Exhibit 10.1


 


AT THE MARKET OFFERING AGREEMENT


 


June 3, 2021


 


H.C. Wainwright & Co., LLC


430 Park Avenue





New York, New York 10022


 


Ladies and Gentlemen:


 


CleanSpark, Inc., a corporation
organized under the laws of Nevada (the “Company”), confirms its agreement (this “Agreement”) with
H.C. Wainwright & Co., LLC (the “Manager”) as follows:


 


1.             Definitions.
The terms that follow, when used in this Agreement and any Terms Agreement, shall have the meanings indicated.


 


“Accountants” shall
have the meaning ascribed to such term in Section 4(m).


 


“Act”
shall mean the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.


 


“Action”
shall have the meaning ascribed to such term in Section 3(p).


 


“Affiliate”
shall have the meaning ascribed to such term in Section 3(o).


 


“Applicable
Time” shall mean, with respect to any Shares, the time of sale of such Shares pursuant to this Agreement or any relevant Terms
Agreement.


 


“Base Prospectus”
shall mean the base prospectus contained in the Registration Statement at the Execution Time.


 


“Board”
shall have the meaning ascribed to such term in Section 2(b)(iii).


 


“Broker
Fee” shall have the meaning ascribed to such term in Section 2(b)(v).


 


“Business
Day” shall mean any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized
or required by law to remain closed; provided, however, that, for purposes of clarity, commercial banks shall not be deemed to
be authorized or required by law to remain closed due to “stay at home,” “shelter-in-place,” “non-essential
employee” or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental
authority so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in The City of New York
generally are open for use by customers on such day.


 






     


     


    

 


“Commission”
shall mean the United States Securities and Exchange Commission.


 


“Common
Stock” shall have the meaning ascribed to such term in Section 2.


 


“Common
Stock Equivalents” shall have the meaning ascribed to such term in Section 3(g).


 


“Company
Counsel” shall have the meaning ascribed to such term in Section 4(l).


 


“DTC”
shall have the meaning ascribed to such term in Section 2(b)(vii).


 


“Effective
Date” shall mean each date and time that the Registration Statement and any post-effective amendment or amendments thereto became
or becomes effective.


 


“Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated
thereunder.


 


“Execution
Time” shall mean the date and time that this Agreement is executed and delivered by the parties hereto.


 


“Free Writing
Prospectus” shall mean a free writing prospectus, as defined in Rule 405.


 


“GAAP”
shall have the meaning ascribed to such term in Section 3(n).


 


“Incorporated
Documents” shall mean the documents or portions thereof filed with the Commission on or prior to the Effective Date that are
incorporated by reference in the Registration Statement or the Prospectus and any documents or portions thereof filed with the Commission
after the Effective Date that are deemed to be incorporated by reference in the Registration Statement or the Prospectus.


 


“Intellectual
Property Rights” shall have the meaning ascribed to such term in Section 3(v).


 


“Immaterial
Subsidiary” shall mean any Subsidiary that contributes less than 2.0% of the total consolidated revenue of the Company.


 






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“Issuer
Free Writing Prospectus” shall mean an issuer free writing prospectus, as defined in Rule 433.


 


“Losses”
shall have the meaning ascribed to such term in Section 7(d).


 


“Material
Adverse Effect” shall have the meaning ascribed to such term in Section 3(b).


 


“Material
Permits” shall have the meaning ascribed to such term in Section 3(t).


 


“Maximum
Amount” shall have the meaning ascribed to such term in Section 2.


 


“Net Proceeds”
shall have the meaning ascribed to such term in Section 2(b)(v).


 


“Permitted
Free Writing Prospectus” shall have the meaning ascribed to such term in Section 4(g).


 


“Placement”
shall have the meaning ascribed to such term in Section 2(c).


 


“Proceeding”
shall have the meaning ascribed to such term in Section 3(b).


 


“Prospectus”
shall mean the Base Prospectus, as supplemented by the most recently filed Prospectus Supplement (if any).


 


“Prospectus
Supplement” shall mean each prospectus supplement relating to the offering and sale of Shares hereunder prepared and filed pursuant
to Rule 424(b) from time to time, including the documents and information incorporated by reference therein, except to the extent
superseded or modified.


 


“Registration
Statement” shall mean the automatic shelf registration statement (File Number 333-254290) on Form S-3, including the
Incorporated Documents, exhibits and financial statements and any Prospectus Supplement deemed part of such registration statement pursuant
to Rule 430B, as amended on each Effective Date and, in the event any post-effective amendment thereto becomes effective, shall also
mean such registration statement as so amended.


 


“Representation
Date” shall have the meaning ascribed to such term in Section 4(k).


 


“Required
Approvals” shall have the meaning ascribed to such term in Section 3(e).


 


“Rule 158”,
 “Rule 164”, “Rule 172”, “Rule 173”, “Rule 405”,
 “Rule 415”, “Rule 424”, “Rule 430B” and “Rule 433”
refer to such rules under the Act.


 






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“Sales
Notice” shall have the meaning ascribed to such term in Section 2(b)(i).


 


“SEC Reports”
shall have the meaning ascribed to such term in Section 3(m).


 


“Settlement
Date” shall have the meaning ascribed to such term in Section 2(b)(vii).


 


“Subsidiary”
means any majority-owned subsidiary of the Company.


 


“Terms
Agreement” shall have the meaning ascribed to such term in Section 2(a).


 


“Time of
Delivery” shall have the meaning ascribed to such term in Section 2(c).


 


“Trading
Day” means a day on which the Trading Market is open for trading.


 


“Trading
Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date
in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New York Stock
Exchange (or any successors to any of the foregoing).


 


2.              Sale
and Delivery of Shares. The Company proposes to issue and sell through or to the Manager, as sales agent and/or principal, from time
to time during the term of this Agreement and on the terms set forth herein, up to the lesser of such number of shares (the “Shares”)
of the Company’s common stock, $0.001 par value per share (“Common Stock”), that does not exceed (a) $500,000,000
of shares of Common Stock registered on the Registration Statement, (b) the number of authorized but unissued shares of Common Stock
(less the number of shares of Common Stock issuable upon exercise, conversion or exchange of any outstanding securities of the Company
or otherwise reserved from the Company’s authorized capital stock), or (c) if applicable, the maximum number or dollar amount
of shares of Common Stock that can be sold without causing the Company or the offering of the Shares to fail to satisfy the eligibility
and transaction requirements for use of Form S-3, including General Instruction I.B.6 of Registration Statement on Form S-3
(the lesser of (a), (b) and (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 2 on the number and aggregate sales price
of Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Manager shall have no obligation
in connection with such compliance.


 






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(a)            Appointment
of Manager as Selling Agent; Terms Agreement. For purposes of selling the Shares through the Manager, the Company hereby appoints
the Manager as exclusive agent of the Company for the purpose of selling the Shares of the Company pursuant to this Agreement and the
Manager agrees to use its commercially reasonable efforts to sell the Shares on the terms and subject to the conditions stated herein.
The Company agrees that, whenever it determines to sell the Shares directly to the Manager as principal, it will enter into a separate
agreement (each, a “Terms Agreement”) in substantially the form of Annex I hereto, relating to such sale in
accordance with Section 2 of this Agreement.


 


(b)            Agent
Sales. Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company will
issue and agrees to sell Shares from time to time through the Manager, acting as sales agent, and the Manager agrees to use its commercially
reasonable efforts to sell, as sales agent for the Company, on the following terms:


 


(i)            The
Shares are to be sold on any day that (A) is a Trading Day, (B) the Company has instructed the Manager by telephone (confirmed
promptly by electronic mail) to make such sales (“Sales Notice”) and (C) the Company has satisfied its obligations
under Section 6 of this Agreement. The Company will designate the maximum amount of the Shares to be sold by the Manager on any day
(subject to the limitations set forth in Section 2(d)) and the minimum price per Share at which such Shares may be sold. Subject
to the terms and conditions hereof, the Manager shall use its commercially reasonable efforts to sell on a particular day all of the Shares
designated for the sale by the Company on such day. The gross sales price of the Shares sold under this Section 2(b) shall be
the market price for the shares of Common Stock sold by the Manager under this Section 2(b) on the Trading Market at the time
of sale of such Shares.


 


(ii)           The
Company acknowledges and agrees that (A) there can be no assurance that the Manager will be successful in selling the Shares, (B) the
Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell the Shares for any reason
other than a failure by the Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices
and applicable law and regulations to sell such Shares as required under this Agreement, and (C) the Manager shall be under no obligation
to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Manager and the Company
pursuant to a Terms Agreement.


 






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(iii)          The
Company shall not authorize the issuance and sale of, and the Manager shall not be obligated to use its commercially reasonable efforts
to sell, any Share at a price lower than the minimum price therefor designated from time to time by the Company’s Board of Directors
(the “Board”), or a duly authorized committee thereof, or such duly authorized officers of the Company, and notified
to the Manager in writing. The Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic
mail), suspend the offering of the Shares for any reason and at any time; provided, however, that such suspension or termination
shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of
such notice.


 


(iv)          The
Manager may sell Shares by any method permitted by law deemed to be an “at the market offering” as defined in Rule 415
under the Act, including, without limitation, sales made directly on the Trading Market, on any other existing trading market for the
Common Stock or to or through a market maker. The Manager may also sell Shares in privately negotiated transactions, provided that
the Manager receives the Company’s prior written approval for any sales in privately negotiated transactions and if so provided
in the “Plan of Distribution” section of the Prospectus Supplement or a supplement to the Prospectus Supplement or a new Prospectus
Supplement disclosing the terms of such privately negotiated transaction.


 


(v)           The
compensation to the Manager for sales of the Shares under this Section 2(b) shall be a placement fee of 3% of the gross sales
price of the Shares sold pursuant to this Section 2(b) (“Broker Fee”). The foregoing rate of compensation
shall not apply when the Manager acts as principal, in which case the Company may sell Shares to the Manager as principal at a price agreed
upon at the relevant Applicable Time pursuant to a Terms Agreement. The remaining proceeds, after deduction of the Broker Fee and deduction
of any transaction fees imposed by any clearing firm, execution broker, or governmental or self-regulatory organization in respect of
such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).


 


(vi)          The
Manager shall provide written confirmation (which may be by facsimile or electronic mail) to the Company following the close of trading
on the Trading Market each day in which the Shares are sold under this Section 2(b) setting forth the number of the Shares sold
on such day, the aggregate gross sales proceeds and the Net Proceeds to the Company, and the compensation payable by the Company to the
Manager with respect to such sales.


 


(vii)         Unless
otherwise agreed between the Company and the Manager, settlement for sales of the Shares will occur at 10:00 a.m. (New York City
time) on the second (2nd) Trading Day (or such earlier day as is industry practice for regular-way trading) following the date on which
such sales are made (each, a “Settlement Date”). On or before the Trading Day prior to each Settlement Date, the Company
will, or will cause its transfer agent to, electronically transfer the Shares being sold by crediting the Manager’s or its designee’s
account (provided that the Manager shall have given the Company written notice of such designee at least one Trading Day prior to the
Settlement Date) at The Depository Trust Company (“DTC”) through its Deposit/ Withdrawal at Custodian System or by
such other means of delivery as may be mutually agreed upon by the parties hereto which Shares in all cases shall be freely tradable,
registered shares in good deliverable form. On each Settlement Date, the Manager will deliver the related Net Proceeds in same day funds
to an account designated by the Company. The Company agrees that, if the Company or its transfer agent (if applicable) defaults in its
obligation to deliver duly authorized Shares on a Settlement Date, in addition to and in no way limiting the rights and obligations set
forth in Section 7 hereto, the Company will (i) hold the Manager harmless against any loss, claim, damage, or reasonable, documented
expense (including reasonable and documented legal fees and expenses), as incurred, arising out of or in connection with such default
by the Company, and (ii) pay to the Manager any commission, discount or other compensation to which the Manager would otherwise have
been entitled absent such default.


 






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(viii)        At
each Applicable Time, Settlement Date, and Representation Date, the Company shall be deemed to have affirmed each representation and warranty
contained in Section 3 of this Agreement as if such representation and warranty were made as of such date (except for any of such
representations and warranties that speak as of a specific date), modified as necessary to relate to the Registration Statement and the
Prospectus as amended as of such date. Any obligation of the Manager to use its commercially reasonable efforts to sell the Shares on
behalf of the Company shall be subject to the accuracy of the representations and warranties of the Company herein in accordance with
the foregoing, to the performance by the Company of its obligations hereunder and to the satisfaction of the additional conditions specified
in Section 6 of this Agreement.


 


(ix)           If
the Company shall declare or make any dividend or other distribution of its assets (or rights to acquire its assets) to holders of shares
of Common Stock, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities,
property or options by way of a dividend, spin off, reclassification, corporate rearrangement or other similar transaction) (a “Distribution”
and the record date for the determination of stockholders entitled to receive the Distribution, the “Record Date”),
the Company hereby covenants that, in connection with any sales of Shares pursuant to a Sales Notice on the Record Date, the Company shall
issue and deliver such Shares to the Manager on the Record Date and the Record Date shall be the Settlement Date and the Company shall
cover any additional costs of the Manager in connection with the delivery of Shares on the Record Date.


 






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(c)            Term
Sales. If the Company wishes to sell the Shares pursuant to this Agreement but other than as set forth in Section 2(b) of
this Agreement (each, a “Placement”), the Company will notify the Manager of the proposed terms of such Placement.
If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion)
or, following discussions with the Company wishes to accept amended terms, the Manager and the Company will enter into a Terms Agreement
setting forth the terms of such Placement. The terms set forth in a Terms Agreement will not be binding on the Company or the Manager
unless and until the Company and the Manager have each executed such Terms Agreement accepting all of the terms of such Terms Agreement.
In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will
control. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Manager. The commitment
of the Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations
and warranties of the Company herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement
shall specify the number of the Shares to be purchased by the Manager pursuant thereto, the price to be paid to the Company for such Shares,
any provisions relating to rights of, and default by, underwriters acting together with the Manager in the reoffering of the Shares, and
the time and date (each such time and date being referred to herein as a “Time of Delivery”) and place of delivery
of and payment for such Shares. Such Terms Agreement shall also specify any requirements for opinions of counsel, accountants’ letters
and officers’ certificates pursuant to Section 6 of this Agreement and any other information or documents required by the Manager.


 


(d)            Maximum
Number of Shares. Under no circumstances shall the Company cause or request the offer or sale of any Shares if, after giving effect
to the sale of such Shares, the aggregate amount of Shares sold pursuant to this Agreement would exceed the lesser of (A) together
with all sales of Shares under this Agreement, the Maximum Amount, (B) the amount available for offer and sale under the currently
effective Registration Statement and (C) the amount authorized from time to time to be issued and sold under this Agreement by the
Board, a duly authorized committee thereof or a duly authorized executive committee, and notified to the Manager in writing. Under no
circumstances shall the Company cause or request the offer or sale of any Shares pursuant to this Agreement at a price lower than the
minimum price authorized from time to time by the Board, a duly authorized committee thereof or a duly authorized executive officer, and
notified to the Manager in writing. Further, under no circumstances shall the Company cause or permit the aggregate offering amount of
Shares sold pursuant to this Agreement to exceed the Maximum Amount.


 






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(e)            Regulation
M Notice. Unless the exceptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are satisfied
with respect to the Shares, the Company shall give the Manager at least one Business Day’s prior notice of its intent to sell any
Shares in order to allow the Manager time to comply with Regulation M.


 


3.             Representations
and Warranties. The Company represents and warrants to, and agrees with, the Manager at the Execution Time and on each such time the
following representations and warranties are repeated or deemed to be made pursuant to this Agreement, as set forth below, except in each
case as disclosed in the Registration Statement, the Base Prospectus, any Prospectus Supplement or the Incorporated Documents:


 


(a)            Subsidiaries.
All of the direct and indirect Subsidiaries of the Company are set forth in the SEC Reports. The Company owns, directly or indirectly,
all of the capital stock or other equity interests of each Subsidiary free and clear of any “Liens” (which for purposes
of this Agreement shall mean a lien, charge, security interest, encumbrance, right of first refusal, preemptive right or other restriction),
and all of the issued and outstanding shares of capital stock of each Subsidiary are validly issued and are fully paid, non-assessable
and free of preemptive and similar rights to subscribe for or purchase securities.


 


(b)            Organization
and Qualification. The Company and each of the Subsidiaries is an entity duly incorporated or otherwise organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation or organization (other than any Immaterial Subsidiary), with
the requisite power and authority to own and use its properties and assets and to carry on its business as currently conducted. Neither
the Company nor any Subsidiary is in violation nor default of any of the provisions of its respective certificate or articles of incorporation,
bylaws or other organizational or charter documents. Each of the Company and the Subsidiaries is duly qualified to conduct business and
is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property
owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be, could
not have or reasonably be expected to result in: (i) a material adverse effect on the legality, validity or enforceability of this
Agreement, (ii) a material adverse effect on the results of operations, assets, business, prospects or condition (financial or otherwise)
of the Company and the Subsidiaries, taken as a whole or (iii) a material adverse effect on the Company’s ability to perform
in any material respect on a timely basis its obligations under this Agreement (any of (i), (ii) or (iii), a “Material Adverse
Effect”) and no “Proceeding” (which for purposes of this Agreement shall mean any action, claim, suit, investigation
or proceeding (including, without limitation, an informal investigation or partial proceeding, such as a deposition), whether commenced
or, to the Company’s knowledge, threatened) has been instituted in any such jurisdiction revoking, limiting or curtailing or seeking
to revoke, limit or curtail such power and authority or qualification.


 






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(c)            Authorization
and Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated
by this Agreement and otherwise to carry out its obligations hereunder. The execution and delivery of this Agreement by the Company and
the consummation by it of the transactions contemplated hereby have been duly authorized by all necessary action on the part of the Company
and no further action is required by the Company, the Board or the Company’s stockholders in connection herewith other than in connection
with the Required Approvals. This Agreement has been duly executed and delivered by the Company and constitutes the valid and binding
obligation of the Company enforceable against the Company in accordance with its terms, except (i) as limited by general equitable
principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement
of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief
or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law.


 


(d)            No
Conflicts. The execution, delivery and performance by the Company of this Agreement, the issuance and sale of the Shares and the consummation
by it of the transactions contemplated hereby do not and will not (i) conflict with or violate any provision of the Company’s
or any Subsidiary’s certificate or articles of incorporation, bylaws or other organizational or charter documents, or (ii) subject
to the Required Approvals, conflict with, or constitute a default (or an event that with notice or lapse of time or both would become
a default) under, result in the creation of any Lien upon any of the properties or assets of the Company or any Subsidiary, or give to
others any rights of termination, amendment, anti-dilution or similar adjustments, acceleration or cancellation (with or without notice,
lapse of time or both) of, any agreement, credit facility, debt or other instrument (evidencing a Company or Subsidiary debt or otherwise)
or other understanding to which the Company or any Subsidiary is a party or by which any property or asset of the Company or any Subsidiary
is bound or affected, or (iii) subject to the Required Approvals, conflict with or result in a violation of any law, rule, regulation,
order, judgment, injunction, decree or other restriction of any court or governmental authority to which the Company or a Subsidiary is
subject (including federal and state securities laws and regulations), or by which any property or asset of the Company or a Subsidiary
is bound or affected; except in the case of each of clauses (ii) and (iii), such as would not reasonably be expected to have or result
in a Material Adverse Effect. Notwithstanding the foregoing, an investor purportedly holding rights of first refusal in respect of financing
transactions has claimed, both in connection with this Agreement and prior marketed public offerings, that the respective notices given
to such investor in respect of this Agreement and the transactions contemplated hereby and such other prior offerings were deficient and
not valid and claimed that the Company failed to satisfy its obligations in respect of such rights of first refusal, and that such failure
constituted a breach of, and an “Event of Default” under, the agreements purportedly setting forth such rights of first refusal.


 






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(e)            Filings,
Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of, give any notice to,
or make any filing or registration with, any court or other federal, state, local or other governmental authority or other “Person”
(defined as an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind, including the Trading Market)
in connection with the execution, delivery and performance by the Company of this Agreement, other than (i) the filings contemplated
by this Agreement, (ii) the filing with the Commission of the Prospectus Supplement and any Current Reports on Form 8-K with
respect to this Agreement and the transactions contemplated hereby, (iii) the filing of application(s) with the Trading Market
with respect to the listing of the Shares for trading thereon in the time and manner required thereby, (iv) delivering a notice pursuant
to, and otherwise complying with the terms and conditions of, rights of first refusal purportedly held by an investor as described in
Section 3(d) above, and (v) such filings as are required to be made under applicable state securities laws and the rules and
regulations of the Financial Industry Regulatory Authority, Inc. (“FINRA”) (collectively, the “Required
Approvals”); provided that any filings required to be made with FINRA shall be the responsibility of the Manager other than
clearing the Base  Prospectus which shall be the responsibility of the Company.


 


(f)             Issuance
of Shares. The Shares are duly authorized and, when issued and paid for in accordance with this Agreement, will be duly and validly
issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company. The issuance by the Company of the Shares has
been registered under the Act and, upon issuance hereunder, all of the Shares will be freely tradable by the purchasers thereof under
federal and state securities laws without restriction (other than any restriction arising from an act, omission or status (e.g., as an
Affiliate of the Company) of any such purchaser). The Shares are being issued pursuant to the Registration Statement and the issuance
of the Shares has been registered by the Company under the Act. The “Plan of Distribution” section within the Registration
Statement permits the issuance and sale of the Shares as contemplated by this Agreement.


 






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(g)            Capitalization.
The capitalization of the Company at the date of the most recent balance sheet of the Company included in or incorporated by reference
into the SEC Reports is as set forth in the SEC Reports. The Company has not issued any capital stock since its most recently filed periodic
report under the Exchange Act, other than (i) pursuant to the exercise of employee stock options under the Company’s equity
incentive plans and (ii) the issuance of shares of Common Stock to employees pursuant to the Company’s employee stock purchase
plans and pursuant to the conversion and/or exercise of securities of the Company or any of the Subsidiaries which would entitle the
holder thereof to acquire at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant
or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof
to receive, Common Stock (“Common Stock Equivalents”), outstanding as of the date of the most recently filed periodic
report under the Exchange Act. Except as provided for in Section 3(d), no Person has any right of first refusal, preemptive right,
right of participation, or any similar right to participate in the transactions contemplated by this Agreement. Except as set forth in
the SEC Reports and other than securities issued pursuant to the Company’s equity incentive plans, there are no outstanding options,
warrants, scrip rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities, rights or obligations
convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire, any shares of Common
Stock, or contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound to issue
additional shares of Common Stock or Common Stock Equivalents. The issuance and sale of the Shares will not obligate the Company to issue
shares of Common Stock or other securities to any Person. All of the outstanding shares of capital stock of the Company are duly authorized,
validly issued, fully paid and nonassessable, have been issued in compliance with all federal and state securities laws, and none of
such outstanding shares was issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities. No
further approval or authorization of any stockholder or the Board is required for the issuance and sale of the Shares. There are no stockholders
agreements, voting agreements or other similar agreements with respect to the Company’s capital stock to which the Company is a
party or, to the knowledge of the Company, between or among any of the Company’s stockholders.


 


(h)            Registration
Statement. The Company meets the requirements for use of Form S-3 under the Act and has prepared and filed with the Commission
the Registration Statement, including a related Base Prospectus, for registration under the Act of the offering and sale of the Shares.
Such Registration Statement is effective and available for the offer and sale of the Shares as of the date hereof. As filed, the Base
Prospectus contains all information required to be included therein by the Act and the rules thereunder, and, except to the extent
the Manager shall agree in writing to a modification, shall be in all substantive respects in the form furnished to the Manager prior
to the Execution Time or prior to any such time this representation is repeated or deemed to be made. The Registration Statement, at the
Execution Time, each such time this representation is repeated or deemed to be made, and at all times during which a prospectus is required
by the Act to be delivered (whether physically or through compliance with Rule 172, 173 or any similar rule) in connection with any
offer or sale of the Shares, meets or will meet, as applicable, the requirements set forth in Rule 415(a)(1)(x). The initial Effective
Date of the Registration Statement was not earlier than the date three years before the Execution Time. The Company meets the transaction
requirements with respect to the aggregate market value of securities being sold pursuant to this offering and during the twelve (12)
months prior to this offering, as set forth in General Instruction I.B.6 of Form S-3, if applicable.


 






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(i)            Accuracy
of Incorporated Documents. The Incorporated Documents, when they were filed with the Commission, conformed in all material respects
to the requirements of the Exchange Act and the applicable rules and regulations thereunder, and none of the Incorporated Documents,
when they were filed with the Commission, contained any untrue statement of a material fact or omitted to state a material fact necessary
to make the statements therein, in light of the circumstances under which they were made not misleading; and any further documents so
filed and incorporated by reference in the Registration Statement, the Base Prospectus, the Prospectus Supplement or the Prospectus, when
such documents are filed with the Commission, will conform in all material respects to the requirements of the Exchange Act and the applicable
rules and regulations thereunder, as applicable, and will not contain any 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.


 


(j)             Ineligible
Issuer. (i) At the earliest time after the filing of the Registration Statement that the Company or another offering participant
made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Shares and (ii) as of the Execution Time and on each such
time this representation is repeated or deemed to be made (with such date being used as the determination date for purposes of this clause (ii)),
the Company was not and is not an Ineligible Issuer (as defined in Rule 405), without taking account of any determination by the
Commission pursuant to Rule 405 that it is not necessary that the Company be considered an Ineligible Issuer.


 


(k)            Free
Writing Prospectus. The Company is eligible to use Issuer Free Writing Prospectuses. Each Issuer Free Writing Prospectus does not
include any information the substance of which conflicts with the information contained in the Registration Statement, including any Incorporated
Documents and any prospectus supplement deemed to be a part thereof that has not been superseded or modified; and each Issuer Free Writing
Prospectus does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading. 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 Manager specifically for use therein. Any Issuer Free Writing Prospectus that the Company is required to file pursuant
to Rule 433(d) has been, or will be, filed with the Commission in accordance with the requirements of the Act and the rules thereunder.
Each Issuer Free Writing Prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) or that was
prepared by or behalf of or used by the Company complies or will comply in all material respects with the requirements of the Act and
the rules thereunder. The Company will not, without the prior consent of the Manager use or refer to any Issuer Free Writing Prospectus
in connection herewith.


 






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(l)             Proceedings
Related to Registration Statement. The Registration Statement is not the subject of a pending proceeding or examination under Section 8(d) or
8(e) of the Act, and the Company is not the subject of a pending proceeding under Section 8A of the Act in connection with the
offering of the Shares. The Company has not received any notice that the Commission has issued or intends to issue a stop-order with respect
to the Registration Statement or that the Commission otherwise has suspended or withdrawn the effectiveness of the Registration Statement,
either temporarily or permanently, or intends or has threatened in writing to do so.


 


(m)            SEC
Reports; Financial Statements. The Company has filed all reports, schedules, forms, statements and other documents required to be
filed by the Company under the Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the
twelve months preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such material)
(the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, together with the Prospectus
and the Prospectus Supplement, being collectively referred to herein as the “SEC Reports”) on a timely basis or has
received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As
of their respective dates, the SEC Reports complied in all material respects with the requirements of the Act and the Exchange Act, as
applicable, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading. The financial statements of the Company included in the SEC Reports complied in all material respects
with applicable accounting requirements and the rules and regulations of the Commission with respect thereto as in effect at the
time of filing. Such financial statements have been prepared in accordance with United States generally accepted accounting principles
applied on a consistent basis during the periods involved (“GAAP”), except as may be otherwise specified in such financial
statements or the notes thereto and except that unaudited financial statements may not contain all footnotes required by GAAP, and fairly
present in all material respects the financial position of the Company and its consolidated Subsidiaries as of and for the dates thereof
and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, year-end
audit adjustments. The agreements and documents described in the Registration Statement and the SEC Reports conform to the descriptions
thereof contained therein and there are no agreements or other documents required by the Act and the rules and regulations thereunder
to be described in the Registration Statement or the SEC Reports, or to be filed with the Commission as exhibits to the Registration Statement,
that have not been so described or filed. Each agreement or other instrument (however characterized or described) to which the Company
is a party or by which it is or may be bound or affected and (i) that is referred to in the Registration Statement or the SEC Reports,
or (ii) is material to the Company’s business, has been duly authorized and validly executed by the Company, is in full force
and effect in all material respects and is enforceable against the Company and, to the Company’s knowledge, the other parties thereto,
in accordance with its terms, except (x) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar
laws affecting creditors’ rights generally, (y) as enforceability of any indemnification or contribution provision may be limited
under the federal and state securities laws, and (z) that the remedy of specific performance and injunctive and other forms of equitable
relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefore may be brought.
None of such agreements or instruments has been assigned by the Company, and neither the Company nor, to the best of the Company’s
knowledge, any other party is in default thereunder and, to the best of the Company’s knowledge, no event has occurred that, with
the lapse of time or the giving of notice, or both, would constitute a default thereunder. To the best of the Company’s knowledge,
performance by the Company of the material provisions of such agreements or instruments will not result in a violation of any existing
applicable law, rule, regulation, judgment, order or decree of any governmental agency or court, domestic or foreign, having jurisdiction
over the Company or any of its assets or businesses, including, without limitation, those relating to environmental laws and regulations.


 






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(n)            [RESERVED]


 


(o)            Material
Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest audited financial statements included within
the SEC Reports, except as specifically disclosed in a subsequent SEC Report filed prior to the date this representation is made, (i) there
has been no event, occurrence or development that has had or that could reasonably be expected to result in a Material Adverse Effect,
(ii) the Company has not incurred any liabilities (contingent or otherwise) other than (A) fees, expenses and other liabilities
incurred in connection with the transactions contemplated hereby, (B) trade payables and accrued expenses incurred in the ordinary
course of business consistent with past practice and (C) liabilities not required to be reflected in the Company’s financial
statements pursuant to GAAP or disclosed in filings made with the Commission, (iii) the Company has not altered its method of accounting,
(iv) the Company has not declared or made any dividend or distribution of cash or other property to its stockholders or purchased,
redeemed or made any agreements to purchase or redeem any shares of its capital stock, (v) the Company has not issued any equity
securities to any officer, director or “Affiliate” (defined as any Person that, directly or indirectly through one
or more intermediaries, controls or is controlled by or is under common control with a Person, as such terms are used in and construed
under Rule 144 under the Act), except pursuant to existing Company equity incentive plans and (vi) no officer or director of
the Company has resigned from any position with the Company. Except for the issuance of the Shares contemplated by this Agreement, no
event, liability, fact, circumstance, occurrence or development has occurred or exists or is reasonably expected to occur or exist with
respect to the Company or its Subsidiaries or their respective businesses, prospects, properties, operations, assets or financial condition
that would be required to be disclosed by the Company under applicable securities laws at the time this representation is made or deemed
made that has not been publicly disclosed at least one Trading Day prior to the date that this representation is made. Unless otherwise
disclosed in an SEC Report filed prior to the date this representation is made, since the date of the latest audited financial statements
included within the SEC Reports the Company has not: (i) issued any debt securities or incurred any liability or obligation, direct
or contingent, for borrowed money, or (ii) declared or paid any dividend or made any other distribution on or in respect to its capital
stock.


 






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(p)            Litigation.
Except as set forth in the SEC Reports, there is no action, suit, inquiry, notice of violation, proceeding or investigation pending or,
to the knowledge of the Company, threatened against or affecting the Company, any Subsidiary or any of their respective properties before
or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign)
(collectively, an “Action”) which (i) adversely affects or challenges the legality, validity or enforceability
of this Agreement or the Shares or (ii) would reasonably be expected to result in a Material Adverse Effect. Except as set forth
in the SEC Reports, neither the Company nor any Subsidiary, nor any director or officer thereof in his or her capacity as such, is or
has been the subject of any Action involving a claim of violation of or liability under federal or state securities laws or a claim of
breach of fiduciary duty. There has not been, and to the knowledge of the Company, there is not pending or contemplated, any investigation
by the Commission involving the Company or any current or former director or officer of the Company in such director or officer’s
capacity as such. The Commission has not issued any stop order or other order suspending the effectiveness of any registration statement
filed by the Company or any Subsidiary under the Exchange Act or the Act.


 






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(q)            Labor
Relations. No labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the employees of the Company,
which could reasonably be expected to result in a Material Adverse Effect. None of the Company’s or its Subsidiaries’ employees
is a member of a union that relates to such employee’s relationship with the Company or such Subsidiary, and neither the Company
nor any of its Subsidiaries is a party to a collective bargaining agreement, and the Company and its Subsidiaries believe that their relationships
with their employees are good. To the knowledge of the Company, no executive officer of the Company or any Subsidiary, is, or is now expected
to be, in violation of any material term of any employment contract, confidentiality, disclosure or proprietary information agreement
or non-competition agreement, or any other contract or agreement or any restrictive covenant in favor of any third party, and the continued
employment of each such executive officer does not subject the Company or any of its Subsidiaries to any liability with respect to any
of the foregoing matters. The Company and its Subsidiaries are in compliance with all U.S. federal, state, local and foreign laws and
regulations relating to employment and employment practices, terms and conditions of employment and wages and hours, except where the
failure to be in compliance could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.


 


(r)             Compliance.
Except as set forth in the SEC Reports, neither the Company nor any Subsidiary: (i) is in default under or in violation of (and no
event has occurred that has not been waived that, with notice or lapse of time or both, would result in a default by the Company or any
Subsidiary under), nor has the Company or any Subsidiary received notice of a claim that it is in default under or that it is in violation
of, any indenture, loan or credit agreement or any other agreement or instrument to which it is a party or by which it or any of its properties
is bound (whether or not such default or violation has been waived), (ii) is in violation of any judgment, decree or order of any
court, arbitrator or other governmental authority or (iii) is or has been in violation of any statute, rule, ordinance or regulation
of any governmental authority, including, without limitation, all foreign, federal, state and local laws relating to taxes, environmental
protection, occupational health and safety, product quality and safety and employment and labor matters, except in each case as could
not have or reasonably be expected to result in a Material Adverse Effect.


 






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(s)            Environmental
Laws.  The Company and its Subsidiaries (i) are in compliance
with all federal, state, local and foreign laws relating to pollution or protection of human health or the environment (including ambient
air, surface water, groundwater, land surface or subsurface strata), including laws relating to emissions, discharges, releases or threatened
releases of chemicals, pollutants, contaminants, or toxic or hazardous substances or wastes (collectively, “Hazardous Materials”)
into the environment, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport
or handling of Hazardous Materials, as well as all authorizations, codes, decrees, demands, or demand letters, injunctions, judgments,
licenses, notices or notice letters, orders, permits, plans or regulations, issued, entered, promulgated or approved thereunder (“Environmental
Laws”); (ii) have received all permits licenses or other approvals required of them under applicable Environmental Laws
to conduct their respective businesses; and (iii) are in compliance with all terms and conditions of any such permit, license or
approval, except in the case of each of clauses (i), (ii) and (iii), where the failure to so comply or have received any such permit
or approval, as applicable, could not be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect.


 


(t)            Regulatory
Permits. The Company and the Subsidiaries possess all certificates, authorizations and permits issued by the appropriate federal,
state, local or foreign regulatory authorities necessary to conduct their respective businesses as described in the SEC Reports, except
where the failure to possess such permits could not reasonably be expected to result in a Material Adverse Effect (“Material
Permits”), and neither the Company nor any Subsidiary has received any notice of proceedings relating to the revocation or modification
of any Material Permit. The disclosures in the Registration Statement concerning the effects of Federal, State, local and all foreign
regulation on the Company’s business as currently contemplated are correct in all material respects.


 


(u)            Title
to Assets. Except as set forth in the SEC Reports, the Company and the Subsidiaries have good and marketable title in fee simple to,
or have valid and marketable rights to lease or otherwise use, all real property and all personal property that is material to the business
of the Company and the Subsidiaries, in each case free and clear of all Liens, except for (i) Liens as do not materially affect the
value of such property and do not materially interfere with the use made and proposed to be made of such property by the Company and the
Subsidiaries and (ii) Liens for the payment of federal, state or other taxes, for which appropriate reserves have been made in accordance
with GAAP and, the payment of which is neither delinquent nor subject to penalties. Any real property and facilities held under lease
by the Company and the Subsidiaries are held by them under valid, subsisting and enforceable leases with which the Company and the Subsidiaries
are in compliance.


 


(v)            Intellectual
Property. The Company and the Subsidiaries have, or have rights to use, all patents, patent applications, trademarks, trademark applications,
service marks, trade names, trade secrets, inventions, copyrights, licenses and other intellectual property rights and similar rights
necessary or required for use in connection with their respective businesses as described in the SEC Reports and which the failure to
do so could reasonably be expected to have a Material Adverse Effect (collectively, the “Intellectual Property Rights”).
None of, and neither the Company nor any Subsidiary has received a notice (written or otherwise) that any of, the Intellectual Property
Rights has expired, terminated or been abandoned, or is expected to expire or terminate or be abandoned, within two (2) years from
the date of this Agreement, except as would not reasonably be expected to have a Material Adverse Effect. Neither the Company nor any
Subsidiary has received, since the date of the latest audited financial statements included within the SEC Reports, a written notice of
a claim or otherwise has any knowledge that the Intellectual Property Rights violate or infringe upon the rights of any Person. To the
knowledge of the Company, all such Intellectual Property Rights are enforceable and there is no existing infringement by another Person
of any of the Intellectual Property Rights. The Company and its Subsidiaries have taken reasonable security measures to protect the secrecy,
confidentiality and value of all of their intellectual properties, except where failure to do so would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.


 






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(w)            Insurance.
The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such
amounts as are prudent and customary in the businesses in which the Company and the Subsidiaries are engaged, including, but not limited
to, directors and officers insurance coverage. Neither the Company nor any Subsidiary has any reason to believe that it will not be able
to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may
be necessary to continue its business.


 


(x)            Transactions
With Affiliates and Employees. Except as set forth in the SEC Reports, none of the officers or directors of the Company or any Subsidiary
and, to the knowledge of the Company, none of the employees of the Company or any Subsidiary is presently a party to any transaction with
the Company or any Subsidiary (other than for services as employees, officers and directors), including any contract, agreement or other
arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from, providing
for the borrowing of money from or lending of money to or otherwise requiring payments to or from, any officer, director or such employee
or, to the knowledge of the Company, any entity in which any officer, director, or any such employee has a substantial interest or is
an officer, director, trustee, stockholder, member or partner, in each case in excess of $120,000 other than for (i) payment of salary
or consulting fees for services rendered, (ii) reimbursement for expenses incurred on behalf of the Company and (iii) other
employee benefits, including stock option and other award agreements under any equity incentive plan of the Company.


 






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(y)            Sarbanes
Oxley Compliance. The Company and the Subsidiaries are in compliance in all material respects with any and all applicable requirements
of the Sarbanes-Oxley Act of 2002 that are effective as of the date hereof, and any and all applicable rules and regulations promulgated
by the Commission thereunder that are effective as of the date hereof. Except as set forth in the SEC Reports, the Company and the Subsidiaries
maintain a system of internal accounting controls sufficient to provide reasonable assurance that: (i) transactions are executed
in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation
of financial statements in conformity with 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. Except as set forth
in the SEC Reports, the Company and the Subsidiaries have established disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and
15d-15(e)) for the Company and the Subsidiaries and designed such disclosure controls and procedures to ensure that information required
to be disclosed by the Company in the reports it files or submits under the Exchange Act is recorded, processed, summarized and reported,
within the time periods specified in the Commission’s rules and forms. The Company’s certifying officers have evaluated
the effectiveness of the disclosure controls and procedures of the Company and the Subsidiaries as of the end of the period covered by
the most recently filed periodic report under the Exchange Act (such date, the “Evaluation Date”). The Company presented
in its most recently filed periodic report under the Exchange Act the conclusions of the certifying officers about the effectiveness of
the disclosure controls and procedures based on their evaluations as of the Evaluation Date. There have been no changes in the internal
control over financial reporting (as such term is defined in the Exchange Act) of the Company and its Subsidiaries that have materially
affected, or are reasonably likely to materially affect, the internal control over financial reporting of the Company and its Subsidiaries,
and are required to have been disclosed in previously filed SEC Reports but have not been disclosed therein.


 


(z)             Certain
Fees. Other than payments to be made to the Manager, no brokerage or finder’s fees or commissions are or will be payable by
the Company or any Subsidiary to any broker, financial advisor or consultant, finder, placement agent, investment banker, bank or other
Person with respect to the transactions contemplated by this Agreement. The Manager shall have no obligation with respect to any fees
or with respect to any claims made by or on behalf of other Persons for fees of a type contemplated in this Section that may be due
in connection with the transactions contemplated by this Agreement.


 


(aa)           No
Other Sales Agency Agreement. The Company has not entered into any other sales agency agreements or other similar arrangements with
any agent or any other representative in respect of at the market offerings of the Shares.


 


(bb)          [RESERVED]


 


(cc)           Listing
and Maintenance Requirements. The Common Stock is registered pursuant to Section 12(b) of the Exchange Act, and the Company
has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration of the Common
Stock under the Exchange Act nor has the Company received any notification that the Commission is contemplating terminating such registration.
The Company has not, in the 12 months preceding the date hereof, received notice from any Trading Market on which the Common Stock is
or has been listed or quoted to the effect that the Company is not in compliance with the listing or maintenance requirements of such
Trading Market. The Company is, and has no reason to believe that it will not in the foreseeable future continue to be, in compliance
with all such listing and maintenance requirements. The Common Stock is currently eligible for electronic transfer through the Depository
Trust Company or another established clearing corporation and the Company is current in payment of the fees to the Depository Trust Company
(or such other established clearing corporation) in connection with such electronic transfer.


 






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(dd)          [RESERVED]


 


(ee)           Solvency.
Based on the consolidated financial condition of the Company as of the date hereof, (i) the fair saleable value of the Company’s
assets exceeds the amount that will be required to be paid on or in respect of the Company’s existing debts and other liabilities
(including known contingent liabilities) as they mature, (ii) the Company’s assets do not constitute unreasonably small capital
to carry on its business as now conducted and as proposed to be conducted including its capital needs taking into account the particular
capital requirements of the business conducted by the Company, consolidated and projected capital requirements and capital availability
thereof, and (iii) the current cash flow of the Company, together with the proceeds the Company would receive, were it to liquidate
all of its assets, after taking into account all anticipated uses of the cash, would be sufficient to pay all amounts on or in respect
of its liabilities when such amounts are required to be paid. The Company does not intend to incur debts beyond its ability to pay such
debts as they mature (taking into account the timing and amounts of cash to be payable on or in respect of its debt). The Company has
no knowledge of any facts or circumstances which lead it to believe that it will file for reorganization or liquidation under the bankruptcy
or reorganization laws of any jurisdiction within one year from the date hereof. The Company’s most recently filed periodic report
under the Exchange Act sets forth as of the end of the period covered thereby all outstanding secured and unsecured Indebtedness of the
Company or any Subsidiary, or for which the Company or any Subsidiary has commitments that were required to be disclosed therein and there
have been no material changes with respect to such disclosure except as set forth in the SEC Reports. For the purposes of this Agreement,
 “Indebtedness” means (x) any liabilities for borrowed money or amounts owed in excess of $100,000 (other than
trade accounts payable incurred in the ordinary course of business), (y) all guaranties, endorsements and other contingent obligations
in respect of indebtedness for borrowed money of others, whether or not the same are or should be reflected in the Company’s consolidated
balance sheet (or the notes thereto), except guaranties by endorsement of negotiable instruments for deposit or collection or similar
transactions in the ordinary course of business; and (z) the present value of any lease payments in excess of $100,000 due under
leases required to be capitalized in accordance with GAAP. Neither the Company nor any Subsidiary is in default with respect to any Indebtedness,
except as would not reasonably be expected to have a Material Adverse Effect.


 






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(ff)            Tax
Status. Except for matters that would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse
Effect, the Company and its Subsidiaries each (i) has made or filed all United States federal, state and local income and all foreign
income and franchise tax returns, reports and declarations required by any jurisdiction to which it is subject, (ii) has paid all
taxes and other governmental assessments and charges that are material in amount, shown or determined to be due on such returns, reports
and declarations and (iii) has set aside on its books provision reasonably adequate for the payment of all material taxes for periods
subsequent to the periods to which such returns, reports or declarations apply. The provisions for taxes payable, if any, shown on the
financial statements filed with or as part of the Registration Statement are sufficient for all accrued and unpaid taxes, whether or not
disputed, and for all periods to and including the dates of such consolidated financial statements. The term “taxes” mean
all federal, state, local, foreign, and other net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits,
license, lease, service, service use, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, windfall
profits, customs, duties or other taxes, fees, assessments, or charges of any kind whatsoever, together with any interest and any penalties,
additions to tax, or additional amounts with respect thereto. The term “returns” means all returns, declarations, reports,
statements, and other documents required to be filed in respect to taxes.


 


(gg)          Foreign
Corrupt Practices. Neither the Company nor any Subsidiary, nor to the knowledge of the Company or any Subsidiary, any agent or other
person acting on behalf of the Company or any Subsidiary, has (i) directly or indirectly, used any funds for unlawful contributions,
gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful payment
to foreign or domestic government officials or employees or to any foreign or domestic political parties or campaigns from corporate funds,
(iii) failed to disclose fully any contribution made by the Company or any Subsidiary (or made by any person acting on its behalf
of which the Company is aware) which is in violation of law, or (iv) violated in any material respect any provision of the Foreign
Corrupt Practices Act of 1977, as amended (the “FCPA”). The Company has taken reasonable steps to ensure that its accounting
controls and procedures are sufficient to cause the Company to comply in all material respects with the FCPA.


 


(hh)          Accountants.
To the knowledge and belief of the Company, the Accountants (as defined below) (i) are an independent registered public accounting
firm as required by the Exchange Act and (ii) shall express its opinion with respect to the financial statements to be included in
the Company’s Annual Report for the fiscal year ending September 30, 2020. The Accountants have not, during the periods covered
by the financial statements included in the Prospectus, provided to the Company any non-audit services, as such term is used in Section 10A(g) of
the Exchange Act.


 






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(ii)            Regulation
M Compliance.  The Company has not, and to its knowledge no one acting on its behalf has, (i) taken, directly or indirectly,
any action designed to cause or to result in the stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of any of the Shares, (ii) sold, bid for, purchased, or, paid any compensation for soliciting purchases of, any
of the Shares, or (iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase any other securities
of the Company, other than, in the case of clauses (ii) and (iii), compensation paid to the Manager in connection with the sale of
the Shares.


 


(jj)            [RESERVED]


 


(kk)          [RESERVED]


 


(ll)            Office
of Foreign Assets Control. Neither the Company nor any Subsidiary nor, to the Company’s knowledge, any director, officer, agent,
employee or Affiliate of the Company or any Subsidiary is currently subject to any U.S. sanctions administered by the Office of Foreign
Assets Control of the U.S. Treasury Department (“OFAC”).


 


(mm)        U.S.
Real Property Holding Corporation. The Company is not and has never been a U.S. real property holding corporation within the meaning
of Section 897 of the Internal Revenue Code of 1986, as amended, and the Company shall so certify upon the Manager’s request.


 


(nn)          Bank
Holding Company Act. Neither the Company nor any of its Subsidiaries or Affiliates is subject to the Bank Holding Company Act of 1956,
as amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve System (the “Federal
Reserve”). Neither the Company nor any of its Subsidiaries or Affiliates owns or controls, directly or indirectly, five percent
(5%) or more of the outstanding shares of any class of voting securities or twenty-five percent (25%) or more of the total equity of a
bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve. Neither the Company nor any of its Subsidiaries
or Affiliates exercises a controlling influence over the management or policies of a bank or any entity that is subject to the BHCA and
to regulation by the Federal Reserve.


 


(oo)          Money
Laundering. The operations of the Company and its 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, applicable
money laundering statutes and applicable rules and regulations thereunder (collectively, the “Money Laundering Laws”),
and no Action 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 or any Subsidiary, threatened.


 






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(pp)          FINRA
Affiliation. To the Company’s knowledge, no officer, director or any beneficial owner of 10% or more of the Company’s
unregistered securities has any direct or indirect affiliation or association with any FINRA member (as determined in accordance with
the rules and regulations of FINRA). The Company will advise the Manager if it learns that any officer, director or owner of 10%
or more of the Company’s outstanding shares of Common Stock or Common Stock Equivalents is or becomes an affiliate or associated
person of a FINRA member firm.


 


4.               Agreements.
The Company agrees with the Manager that:


 


(a)            Right
to Review Amendments and Supplements to Registration Statement and Prospectus. During any period when the delivery of a prospectus
relating to the Shares is required (including in circumstances where such requirement may be satisfied pursuant to Rule 172, 173
or any similar rule) to be delivered under the Act in connection with the offering or the sale of Shares, the Company will not file any
amendment to the Registration Statement or supplement (including any Prospectus Supplement) to the Base Prospectus unless the Company
has furnished to the Manager a copy for its review prior to filing and will not file any such proposed amendment or supplement to which
the Manager reasonably objects (provided, however, that the Company will have no obligation to provide the Manager any advance copy of
a filing or to provide the Manager an opportunity to object to a filing if such filing does not name the Manager and does not relate to
the transactions contemplated herein). The Company has properly completed the Prospectus, in a form approved by the Manager, and filed
such Prospectus, as amended at the Execution Time, with the Commission pursuant to the applicable paragraph of Rule 424(b) by
the Execution Time and will cause any supplement to the Prospectus to be properly completed, in a form approved by the Manager, and will
file such supplement with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed
thereby and will provide evidence reasonably satisfactory to the Manager of such timely filing. The Company will promptly advise the Manager
(i) when any Prospectus Supplement shall have been filed (if required) with the Commission pursuant to Rule 424(b), (ii) when,
during any period when the delivery of a prospectus (whether physically or through compliance with Rule 172, 173 or any similar rule)
is required under the Act in connection with the offering or sale of the Shares, any amendment to the Registration Statement shall have
been filed or become effective (other than any annual report of the Company filed pursuant to Section 13(a) or 15(d) of
the Exchange Act), (iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any
supplement to the Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding
for that purpose and (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of
the Shares for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its
commercially reasonable efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to
the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as reasonably possible
the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the
Registration Statement or a new registration statement and using its commercially reasonable efforts to have such amendment or new registration
statement declared effective as soon as practicable.


 






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(b)            Subsequent
Events. If, at any time on or after an Applicable Time but prior to the related Settlement Date, any event occurs as a result of which
the Registration Statement or Prospectus would include any untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under which they were made or the circumstances then prevailing not misleading,
the Company will (i) notify promptly the Manager so that any use of the Registration Statement or Prospectus may cease until such
are amended or supplemented; (ii) amend or supplement the Registration Statement or Prospectus to correct such statement or omission;
and (iii) supply any amendment or supplement to the Manager in such quantities as the Manager may reasonably request.


 


(c)            Notification
of Subsequent Filings. If, during any period when the delivery of a prospectus relating to the Shares is required (including in circumstances
where such requirement may be satisfied pursuant to Rule 172, 173 or any similar rule) to be delivered under the Act, any event occurs
as a result of which the Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or if it shall
be necessary to amend the Registration Statement, file a new registration statement or supplement the Prospectus to comply with the Act
or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Prospectus, the Company
promptly will (i) notify the Manager of any such event, (ii) subject to Section 4(a), prepare and file with the Commission
an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use
its commercially reasonable efforts to have any amendment to the Registration Statement or new registration statement declared effective
as soon as reasonably practicable in order to avoid any disruption in use of the Prospectus and (iv) supply any supplemented Prospectus
to the Manager in such quantities as the Manager may reasonably request.


 






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(d)            Earnings
Statements. As soon as practicable, the Company will make generally available to its security holders and to the Manager an earnings
statement or statements of the Company and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and
Rule 158. For the avoidance of doubt, the Company’s compliance with the reporting requirements of the Exchange Act shall be
deemed to satisfy the requirements of this Section 4(d).


 


(e)            Delivery
of Registration Statement. Upon the request of the Manager, the Company will furnish to the Manager and counsel for the Manager, without
charge, signed copies of the Registration Statement (including exhibits thereto) and, so long as delivery of a prospectus by the Manager
or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172, 173
or any similar rule), as many copies of the Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Manager
may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.


 


(f)             Qualification
of Shares. The Company will arrange, if necessary, for the qualification of the Shares for sale under the laws of such jurisdictions
as the Manager may designate and will maintain such qualifications in effect so long as required for the distribution of the Shares; provided
that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified, to subject
itself to taxation in any jurisdiction where it is not so subject or to take any action that would subject it to service of process in
suits, other than those arising out of the offering or sale of the Shares, in any jurisdiction where it is not now so subject.


 


(g)            Free
Writing Prospectus. The Company agrees that, unless it has or shall have obtained the prior written consent of the Manager, and the
Manager agrees with the Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company,
it has not made and will not make any offer relating to the 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 by the Company with the
Commission or retained by the Company under Rule 433. Any such free writing prospectus consented to by the Manager or the Company
is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (i) it has treated
and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (ii) it has complied
and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus,
including in respect of timely filing with the Commission, legending and record keeping.


 






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(h)            Subsequent
Equity Issuances. The Company shall not deliver any Sales Notice hereunder (and any Sales Notice previously delivered shall not apply
during such three Business Days) for at least three (3) Business Days prior to any date on which the Company or any Subsidiary offers,
sells, issues, contracts to sell, contracts to issue or otherwise disposes of, directly or indirectly, any other shares of Common Stock
or any Common Stock Equivalents (other than the Shares), subject to Manager’s right to waive this obligation; provided that,
without compliance with the foregoing obligation, the Company may issue and sell Common Stock pursuant to any employee equity plan, stock
ownership plan or dividend reinvestment plan of the Company in effect from time to time and described in the SEC Reports (a "Disclosed
Equity Plan") and the Company may issue Common Stock issuable upon the conversion or exercise of Common Stock Equivalents described
in the SEC Reports outstanding from time to time, provided that no Common Stock Equivalents be issued during such three (3) Business
Day period (other than under a Disclosed Equity Plan).


 


(i)             Market
Manipulation. Until the termination of this Agreement, the Company will not take, directly or indirectly, any action designed to or
that would constitute or that would reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or
manipulation in violation of the Act, Exchange Act or the rules and regulations thereunder of the price of any security of the Company
to facilitate the sale or resale of the Shares or otherwise violate any provision of Regulation M under the Exchange Act.


 


(j)             Notification
of Incorrect Certificate. The Company will, at any time during the term of this Agreement, as supplemented from time to time, advise
the Manager promptly after it shall have received notice or obtained knowledge thereof, of any information or fact that would result in
any material statement made in any opinion, certificate, letter or other document provided to the Manager pursuant to Section 6 herein
to be materially inaccurate or untrue as of the date such statement was made.


 






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(k)            Certification
of Accuracy of Disclosure. Upon commencement of the offering of the Shares under this Agreement (and upon the recommencement of the
offering of the Shares under this Agreement following the termination of a suspension of sales hereunder lasting more than 30 Trading
Days), and each time thereafter that (i) the Registration Statement or Prospectus shall be amended or supplemented, other than by
means of Incorporated Documents, (ii) the Company files its Annual Report on Form 10-K under the Exchange Act, (iii) the
Company files its quarterly reports on Form 10-Q under the Exchange Act, (iv) the Company files a Current Report on Form 8-K
containing amended financial information (other than information that is furnished and not filed), if the Manager reasonably determines
that the information in such Form 8-K is material and notifies the Company thereof, or (v) the Shares are delivered to the Manager
as principal at the Time of Delivery pursuant to a Terms Agreement (such commencement or recommencement date and each such date referred
to in (i), (ii), (iii), (iv) and (v) above, a “Representation Date”), unless waived by the Manager, the Company
shall furnish or cause to be furnished to the Manager forthwith a certificate dated and delivered on the Representation Date, in form
reasonably satisfactory to the Manager to the effect that the statements contained in the certificate referred to in Section 6(c) of
this Agreement which were last furnished to the Manager are true and correct at the Representation Date, as though made at and as of such
date (except that such statements shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented
to such date) or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in said Section 6(c),
modified as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to the date of delivery of
such certificate. The requirement to furnish or cause to be furnished a certificate under this Section 4(k) shall at the request
of the Company be waived for any Representation Date occurring on a date on which no instruction to the Manager to sell Shares pursuant
to this Agreement has been delivered by the Company or is pending. Notwithstanding the foregoing, if the Company subsequently decides
to sell Shares following any Representation Date when the Company relied on such waiver and did not provide the Manager a certificate
pursuant to this Section 4(k), then before the Company is entitled to deliver a Sales Notice to the Manager to sell Shares pursuant
to this Agreement, the Company shall provide the Manager such certificate.


 


(l)             Bring
Down Opinions; Negative Assurance. At each Representation Date, unless waived by the Manager, the Company shall furnish or cause to
be furnished forthwith to the Manager and to counsel to the Manager a written opinion of (i) counsel to the Company (“Company
Counsel”) and (ii) local counsel to the Company (“Local Counsel”), each addressed to the Manager and
dated and delivered on such Representation Date, in form and substance reasonably satisfactory to the Manager, including, solely with
respect to Company Counsel, a negative assurance representation. In lieu of delivering such an opinion or such opinions for Representation
Dates subsequent to the commencement of the offering of the Shares under this Agreement Company Counsel or Local Counsel, as applicable,
may furnish the Manager with a letter to the effect that the Manager may rely on a prior opinion delivered under Section 6(b) or
this Section 4(l) to the same extent as if it were dated the date of such letter (except that statements in such prior opinion
shall be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented as of such subsequent Representation
Date). The requirement to furnish or cause to be furnished such opinions under this Section 4(l) shall be waived for any Representation
Date other than a Representation Date on which a material amendment to the Registration Statement or Prospectus is made or the Company
files its Annual Report on Form 10-K or a material amendment thereto under the Exchange Act, unless the Manager reasonably requests
such deliverable required this Section 4(l) in connection with a Representation Date, upon which request such deliverables shall
be deliverable hereunder.


 






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(m)            Auditor
Bring Down “Comfort” Letter. At each Representation Date, unless waived by the Manager, the Company shall cause (1) the
Company’s auditors (the “Accountants”), or other independent accountants satisfactory to the Manager forthwith
to furnish the Manager a letter, and (2) the Chief Financial Officer of the Company forthwith to furnish the Manager a certificate,
in each case dated on such Representation Date, in form satisfactory to the Manager, of the same tenor as the letters and certificate
referred to in Section 6 of this Agreement but modified to relate to the Registration Statement and the Prospectus, as amended and
supplemented to the date of such letters and certificate. The requirement to furnish or cause to be furnished a “comfort”
letter under this Section 4(m) shall be waived for any Representation Date other than a Representation Date on which a material
amendment to the Registration Statement or Prospectus is made or the Company files its Annual Report on Form 10-K or a material amendment
thereto under the Exchange Act, unless the Manager reasonably requests the deliverables required by this Section 4(m) in connection
with a Representation Date, upon which request such deliverables shall be deliverable hereunder.


 


(n)            Secretary’s
Certificate. At each Representation Date, unless waived by the Manager, the Company shall cause the Secretary of the Company forthwith
to furnish the Manager with a certificate dated and delivered on the Representation Date in form reasonably satisfactory to the Manager
(the “Secretary’s Certificate”).


 


(o)            Due
Diligence Session. Upon commencement of the offering of the Shares under this Agreement (and upon the recommencement of the offering
of the Shares under this Agreement following the termination of a suspension of sales hereunder lasting more than 30 Trading Days), and
at each Representation Date, the Company will conduct a due diligence session, in form and substance, reasonably satisfactory to the Manager,
which shall include representatives of management and the Accountants. The Company shall reasonably cooperate in a timely manner with
any reasonable due diligence request from or review conducted by the Manager or its agents from time to time in connection with the transactions
contemplated by this Agreement, including, without limitation, providing information and available documents and access to appropriate
corporate officers and the Company’s agents during regular business hours, and timely furnishing or causing to be furnished such
certificates, letters and opinions from the Company, its officers and its agents, as the Manager may reasonably request. The Company shall
reimburse the Manager for Manager’s counsel’s fees in each such due diligence update session, up to a maximum of $5,000 per
update, plus any incidental expense incurred by the Manager in connection therewith.


 


(p)            Acknowledgment
of Trading. The Company acknowledges that the Manager may trade in the Common Stock for the Manager’s own account and for the
account of its clients at the same time as sales of the Shares occur pursuant to this Agreement or pursuant to a Terms Agreement.


 






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(q)            Disclosure
of Shares Sold. The Company will disclose in its Annual Reports on Form 10-K and Quarterly Reports on Form 10-Q, as applicable,
the number of Shares sold through the Manager under this Agreement, the Net Proceeds to the Company with respect to sales of Shares pursuant
to this Agreement during the relevant quarter; and, if required by any subsequent change in Commission policy or request, more frequently
by means of a Current Report on Form 8-K or a further Prospectus Supplement.


 


(r)             Rescission
Right. If, to the knowledge of the Company, the conditions set forth in Section 6 shall not have been satisfied as of the applicable
Settlement Date, the Company will offer to any person who has agreed to purchase Shares from the Company as the result of an offer to
purchase solicited by the Manager the right to refuse to purchase and pay for such Shares.


 


(s)             Bring
Down of Representations and Warranties. Each acceptance by the Company of an offer to purchase the Shares hereunder, and each execution
and delivery by the Company of a Terms Agreement, shall be deemed to be an affirmation to the Manager that the representations and warranties
of the Company contained in or made pursuant to this Agreement are true and correct as of the date of such acceptance or of such Terms
Agreement as though made at and as of such date, and an undertaking that such representations and warranties will be true and correct
as of the Settlement Date for the Shares relating to such acceptance or as of the Time of Delivery relating to such sale, as the case
may be, as though made at and as of such date (except that such representations and warranties shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented relating to such Shares).


 


(t)             Reservation
of Shares. At the Applicable Time, the Company shall ensure that there will be available sufficient shares of Common Stock for the
issuance, free of any preemptive rights, out of its authorized but unissued shares of Common Stock or shares of Common Stock held in treasury
the aggregate number of Shares sold at the Applicable Time.


 


(u)            Listing
of Shares. At the Applicable Time, the Company will use its commercially reasonable efforts to cause the Shares to be listed for trading
on the Trading Market and to maintain such listing.


 


(v)            Obligation
Under Exchange Act. During any period when the delivery of a prospectus relating to the Shares is required (including in circumstances
where such requirement may be satisfied pursuant to Rule 172, 173 or any similar rule) to be delivered under the Act, the Company
will file all documents required to be filed with the Commission pursuant to the Exchange Act within the time periods required by the
Exchange Act and the regulations thereunder (as applicable, giving effect to any extension pursuant to Rule 12b-25 under the Exchange
Act).


 






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(w)          DTC
Facility. The Company shall cooperate with Manager and use its commercially reasonable efforts to permit the Shares to be eligible
for clearance and settlement through the facilities of DTC.


 


(x)            Use
of Proceeds. The Company will apply the Net Proceeds from the sale of the Shares in the manner set forth in the Prospectus.


 


(y)           Filing
of Prospectus Supplement. If any sales are made pursuant to this Agreement which are not made in “at the market” offerings
as defined in Rule 415, including, without limitation, any Placement pursuant to a Terms Agreement, the Company shall file a Prospectus
Supplement describing the terms of such transaction, the amount of Shares sold, the price thereof, the Manager’s compensation,
and such other information as may be required pursuant to Rule 424 and Rule 430B, as applicable, within the time required by
Rule 424.


 


(z)            Additional
Registration Statement. To the extent that the Company does not have an effective Registration Statement covering the sales of the
Shares as contemplated by this Agreement, the Company shall file a new registration statement with respect to any additional shares of
Common Stock necessary to complete such sales of the Shares and shall cause such registration statement to become effective as promptly
as practicable. After the effectiveness of any such registration statement, all references to “Registration Statement”
included in this Agreement shall be deemed to include such new registration statement, including all documents incorporated by reference
therein pursuant to Item 12 of Form S-3, and all references to “Base Prospectus” included in this Agreement
shall be deemed to include the final form of prospectus, including all documents incorporated therein by reference, included in any such
registration statement at the time such registration statement became effective.


 


5.             Payment
of Expenses. The Company agrees to pay the costs and expenses incident to the performance of its obligations under this Agreement,
whether or not the transactions contemplated hereby are consummated, including without limitation: (i) the preparation, printing
or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), the
Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction)
and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement,
the Prospectus, and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably
requested for use in connection with the offering and sale of the Shares; (iii) the preparation, printing, authentication, issuance
and delivery of certificates for the Shares, including any stamp or transfer taxes in connection with the original issuance and sale of
the Shares; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or
reproduced) and delivered in connection with the offering of the Shares; (v) the registration of the Shares under the Exchange Act,
if applicable, and the listing of the Shares on the Trading Market; (vi) any registration or qualification of the Shares for offer
and sale under the securities or blue sky laws of the several states (including filing fees ; (vii) the transportation and other
expenses incurred by or on behalf of Company representatives in connection with presentations to prospective purchasers of the Shares;
(viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special
counsel) for the Company; (ix) the filing fee under FINRA Rule 5110; (x) the reasonable fees and expenses of the Manager’s
counsel, not to exceed $100,000 (excluding any periodic due diligence fees provided for under Section 4(n)), which shall be paid
upon the Execution Time; and (xi) all other costs and expenses incident to the performance by the Company of its obligations hereunder.


 






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6.             Conditions
to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to
(i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each
Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery (subject to the conditions set forth in Section 4(1) and
Section 4(m)), (ii) the performance by the Company of its obligations hereunder and (iii) the following additional conditions:


 


(a)           Filing
of Prospectus Supplement. The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have
been filed in the manner and within the time period required by Rule 424(b) with respect to any sale of Shares; each Prospectus
Supplement shall have been filed in the manner required by Rule 424(b) within the time period required hereunder and under
the Act; any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed
with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the
effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose
shall have been instituted or threatened.


 


(b)           Delivery
of Opinion. The Company shall have caused Company Counsel and Local Counsel to furnish to the Manager their respective opinions and,
solely with respect to Company Counsel, negative assurance statement, dated as of such date and addressed to the Manager in form and substance
reasonably acceptable to the Manager.


 


(c)           Delivery
of Officer’s Certificate. The Company shall have furnished or caused to be furnished to the Manager a certificate of the Company
signed by the Chief Executive Officer and Chief Financial Officer of the Company, dated as of such date, to the effect that the signers
of such certificate have carefully examined the Registration Statement, the Prospectus, any Prospectus Supplement and any documents incorporated
by reference therein and any supplements or amendments thereto and this Agreement and that:


 


(i)            the
representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect as if
made on such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or
satisfied at or prior to such date;


 






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(ii)            no
stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings
for that purpose have been instituted or, to the Company’s knowledge, threatened; and


 


(iii)           since
the date of the most recent financial statements included in the Registration Statement, the Prospectus and the Incorporated Documents,
there has been no Material Adverse Effect on the condition (financial or otherwise), earnings, business or properties of the Company
and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth
in or contemplated in the Registration Statement and the Prospectus.


 


(d)           Delivery
of Secretary’s Certificate. The Company shall have furnished or caused to be furnished to the Manager the Secretary’s
Certificate, dated as of such date.


 


(e)           Delivery
of Accountants’ “Comfort” Letter. The Company shall have requested and caused the Accountants to have furnished
to the Manager letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance
satisfactory to the Manager, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the
respective applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of any unaudited
interim financial information of the Company included or incorporated by reference in the Registration Statement and the Prospectus and
provide customary “comfort” as to such review in form and substance satisfactory to the Manager.


 


(f)            No
Material Adverse Event. Since the respective dates as of which information is disclosed in the Registration Statement, the Prospectus
and the Incorporated Documents, except as otherwise stated therein, there shall not have been (i) any change or decrease in previously
reported results specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change,
or any material development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business
or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Registration Statement, the Prospectus and the Incorporated Documents (exclusive
of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in
the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery
of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Incorporated Documents and the Prospectus
(exclusive of any amendment or supplement thereto).


 






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(g)           Payment
of All Fees. The Company shall have paid the required Commission filing fees relating to the Shares within the time period required
by Rule 456(b)(1)(i) of the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and
457(r) of the Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with
Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus
filed pursuant to Rule 424(b).


 


(h)           No
FINRA Objections. FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements
under this Agreement.


 


(i)            Shares
Listed on Trading Market. The Shares shall have been listed and admitted and authorized for trading on the Trading Market, and satisfactory
evidence of such actions shall have been provided to the Manager.


 


(j)            Other
Assurances. Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Manager such
further information, certificates and documents as the Manager may reasonably request.


 


If any of the conditions specified
in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates
mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for
the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date
or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone
or facsimile confirmed in writing.


 


The documents required to
be delivered by this Section 6 shall be delivered to the office of Skadden, Arps, Slate, Meagher & Flom LLP, counsel for
the Manager, at One Manhattan West, New York, New York 10001, Attn: Andrea Nicolas, on each such date as provided in this Agreement.


 






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7.             Indemnification
and Contribution.


 


(a)            Indemnification
by Company. The Company agrees to indemnify and hold harmless the Manager, the directors, officers, employees and agents of the Manager
and each person who controls the Manager within the meaning of either the Act or the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may become subject under the Act, the Exchange Act or other Federal
or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration
Statement for the registration of the Shares as originally filed or in any amendment thereof, or in the Base Prospectus, any Prospectus
Supplement, the Prospectus, any Issuer Free Writing Prospectus, or in any amendment thereof or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the
statements therein not misleading and agrees to reimburse each such indemnified party for any legal or other expenses reasonably incurred
by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that
the Company will not be liable in any such case to the extent that any such loss, claim, damage, liability or action arises out of or
is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and
in conformity with written information furnished to the Company by the Manager specifically for inclusion therein. This indemnity agreement
will be in addition to any liability that the Company may otherwise have.


 


(b)           Indemnification
by Manager. The Manager agrees to indemnify and hold harmless the Company, each of its directors, each of its officers who signs
the Registration Statement, and each person who controls the Company within the meaning of either the Act or the Exchange Act, to the
same extent as the foregoing indemnity from the Company to the Manager, but only with reference to written information relating to the
Manager furnished to the Company by the Manager specifically for inclusion in the documents referred to in the foregoing indemnity; provided,
however, that in no case shall the Manager be responsible for any amount in excess of the Broker Fee applicable to the Shares and
paid hereunder. This indemnity agreement will be in addition to any liability which the Manager may otherwise have.


 






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(c)            Indemnification
Procedures. Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action,
such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 7, notify
the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve
it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action
and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided
in paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint counsel of the indemnifying party’s
choice at the indemnifying party’s expense to represent the indemnified party in any action for which indemnification is sought
(in which case the indemnifying party shall not thereafter be responsible for the fees and expenses of any separate counsel retained by
the indemnified party or parties except as set forth below); provided, however, that such counsel shall be reasonably satisfactory
to the indemnified party. Notwithstanding the indemnifying party’s election to appoint counsel to represent the indemnified party
in an action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying party
shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying
party to represent the indemnified party would present such counsel with a conflict of interest, (ii) the actual or potential defendants
in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional
to those available to the indemnifying party, (iii) the indemnifying party shall not have employed counsel reasonably satisfactory
to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action or
(iv) the indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party.
An indemnifying party will not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry
of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action,
suit or proceeding. An indemnified party will not, without the prior written consent of the indemnifying party, which shall not be unreasonably
withheld, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought hereunder.


 


(d)           Contribution.
In the event that the indemnity provided in paragraph (a), (b) or (c) of this Section 7 is unavailable to or insufficient
to hold harmless an indemnified party for any reason, the Company and the Manager agree to contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending the same)
(collectively “Losses”) to which the Company and the Manager may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and by the Manager on the other from the offering of the Shares;
provided, however, that in no case shall the Manager be responsible for any amount in excess of the Broker Fee applicable to the
Shares and paid hereunder. If the allocation provided by the immediately preceding sentence is unavailable for any reason, the Company
and the Manager severally shall contribute in such proportion as is appropriate to reflect not only such relative benefits but also the
relative fault of the Company on the one hand and of the Manager on the other in connection with the statements or omissions which resulted
in such Losses as well as any other relevant equitable considerations. Benefits received by the Company shall be deemed to be equal to
the total net proceeds from the offering (before deducting expenses) received by it, and benefits received by the Manager shall be deemed
to be equal to the Broker Fee applicable to the Shares and paid hereunder as determined by this Agreement. Relative fault shall be determined
by reference to, among other things, whether any untrue or any alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information provided by the Company on the one hand or the Manager on the other, the intent
of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement or omission.
The Company and the Manager agree that it would not be just and equitable if contribution were determined by pro rata allocation or any
other method of allocation which does not take account of the equitable considerations referred to above. Notwithstanding the provisions
of this paragraph (d), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 7,
each person who controls the Manager within the meaning of either the Act or the Exchange Act and each director, officer, employee and
agent of the Manager shall have the same rights to contribution as the Manager, and each person who controls the Company within the meaning
of either the Act or the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director
of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions
of this paragraph (d).


 






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8.             Termination.


 


(a)           The
Company shall have the right, by giving written notice as hereinafter specified, to terminate the provisions of this Agreement relating
to the solicitation of offers to purchase the Shares in its sole discretion at any time upon prior written notice. Any such termination
shall be without liability of any party to any other party except that (i) with respect to any pending sale, through the Manager
for the Company, the obligations of the Company, including in respect of compensation of the Manager, shall remain in full force and
effect notwithstanding the termination and (ii) the provisions of Sections 5, 7, 8, 9, 10, 12 and 14 of this Agreement shall
remain in full force and effect notwithstanding such termination.


 


(b)           The
Manager shall have the right, by giving written notice as hereinafter specified, to terminate the provisions of this Agreement relating
to the solicitation of offers to purchase the Shares in its sole discretion at any time. Any such termination shall be without liability
of any party to any other party except that the provisions of Sections 5, 7, 8, 9, 10, 12 and 14 of this Agreement shall remain
in full force and effect notwithstanding such termination.


 






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(c)           This
Agreement shall remain in full force and effect until such date that this Agreement is terminated pursuant to Sections 8(a) or
(b) above or otherwise by mutual agreement of the parties; provided that any such termination by mutual agreement shall in
all cases be deemed to provide that Sections 5, 7, 8, 9, 10, 12 and 14 shall remain in full force and effect.


 


(d)           Any
termination of this Agreement shall be effective on the date specified in such notice of termination; provided that no such termination
shall be effective until the close of business on the date of receipt of such notice by the Manager or the Company, as the case may be.
If such termination shall occur prior to the Settlement Date or Time of Delivery for any sale of the Shares effected prior to such termination,
such sale of the Shares shall settle in accordance with the provisions of Section 2(b) of this Agreement.


 


(e)           In
the case of any purchase of Shares by the Manager pursuant to a Terms Agreement, the obligations of the Manager pursuant to such Terms
Agreement shall be subject to termination, in the absolute discretion of the Manager, by prompt oral notice given to the Company prior
to the Time of Delivery relating to such Shares, if any, and confirmed promptly by facsimile or electronic mail, if since the time of
execution of the Terms Agreement and prior to such delivery and payment, (i) trading in the Common Stock shall have been suspended
by the Commission or the Trading Market or trading in securities generally on the Trading Market shall have been suspended or limited
or minimum prices shall have been established on such exchange, (ii) a banking moratorium shall have been declared either by Federal
or New York State authorities or (iii) there shall have occurred any outbreak or escalation of hostilities, declaration by the United
States of a national emergency or war, or other calamity or crisis the effect of which on financial markets is such as to make it, in
the sole judgment of the Manager, impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by
the Prospectus (exclusive of any amendment or supplement thereto).


 


9.             Representations
and Indemnities to Survive. The respective agreements, representations, warranties, indemnities and other statements of the Company
or its officers and of the Manager set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of
any investigation made by the Manager or the Company or any of the officers, directors, employees, agents or controlling persons referred
to in Section 7, and will survive delivery of and payment for the Shares.


 


10.           Notices.
All communications hereunder will be in writing and effective only on receipt, and will be mailed, delivered, e-mailed or facsimiled to
the addresses of the Company and the Manager, respectively, set forth on the signature page hereto.


 


11.           Successors.
This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers,
directors, employees, agents and controlling persons referred to in Section 7, and no other person will have any right or obligation
hereunder.


 






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12.           No
Fiduciary Duty. The Company hereby acknowledges that (a) the purchase and sale of the Shares pursuant to this Agreement is an
arm’s-length commercial transaction between the Company, on the one hand, and the Manager and any affiliate through which it may
be acting, on the other, (b) the Manager is acting solely as sales agent and/or principal in connection with the purchase and sale
of the Company’s securities and not as a fiduciary of the Company, and (c) the Company’s engagement of the Manager in
connection with the offering and the process leading up to the offering is as independent contractors and not in any other capacity. Furthermore,
the Company agrees that it is solely responsible for making its own judgments in connection with the offering (irrespective of whether
the Manager has advised or is currently advising the Company on related or other matters). The Company agrees that it will not claim that
the Manager has rendered advisory services of any nature or respect, or owe an agency, fiduciary or similar duty to the Company, in connection
with such transaction or the process leading thereto.


 


13.           Integration.
This Agreement and any Terms Agreement supersede all prior agreements and understandings (whether written or oral) between the Company
and the Manager with respect to the subject matter hereof.


 


14.           Amendments;
Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument signed, in
the case of an amendment, by the Company and the Manager. No waiver of any default with respect to any provision, condition or requirement
of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other
provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder in any manner
impair the exercise of any such right.


 


15.           Applicable
Law. This Agreement and any Terms Agreement will be governed by and construed in accordance with the laws of the State of New York
applicable to contracts made and to be performed within the State of New York. Each of the Company and the Manager: (i) agrees
that any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted exclusively in New York Supreme
Court, County of New York, or in the United States District Court for the Southern District of New York, (ii) waives any objection
which it may have or hereafter to the venue of any such suit, action or proceeding, and (iii) irrevocably consents to the jurisdiction
of the New York Supreme Court, County of New York, and the United States District Court for the Southern District of New York in any
such suit, action or proceeding. Each of the Company and the Manager further agrees to accept and acknowledge service of any and all
process which may be served in any such suit, action or proceeding in the New York Supreme Court, County of New York, or in the United
States District Court for the Southern District of New York and agrees that service of process upon the Company mailed by certified mail
to the Company’s address shall be deemed in every respect effective service of process upon the Company, in any such suit, action
or proceeding, and service of process upon the Manager mailed by certified mail to the Manager’s address shall be deemed in every
respect effective service process upon the Manager, in any such suit, action or proceeding. If either party shall commence an action
or proceeding to enforce any provision of this Agreement, then the prevailing party in such action or proceeding shall be reimbursed
by the other party for its reasonable attorney’s fees and other costs and expenses incurred with the investigation, preparation
and prosecution of such action or proceeding.


 






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16.          Waiver
of Jury Trial. each of The Company and the manager 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, any Terms Agreement or the transactions
contemplated hereby or thereby.


 


17.           Counterparts.
This Agreement and any Terms Agreement may be executed in two or more counterparts, all of which when taken together shall be considered
one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to each other party,
it being understood that the parties need not sign the same counterpart. In the event that any signature is delivered by email delivery
of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party executing (or on whose
behalf such signature is executed) with the same force and effect as if such “.pdf” signature page were an original thereof.


 


18.           Headings.
The section headings used in this Agreement and any Terms Agreement are for convenience only and shall not affect the construction hereof.


 






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If the foregoing is in accordance
with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance
shall represent a binding agreement among the Company and the Manager.


 


Very truly yours,


 


Cleanspark, inc.


 


	By: 	/s/ Zachary Bradford	 
	Name: Zachary Bradford	 
	Title: CEO	 



 


Address
for Notice:


1185 S. 1800 West, Suite 3

Woods Cross, Utah 84087

Attention: Zachary Bradford, CEO


Email: zach@cleanspark.com


 


With a copy (which shall not constitute notice) to:


 


Katten Muchin Rosenman LLP


525 West Monroe Street


Chicago, Illinois 60661


Attention: Mark D. Wood


Email: mark.wood@katten.com


 


The foregoing Agreement is hereby confirmed and accepted as of the
date first written above.


 


H.C. WAINWRIGHT & CO., LLC


 


	By:	 /s/ Mark W. Viklund	 
	Name: Mark W. Viklund	 
	Title: Chief Executive Officer	 



  


Address
for Notice:


430 Park Avenue

New York, New York 10022

Attention: Chief Executive Officer


Email: notices@hcwco.com


 


[Signature Page to ATM Agreement]


 






    


     


    

 





Form of Terms Agreement


 


ANNEX I


 


CLEANSPARK, INC.


 


TERMS AGREEMENT


 


Dear Sirs:


 


CleanSpark, Inc.
(the “Company”) proposes, subject to the terms and conditions stated herein and in the At The Market Offering Agreement,
dated June 3, 2021 (the “At The Market Offering Agreement”), between the Company and H.C. Wainwright &
Co., LLC (“Manager”), to issue and sell to Manager the securities specified in the Schedule I hereto (the
 “Purchased Shares”).


 


Each of the provisions
of the At The Market Offering Agreement not specifically related to the solicitation by the Manager, as agent of the Company, of offers
to purchase securities is incorporated herein by reference in its entirety, and shall be deemed to be part of this Terms Agreement to
the same extent as if such provisions had been set forth in full herein. Each of the representations and warranties set forth therein
(except for any of such representations and warranties that speak as of a specific date) shall be deemed to have been made at and as of
the date of this Terms Agreement and the Time of Delivery, except that each representation and warranty in Section 3 of the At The
Market Offering Agreement which makes reference to the Prospectus (as therein defined) shall be deemed to be a representation and warranty
as of the date of the At The Market Offering Agreement in relation to the Prospectus, and also a representation and warranty as of the
date of this Terms Agreement and the Time of Delivery in relation to the Prospectus as amended and supplemented to relate to the Purchased
Shares.


 


An amendment to
the Registration Statement (as defined in the At The Market Offering Agreement), or a supplement to the Prospectus, as the case may be,
relating to the Purchased Shares, in the form heretofore delivered to the Manager is now proposed to be filed with the Securities and
Exchange Commission.


 


Subject to the terms
and conditions set forth herein and in the At The Market Offering Agreement which are incorporated herein by reference, the Company agrees
to issue and sell to the Manager and the latter agrees to purchase from the Company the number of shares of the Purchased Shares at the
time and place and at the purchase price set forth in the Schedule I hereto.


 






    1


     


    

 


If the foregoing is in accordance
with your understanding, please sign and return to us a counterpart hereof, whereupon this Terms Agreement, including those provisions
of the At The Market Offering Agreement incorporated herein by reference, shall constitute a binding agreement between the Manager and
the Company.


 


	CLEANSPARK, INC.	 
	 	    	 
	 	      	 
	By:	                                            	 
	 	Name:	 
	 	Title:  	 
	 	     	 
	ACCEPTED as of the date first written above.	 
	 	    	 
	H.C. WAINWRIGHT& CO., LLC	 
	 	 	 
	 	    	 
	By:	     	 
	 	Name:	 
	 	Title:	 



 


[Signature Page to Terms Agreement]


 






    


     


    

 


Schedule I