or, if the Placement Notice has been terminated or
suspended prior to the sale of all Placement Shares covered by a Placement Notice, the date of such suspension or termination);
and will not directly or indirectly in any other “at-the-market” or continuous equity transaction offer to sell, sell,
contract to sell, grant any option to sell or otherwise dispose of any Common Stock (other than the Placement Shares offered pursuant
to this Agreement) or securities convertible into or exchangeable for Common Stock, warrants or any rights to purchase or acquire,
Common Stock prior to the termination of this Agreement; provided, however, that such restrictions will not apply in connection
with the Company’s issuance or sale of (i) Common Stock, options to purchase Common Stock, other equity awards, or Common
Stock issuable upon the exercise of options or vesting of other equity awards, pursuant to any employee or director equity incentive
or benefits plan, stock ownership or purchase plan or dividend reinvestment plan (but not Common Stock subject to a waiver to exceed
plan limits in its dividend reinvestment plan) of the Company whether now in effect or hereafter implemented; (ii) Common Stock
issuable upon conversion of securities or the exercise of warrants, options or other rights in effect or outstanding, and disclosed
in filings by the Company available on EDGAR or otherwise in writing to the Distribution Agents; (iii) Common Stock, or securities
convertible into or exercisable for Common Stock, offered and sold in a privately negotiated transaction to vendors, customers,
strategic partners or potential strategic partners or other investors conducted in a manner so as not to be integrated with the
offering of Common Stock hereby; (iv) Common Stock in connection with any acquisition, strategic investment or other similar transaction
(including any joint venture, strategic alliance or partnership); and (v) Common Stock to cover withholding taxes payable upon
the vesting of equity awards under the Company’s equity incentive plans.


 


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


 


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


 






    	20



     

    

k.                 
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 date a filing under Rule 424(b) is made, a “Filing Date”), which
prospectus supplement will set forth, within the relevant period, the amount of Placement Shares sold through the Distribution
Agents, the Net Proceeds to the Company and the compensation payable by the Company to the Distribution Agents with respect to
such Placement Shares, and (ii) deliver such number of copies of each such prospectus supplement to each exchange or market on
which such sales were effected as may be required by the rules or regulations of such exchange or market.


 


l.                   
Representation Dates; Certificate. Each time during the term of this Agreement that the Company:


 


                                
(i)         amends or supplements (other than
a prospectus supplement relating solely to an offering of securities other than the Placement Shares) the Registration Statement
or the Prospectus relating to the Placement Shares by means of a post-effective amendment, sticker, or supplement but not by means
of incorporation of documents by reference into the Registration Statement or the Prospectus relating to the Placement Shares;


 


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


 


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


 


                              
(iv)       files a current report on Form 8-K containing
amended financial information (other than information “furnished” pursuant to Items 2.02 or 7.01 of Form 8-K or to
provide disclosure pursuant to Item 8.01 of Form 8-K relating to the reclassification of certain properties as discontinued operations
in accordance with Statement of Financial Accounting Standards No. 144) under the Exchange Act;


 


(Each date of filing of one or more of the documents
referred to in clauses (i) through (iv) shall be a “Representation Date.”)


 


the Company shall furnish the Distribution Agents (but
in the case of clause (iv) above only if either of the Distribution Agents reasonably determines that the information contained
in such Form 8-K is material) with a certificate, in the form attached hereto as Exhibit 7(l). The requirement to provide
a certificate under this Section 7(l) 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 on which
the Company files its annual report on Form 10-K. Notwithstanding the foregoing, (i) upon the delivery of the first Placement Notice
hereunder and (ii) if the Company subsequently decides to sell Placement Shares following a Representation Date when the Company
relied on such waiver and did not provide the Distribution Agents with a certificate under this Section 7(l), then before
either of the Distribution Agents sells any Placement Shares, the Company shall provide the Distribution Agents with a certificate,
in the form attached hereto as Exhibit 7(l), dated the date of the Placement Notice.


 






    	21



     

    

m.               
Legal Opinion. On or prior to the date of the first Placement Notice given hereunder the Company shall cause to be
furnished to the Distribution Agents written opinions and a negative assurance letter of Fenwick & West LLP (“Company
Counsel”), or other counsel reasonably satisfactory to the Distribution Agents, each in form and substance reasonably
satisfactory to the Distribution Agents. Thereafter, within five (5) Trading Days of each Representation Date with respect to which
the Company is obligated to deliver a certificate in the form attached hereto as Exhibit 7(l) for which no waiver is applicable,
and not more than once per calendar quarter, the Company shall cause to be furnished to the Distribution Agents a negative assurance
letter of Company Counsel in form and substance reasonably satisfactory to the Distribution Agents; provided that, in lieu of such
negative assurance for subsequent periodic filings under the Exchange Act, counsel may furnish the Distribution Agents with a letter
(a “Reliance Letter”) to the effect that the Distribution Agents may rely on the negative assurance letter previously
delivered under this Section 7(m) to the same extent as if it were dated the date of such letter (except that statements
in such prior letter shall be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented as of
the date of the Reliance Letter).


 


n.                 
Comfort Letter. On or prior to the date of the first Placement Notice given hereunder and within five (5) Trading
Days after each subsequent Representation Date, other than pursuant to Section 7(l)(iii), the Company shall cause the Accountant
to furnish the Distribution Agents letters (the “Comfort Letters”), dated the date the Comfort Letter is delivered,
which shall meet the requirements set forth in this Section 7(n). The Comfort Letters from the Accountant shall be in a
form and substance reasonably satisfactory to the Distribution Agents, (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.


 


o.                 
Market Activities. The Company will not, directly or indirectly, (i) take any action designed to cause or result
in, or that constitutes or would constitute, the stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of Common Stock or (ii) sell, bid for, or purchase Common Stock in violation of Regulation M, or pay anyone
any compensation for soliciting purchases of the Placement Shares other than the Distribution Agents.


 


p.                 
Investment Company Act. The Company will conduct its affairs in such a manner so as to reasonably ensure that neither
it nor the Subsidiaries will be or become, at any time prior to the termination of this Agreement, an “investment company,”
as such term is defined in the Investment Company Act.


 






    	22



     

    

q.                 
No Offer to Sell. Other than an Issuer Free Writing Prospectus approved in advance by the Company and the Distribution
Agents in their capacity as agents hereunder pursuant to Section 23, neither of the Distribution Agents nor the Company
(including its agents and representatives, other than the Distribution Agents in their capacity as such) will make, use, prepare,
authorize, approve or refer to any written communication (as defined in Rule 405), required to be filed with the Commission, that
constitutes an offer to sell or solicitation of an offer to buy Placement Shares hereunder.


 


r.                   
Sarbanes-Oxley Act. The Company will maintain and keep accurate books and records reflecting its assets and maintain
internal accounting controls in a manner designed to provide reasonable assurance regarding the reliability of financial reporting
and the preparation of financial statements for external purposes in accordance with GAAP and including those policies and procedures
that (i) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions
of the assets of the Company, (ii) provide reasonable assurance that transactions are recorded as necessary to permit the preparation
of the Company’s consolidated financial statements in accordance with GAAP, (iii) that receipts and expenditures of the Company
are being made only in accordance with management’s and the Company’s directors’ authorization, and (iv) provide
reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Company’s
assets that could have a material effect on its financial statements. The Company will maintain disclosure controls and procedures
that comply with the requirements of the Exchange Act.


 


                       
8.                     
Representations and Covenants of the Distribution Agents. Each of the Distribution Agents represents and warrants
that it is duly registered as a broker-dealer under FINRA, the Exchange Act and the applicable statutes and regulations of each
state in which the Placement Shares will be offered and sold, except such states in which such Distribution Agent is exempt from
registration or such registration is not otherwise required. Each of the Distribution Agents 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 it is exempt from registration or
such registration is not otherwise required, during the term of this Agreement. Each of the Distribution Agents shall comply with
all applicable law and regulations, including but not limited to Regulation M, in connection with the transactions contemplated
by this Agreement, including the issuance and sale through the Distribution Agents of the Placement Shares.


 


                       
9.                     
Payment of Expenses. The Company will pay all expenses incident to the performance of its obligations under this
Agreement, including (i) the preparation, filing, including any fees required by the Commission, and printing of the Registration
Statement (including financial statements and exhibits) as originally filed and of each amendment and supplement thereto and each
Free Writing Prospectus, in such number as the Distribution Agents shall deem reasonably necessary, (ii) the printing and delivery
to the Distribution Agents of this Agreement and such other documents as may be required in connection with the offering, purchase,
sale, issuance or delivery of the Placement Shares, (iii) the preparation, issuance and delivery of the certificates, if any, for
the Placement Shares to the Distribution Agents, including any stock or other transfer taxes and any capital duties, stamp duties
or other duties or taxes payable upon the sale, issuance or delivery of the Placement Shares to the Distribution Agents, (iv) the
fees and disbursements of the counsel, accountants and other advisors to the Company, (v) the reasonable and documented out-of-pocket
fees and disbursements of counsel to the Distribution Agents up to $25,000; (vi) the fees and expenses of the transfer agent and
registrar for the Common Stock, (vii) the filing fees incident to any review by FINRA of the terms of the sale of the Placement
Shares, and (viii) the fees and expenses incurred in connection with the listing of the Placement Shares on the Exchange.


 






    	23



     

    

                     
10.                  
Conditions to Distribution Agents’ Obligations. The obligations of the Distribution Agents hereunder with respect
to a Placement will be subject to the accuracy and completeness of the representations and warranties made by the Company herein
as of the date of this Agreement and as of each Applicable Time (other than those representations and warranties made as of a specified
date or time), to the due performance in all material respects by the Company of its obligations hereunder, to the completion by
the Distribution Agents of a due diligence review satisfactory to it in its reasonable judgment, and to the reasonable satisfaction
at or prior to each Applicable Time (or waiver by each of the Distribution Agents in their 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 receipt by the Company of notification
of 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 receipt by
the Company of notification of the initiation of, or a threat to initiate, 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 Incorporated
Document untrue in any material respect or that requires the making of any changes in the Registration Statement, the Prospectus
or any material Incorporated Document 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 or any material Incorporated Document, 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.


 






    	24



     

    

c.                  
No Misstatement or Material Omission. None of the Registration Statement or Prospectus, nor any amendment or supplement
thereto, shall contain an untrue statement of fact that in the Distribution Agents’ reasonable opinion is material, or omits
to state a fact that in the Distribution Agents’ reasonable 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 Effect, or any development that would 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 “nationally recognized statistical rating organization,” as such term is defined by the Commission for purposes
of Rule 436(g)(2) under the Securities Act (a “Rating Organization”), or a public announcement by any Rating
Organization that it has under surveillance or review its rating of any of the Company’s securities (other than asset backed
securities), the effect of which, in the case of any such action by a Rating Organization described above, in the reasonable judgment
of the Distribution Agents (without relieving the Company of any obligation or liability it may otherwise have), is so material
as to make it impracticable or inadvisable to proceed with the offering of the Placement Shares on the terms and in the manner
contemplated in the Prospectus.


 


e.                  
Legal Opinion. The Distribution Agents shall have received the opinion and negative assurance letter of Company Counsel
required to be delivered pursuant to Section 7(m) on or before the date on which such delivery of such opinion and
negative assurance letter are required pursuant to Section 7(m).


 


f.                  
Comfort Letter. The Distribution Agents shall have received the Comfort Letter required to be delivered pursuant
Section 7(n) on or before the date on which such delivery of such letter is required pursuant to Section 7(n).


 


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


 


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.


 


i.                   
Other Materials. On each date on which the Company is required to deliver a certificate pursuant to Section 7(l),
the Company shall have furnished to the Distribution Agents such appropriate further information, certificates and documents as
either of the Distribution Agents may reasonably request and which are usually and customarily furnished by an issuer of securities
in connection with a securities offering of the type contemplated hereby. All such opinions, certificates, letters and other documents
will be in compliance with the provisions hereof.


 


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.


 






    	25



     

    

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 the Distribution Agents to terminate
this Agreement pursuant to Section 13(a).


 


                     
11.                  
Indemnification and Contribution.


 


a. Company Indemnification. The Company agrees to indemnify and hold


 


harmless the Distribution Agents, their partners, members, directors,
officers, employees and agents and each person, if any, who controls the Distribution Agents within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act as follows:


 


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


 


(ii)          
against any and all loss, liability, claim, damage and expense whatsoever, as incurred, joint or several, to the extent
of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged
untrue statement or omission; provided that (subject to Section 11(d) below) any such settlement is effected with the written
consent of the Company, which consent shall not unreasonably be delayed or withheld; and


 


(iii)        
against any and all expense whatsoever, as incurred (including the reasonable and documented out-of-pocket fees and disbursements
of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission,
or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above,


 


provided, however, that this indemnity agreement shall not
apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged
untrue statement or omission made solely in reliance upon and in conformity with written information furnished to the Company by
either of the Distribution Agents expressly for use in the Registration Statement (or any amendment thereto), or in any related
Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto).


 






    	26



     

    

b.Indemnification by the Distribution Agents.
Each Distribution Agent agrees to indemnify and hold harmless the Company and its directors and each officer of the Company who
signed the Registration Statement, and each person, if any, who (i) controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act or (ii) is controlled by or is under common control with the Company against any
and all loss, liability, claim, damage and expense described in the indemnity contained in Section 11(a), as incurred, but
only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement
(or any amendments thereto) or in any related Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with information relating to a Distribution Agent and furnished to the Company in writing
by such Distribution Agent expressly for use therein.


 


c.Procedure. Any party that proposes to
assert the right to be indemnified under this Section 11 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 11,
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 11 and (ii) any liability that it may have to any indemnified party under the foregoing
provisions of this Section 11 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 of interest 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 and documented out-of-pocket 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
and documented out-of-pocket 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 reasonable and documented out-of-pocket fees,
disbursements and other charges will be reimbursed by the indemnifying party promptly after the indemnifying party receives a written
invoice relating to fees, disbursements and other charges in reasonable detail. An indemnifying party will not, in any event, be
liable for any settlement of any action or claim effected without its written consent. No indemnifying party shall, without the
prior written consent of each indemnified party, settle or compromise or consent to the entry of any judgment in any pending or
threatened claim, action or proceeding relating to the matters contemplated by this Section 11 (whether or not any indemnified
party is a party thereto), unless such settlement, compromise or consent (1) includes an unconditional release of each indemnified
party from all liability arising out of such litigation, investigation, proceeding or claim and (2) does not include a statement
as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.


 






    	27



     

    

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 11 is applicable in accordance with its terms but for any reason is held to be unavailable from the Company or a
Distribution Agent, the Company and such Distribution Agent will contribute to the total losses, claims, liabilities, expenses
and damages (including any investigative, legal and other expenses reasonably incurred in connection with, and any amount paid
in settlement of, any action, suit or proceeding or any claim asserted, but after deducting any contribution received by the Company
from persons other than the Distribution Agents, such as persons who control the Company within the meaning of the Securities Act
or the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Company, who also may be
liable for contribution) to which the Company and the Distribution Agents may be subject in such proportion as shall be appropriate
to reflect the relative benefits received by the Company on the one hand and the Distribution Agents on the other hand. The relative
benefits received by the Company on the one hand and the Distribution Agents on the other hand shall be deemed to be in the same
proportion as the total Net Proceeds from the sale of the Placement Shares (before deducting expenses) received by the Company
bear to the total compensation received by the Distribution Agents (before deducting expenses) from the sale of Placement Shares
on behalf of the Company. If, but only if, the allocation provided by the foregoing sentence is not permitted by applicable law,
the allocation of contribution shall be made in such proportion as is appropriate to reflect not only the relative benefits referred
to in the foregoing sentence but also the relative fault of the Company, on the one hand, and such Distribution Agent, on the other
hand, with respect to the statements or omission that resulted in such loss, claim, liability, expense or damage, or action in
respect thereof, as well as any other relevant equitable considerations with respect to such offering. Such relative fault shall
be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact relates to information supplied by the Company or such Distribution Agent, the intent
of the parties and their relative knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Company and each Distribution Agent agree that it would not be just and equitable if contributions pursuant to this Section
11(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 11(d) shall be deemed to
include, for the purpose of this Section 11(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 11(c) hereof.
Notwithstanding the foregoing provisions of this Section 11(d), a Distribution Agent shall not be required to contribute
any amount in excess of the commissions received by it under this Agreement and no person found guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) will be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. For purposes of this Section 11(d), any person who controls a party to this Agreement
within the meaning of the Securities Act or the Exchange Act, and any officers, directors, partners, employees or agents of a Distribution
Agent, will have the same rights to contribution as that party, and each officer who signed the Registration Statement and director
of the Company will have the same rights to contribution as the Company, subject in each case to the provisions hereof. Any party
entitled to contribution, promptly after receipt of notice of commencement of any action against such party in respect of which
a claim for contribution may be made under this Section 11(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 11(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 11(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 11(c) hereof.


 






    	28



     

    

                     
12.                  
Representations and Agreements to Survive Delivery. The indemnity and contribution agreements contained in Section
11 of this Agreement and all representations and warranties of the Company herein or in certificates delivered pursuant hereto
shall survive, as of their respective dates, regardless of (i) any investigation made by or on behalf of the Distribution Agents,
any controlling persons, or the Company (or any of their respective officers, directors or controlling persons), (ii) delivery
and acceptance of the Placement Shares and payment therefor or (iii) any termination of this Agreement.


 


                     
13.                  
Termination.


 


a.                  
A Distribution Agent may terminate this Agreement, by notice to the Company, as hereinafter specified at any time (1) if
there has been, since the time of execution of this Agreement or since the date as of which information is given in the Prospectus,
any Material Adverse Effect, or any development that would have a Material Adverse Effect that, in the sole judgment of such Distribution
Agent, is material and adverse and makes it impractical or inadvisable to market the Placement Shares or to enforce contracts for
the sale of the Placement Shares, (2) if there has occurred any material adverse change in the financial markets in the United
States or the international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis or
any change or development involving a prospective change in national or international political, financial or economic conditions,
in each case the effect of which is such as to make it, in the judgment of such Distribution Agent, impracticable or inadvisable
to market the Placement Shares or to enforce contracts for the sale of the Placement Shares, (3) if trading in the Common Stock
has been suspended or limited by the Commission or the Exchange, or if trading generally on the Exchange has been suspended or
limited, or minimum prices for trading have been fixed on the Exchange, (4) if any suspension of trading of any securities of the
Company on any exchange or in the over-the-counter market shall have occurred and be continuing, (5) if a major disruption of securities
settlements or clearance services in the United States shall have occurred and be continuing, or (6) if a banking moratorium has
been declared by either U.S. Federal or New York authorities. Any such termination shall be without liability of any party to any
other party except that the provisions of Section 9 (Payment of Expenses), Section 11 (Indemnification and Contribution),
Section 12 (Representations and Agreements to Survive Delivery), Section 18 (Governing Law and Time; Waiver of Jury
Trial) and Section 19 (Consent to Jurisdiction) hereof shall remain in full force and effect notwithstanding such termination.
If a Distribution Agent elects to terminate this Agreement as provided in this Section 13(a), such Distribution Agent shall
provide the required notice as specified in Section 14 (Notices).


 






    	29



     

    

b.                 
The Company shall have the right, by giving ten (10) days notice as hereinafter specified to terminate this Agreement in
its sole discretion at any time after the date of this Agreement. Any such termination shall be without liability of any party
to any other party except that the provisions of Section 9 (Payment of Expenses), Section 11 (Indemnification and
Contribution), Section 12 (Representations and Agreements to Survive Delivery), Section 18 (Governing Law and Time;
Waiver of Jury Trial) and Section 19 (Consent to Jurisdiction) hereof shall remain in full force and effect notwithstanding
such termination.


 


c.                  
Each of the Distribution Agents shall have the right, by giving ten (10) days notice as hereinafter specified to terminate
this Agreement in its sole discretion at any time after the date of this Agreement. Any such termination shall be without liability
of any party to any other party except that the provisions of Section 9 (Payment of Expenses), Section 11 (Indemnification
and Contribution), Section 12 (Representations and Agreements to Survive Delivery), Section 18 (Governing Law and
Time; Waiver of Jury Trial) and Section 19 (Consent to Jurisdiction) hereof shall remain in full force and effect notwithstanding
such termination.


 


d.                 
Unless earlier terminated pursuant to this Section 13, this Agreement shall automatically terminate upon the issuance
and sale of all of the Placement Shares through the Distribution Agents on the terms and subject to the conditions set forth herein
except that the provisions of Section 9 (Payment of Expenses), Section 11 (Indemnification and Contribution), Section
12 (Representations and Agreements to Survive Delivery), Section 18 (Governing Law and Time; Waiver of Jury Trial) and
Section 19 (Consent to Jurisdiction) 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 13(a), (b), (c),
or (d) above or otherwise by mutual agreement of the parties; provided, however, that unless otherwise expressly
agreed in writing, any such termination by mutual agreement shall in all cases be deemed to provide that Section 9 (Payment
of Expenses), Section 11 (Indemnification and Contribution), Section 12 (Representations and Agreements to Survive
Delivery), Section 18 (Governing Law and Time; Waiver of Jury Trial) and Section 19 (Consent to Jurisdiction) shall
remain in full force and effect. Upon termination of this Agreement, the Company shall not have any liability to a Distribution
Agent for any discount, commission or other compensation with respect to any Placement Shares not otherwise sold by a Distribution
Agent under this Agreement.


 






    	30



     

    

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


 


                     
14.                  
Notices. All notices or other communications required or permitted to be given by any party to any other party pursuant
to the terms of this Agreement shall be in writing, unless otherwise specified, and if sent to the Distribution Agents, shall be
delivered to:


 


FBR Capital Markets & Co. 


300 North 17th Street 


Suite 1400 


North Arlington, Virginia 22209 


Attention:Legal Department 


Telephone: (703) 312-9500


 


And


 


MLV & Co. LLC 


1301 Avenue of the Americas, 43rd Floor 


New York, New York 10019 


Attention:Legal Department 


Telephone: (703) 312-9500


 


with a copy to:


 


LeClairRyan, A Professional Corporation 


885 Third Avenue 


New York, NY 10022 


Attention: James T. Seery 


Telephone: (973) 491-3315 


Email: james.seery@leclairryan.com


 


and if to the Company, shall be delivered to:


 


Amyris, Inc. 


5885 Hollis Street 


Suite 100 


Emeryville, CA 94608 


Attention: General Counsel 


Telephone: (510) 450-0761 


 






    	31



     

    

with a copy to:


 


Fenwick & West LLP 


801 California Street 


Mountain View, CA 94041 


Attention: Dan Winnike 


Telephone: (650) 335-7657 


Email: dwinnike@fenwick.com


 


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


 


An electronic communication (“Electronic
Notice”) shall be deemed written notice for purposes of this Section 14 if sent to the electronic mail address
specified by the receiving party under separate cover. Electronic Notice shall be deemed received at the time the party sending
Electronic Notice receives confirmation of receipt by the receiving party. 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.


 


                     
15.                  
Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the Company and each Distribution
Agent and their respective successors and the affiliates, controlling persons, officers and directors referred to in Section
11 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.


 


                     
16.                  
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 share consolidation, stock split, stock dividend, corporate domestication
or similar event effected with respect to the Placement Shares.


 


                     
17.                  
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 each of the Distribution
Agents. 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.


 






    	32



     

    

                     
18.                  
GOVERNING LAW AND TIME; WAIVER OF JURY TRIAL. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS. SPECIFIED TIMES OF DAY REFER TO NEW YORK
CITY TIME. THE COMPANY AND THE DISTRIBUTION AGENTS EACH HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.


 


                     
19.                  
CONSENT TO JURISDICTION. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE STATE AND
FEDERAL COURTS SITTING IN THE CITY OF NEW YORK, BOROUGH OF MANHATTAN, FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION
WITH ANY TRANSACTION CONTEMPLATED HEREBY, AND HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUIT, ACTION OR PROCEEDING,
ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF ANY SUCH COURT, THAT SUCH SUIT, ACTION OR PROCEEDING IS BROUGHT
IN AN INCONVENIENT FORUM OR THAT THE VENUE OF SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER. EACH PARTY HEREBY IRREVOCABLY WAIVES
PERSONAL SERVICE OF PROCESS AND CONSENTS TO PROCESS BEING SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY THEREOF
(CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED) TO SUCH PARTY AT THE ADDRESS IN EFFECT FOR NOTICES TO IT UNDER THIS AGREEMENT
AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING CONTAINED HEREIN
SHALL BE DEEMED TO LIMIT IN ANY WAY ANY RIGHT TO SERVE PROCESS IN ANY MANNER PERMITTED BY LAW.


 


                     
20.                  
Use of Information. The Distribution Agents may not use any information gained in connection with this Agreement
and the transactions contemplated by this Agreement, including due diligence, to advise any party with respect to transactions
not expressly approved by the Company in writing.


 


                     
21.                  
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 or email of a .pdf attachment.


 






    	33



     

    

                     
22.                  
Effect of Headings. The section and Exhibit headings herein are for convenience only and shall not affect the construction
hereof.


 


                     
23.                  
Permitted Free Writing Prospectuses.


 


The Company represents, warrants
and agrees that, unless it obtains the prior consent of each of the Distribution Agents, and each of the Distribution Agents represents,
warrants and agrees that, unless it obtains the prior consent of the Company, it has not made and will not make any offer relating
to the Placement Shares that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free
writing prospectus,” as defined in Rule 405, required to be filed with the Commission. Any such free writing prospectus consented
to by the Distribution Agents or by the Company, as the case may be, is hereinafter referred to as a “Permitted Free Writing
Prospectus.” The Company represents and warrants that it has treated and agrees that it will treat each Permitted Free Writing
Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the
requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where
required, legending and record keeping. For the purposes of clarity, the parties hereto agree that all free writing prospectuses,
if any, listed in Exhibit 23 hereto are Permitted Free Writing Prospectuses.


 


                     
24.                  
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:


 


a.                  
Each Distribution Agent is acting solely as agent in connection with the public offering of the Placement Shares and in
connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary
or advisory relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors
or employees or any other party, on the one hand, and either Distribution Agent, on the other hand, has been or will be created
in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such Distribution Agent has
advised or is advising the Company on other matters, and neither Distribution Agent has any obligation to the Company with respect
to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;


 


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


 


c.                  
Neither Distribution Agent has provided any legal, accounting, regulatory or tax advice with respect to the transactions
contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has
deemed appropriate;


 


d.                 
it is aware that each Distribution Agent and its respective affiliates are engaged in a broad range of transactions which
may involve interests that differ from those of the Company and such Distribution Agent has no obligation to disclose such interests
and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; and


 






    	34



     

    

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


 


                     
25.                  
Definitions.


 


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


 


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


 


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


 


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


 


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


 


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


 






    	35



     

    

[Remainder of the page intentionally left blank]


 


 


 


 


 


 


 


 


 


 


 






    	36



     

    

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


 


Very truly yours,


 


AMYRIS, INC.


 


By: /s/ Raffi Asadorian


Name: Raffi Asadorian


Title: CFO


 


ACCEPTED as of the date first-above written:


 


FBR CAPITAL MARKETS & CO.


 


By: /s/ Patrice McNicoll


Name: Patrice McNicoll


Title: Co-Head of Capital Markets


 


MLV & CO. LLC


 


By: /s/ Patrice McNicoll


Name: Patrice McNicoll


Title: Chief Executive Officer


 






    	37



     

    

SCHEDULE 1


 


_____________________________________


 


FORM OF PLACEMENT NOTICE


_____________________________________


 


From: Amyris, Inc.


 


To: [FBR Capital Markets & Co.] [MLV & Co. LLC]


 


Attention: [•]


 


Subject:At Market Issuance--Placement Notice


 


Gentlemen:


 


Pursuant to the terms and subject
to the conditions contained in the At Market Issuance Sales Agreement between Amyris, Inc., a Delaware corporation (the “Company”),
and FBR Capital Markets & Co. (“FBR”) and MLV & Co. LLC (“MLV”, each of FBR and MLV
individually a “Distribution Agent” and collectively “Distribution Agents”), dated March
8, 2016, the Company hereby requests that [identify Designated Distribution Agent] sell up to [_______] shares of the Company’s
Common Stock, $0.0001 par value per share, at a minimum market price of $ per share, during the time period beginning [month,
day, time] and ending [month, day, time].


 






     

     

    

SCHEDULE 2


 


_____________________________________


 


Compensation


_____________________________________


 


The Company shall pay to the Designated Distribution Agent in cash, upon each sale of Placement Shares pursuant
to this Agreement, an amount equal to up to 3% of the gross proceeds from such sale of Placement Shares.


 






     

     

    

SCHEDULE 3


 


________________________


 


Notice Parties


________________________


 


The Company


 


Raffi Asadorian


 


Nicholas Khadder


 


FBR/MLV


 


Seth Appel


 


Matthew Feinberg


 


Ryan Loforte


 


Patrice McNicoll


 


Keith Pompliano


 






     

     

    

SCHEDULE 6(g)


 


________________________


 


Subsidiaries


________________________


 


Amyris Brasil Ltda.


 


 


 


 


 


 






     

     

    

EXHIBIT 7(l)



 


 


Form of Representation Date Certificate 


 


___________, 20___


 


This Representation Date Certificate (this “Certificate”)
is executed and delivered in connection with Section 7(l) of the At Market Issuance Sales Agreement (the “Agreement”),
dated March 8, 2016, and entered into between Amyris, Inc. (the “Company”) and FBR Capital Markets & Co.
and MLV & Co. LLC. All capitalized terms used but not defined herein shall have the meanings given to such terms in the Agreement.


 


The Company hereby certifies as follows:


 


1.                    
The representations and warranties of the Company in Section 6 of the Agreement (A) to the extent such
representations and warranties are subject to qualifications and exceptions contained therein relating to materiality or Material
Adverse Effect, are true and correct on and as of the date hereof with the same force and effect as if expressly made on and as
of the date hereof, except for those representations and warranties that speak solely as of a specific date and which were true
and correct as of such date, and (B) to the extent such representations and warranties are not subject to any qualifications
or exceptions, are true and correct in all material respects as of the date hereof as if made on and as of the date hereof with
the same force and effect as if expressly made on and as of the date hereof, except for those representations and warranties that
speak solely as of a specific date and which were true and correct as of such date.


 


2.                    
The Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied pursuant
to the Agreement at or prior to the date hereof.


 


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


 


AMYRIS, INC.


 


By:____________________________________


 


Name: ________________________________

Title:


 






     

     

    

EXHIBIT 23


 


Permitted Issuer Free Writing Prospectuses


 


None.