Exhibit
10.1


 


fat
brands inc.


 


Up
to $21,435,000


Shares
of Class A Common Stock 


and



Shares
of 8.25% Series B Cumulative Preferred Stock


 


ATM
Sales Agreement


 


November
14, 2022


 


ThinkEquity
LLC


17
State Street, 41st Floor


New
York, New York 10004


 


Ladies
and Gentlemen:


 


FAT
Brands Inc., a Delaware corporation (the “Company”), confirms its agreement (this “Agreement”)
with ThinkEquity LLC (the “Agent”), as follows:


 


1.
Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject
to the conditions set forth herein, it may sell and issue through the Agent, acting as principal or agent, shares (the “Placement
Shares”) of (i) Class A Common Stock, par value $0.0001 per share, of the Company (“Class A Common Stock”),
and (ii) 8.25% Series B Cumulative Preferred Stock par, value $0.0001 per share, of the Company (“Series B Preferred Stock”);
provided, however, that in no event shall the Company sell and issue through the Agent such number or dollar amount of
Placement Shares that would (a) exceed the dollar amount of shares of Class A Common Stock and Series B Preferred Stock registered for
sale on the effective Registration Statement (as defined below) pursuant to which the offering is being made, (b) exceed the number of
authorized but unissued shares of Class A Common Stock and/or Series B Preferred Stock (less shares of Class A Common Stock and/or Series
B Preferred Stock issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from
the Company’s authorized capital stock), (c) exceed the dollar amount of shares of Class A Common Stock and/or Series B Preferred
Stock permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable), or (d) exceed the dollar amount
of shares of Class A Common Stock and/or Series B Preferred Stock set forth in the Prospectus Supplement (as defined below) filed by
the Company pursuant to which the offering is being made (the lesser of (a), (b), (c) and (d), the “Maximum Amount”).
Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in
this Section 1 on the amount of Placement Shares sold and issued under this Agreement shall be the sole responsibility of the
Company and that the Agent shall have no obligation in connection with such compliance. The offer and sale of Placement Shares through
the Agent will be effected pursuant to the Registration Statement filed by the Company with, and which was declared effective by, the
U.S. Securities and Exchange Commission (the “Commission”), and the Prospectus Supplement filed by the Company
with the Commission, although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement
or the Prospectus Supplement to issue shares of Class A Common Stock and/or Series B Preferred Stock.


 




    	 



     


    

 


The
Company has filed or will file, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities
Act”), and the rules and regulations thereunder (the “Securities Act Regulations”), with the
Commission, a registration statement on Form S-3, including a base prospectus, relating to certain securities, including the Placement
Shares to be sold and issued from time to time by the Company, and which incorporates by reference documents that the Company has filed
or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
and the rules and regulations thereunder. The Company has prepared a prospectus supplement to the base prospectus included as part of
the Registration Statement, which prospectus supplement relates to the Placement Shares to be sold and issued from time to time by the
Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies
of the base prospectus included as part of the Registration Statement, as supplemented, by the Prospectus Supplement. The Company may
file one or more additional registration statements from time to time that will contain a base prospectus, which may be supplemented
by a prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where
the context otherwise requires, such registration statement(s), including all documents filed as part thereof or incorporated by reference
therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to
Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities
Act Regulations, is herein called the “Registration Statement.” The base prospectus or base prospectuses, including
all documents incorporated by reference therein, included in the Registration Statement, as it may be supplemented, as applicable, by
the Prospectus Supplement, in the form in which such base prospectus or base prospectuses and/or Prospectus Supplement have most recently
been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with any then Issuer
Free Writing Prospectus(es) (as defined below), is herein called the “Prospectus.”


 


Any
reference herein to the Registration Statement, any Prospectus Supplement, the Prospectus, or any Issuer Free Writing Prospectus shall
be deemed to refer to and include the documents, if any, incorporated by reference therein (the “Incorporated Documents”),
including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference
herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement,
any Prospectus Supplement, the Prospectus, or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of
any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of such Prospectus
Supplement, Prospectus or Issuer Free Writing Prospectus, as the case may be, and incorporated by reference therein. For purposes of
this Agreement, all references to the Registration Statement, the Prospectus, or to any amendment or supplement thereto shall be deemed
to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval system, or
if applicable, the Interactive Data Electronic Application system when used by the Commission (collectively, “EDGAR”).


 


2.
Placements. Each time that the Company wishes to sell and issue shares of Class A Common Stock and/or Series B Preferred Stock
as Placement Shares hereunder (each, a “Placement”), it will notify the Agent by email notice (or other method
mutually agreed to by the parties) of the number of shares of Class A Common Stock and/or Series B Preferred Stock to be sold and issued
as Placement Shares, the time period during which sales are requested to be made, any limitation on the number of shares of Class A Common
Stock and/or Series B Preferred Stock that may be sold in any one day as Placement Shares, and any minimum price below which sales may
not be made (a “Placement Notice”), the form of which is attached hereto as Schedule 1. The Placement
Notice shall originate from any of the individuals from the Company set forth on Schedule 3 attached hereto (with a copy to each
of the other individuals from the Company listed on such schedule), and shall be addressed to each of the individuals from the Agent
set forth on Schedule 3, as such Schedule 3 may be amended from time to time. The Placement Notice shall be effective unless
and until (i) the Agent declines to accept the terms contained therein for any reason, in its sole discretion, within two (2) Business
Days (as defined below) of receipt of such Placement Notice, (ii) the entire amount of the Placement Shares thereunder has been sold,
(iii) the Company amends, supersedes, suspends or terminates the Placement Notice, or (iv) this Agreement has been terminated under the
provisions of Section 12. The amount of any discount, commission or other compensation to be paid by the Company to the Agent
in connection with the sale of the Placement Shares shall be calculated in accordance with the terms set forth in Schedule 2 attached
hereto. It is expressly acknowledged and agreed that neither the Company nor the Agent will have any obligation whatsoever with respect
to a Placement or any Placement Shares unless and until the Company delivers a Placement Notice to the Agent, and the Agent does not
decline such Placement Notice pursuant to the terms set forth above, and then only upon the terms specified therein and herein. In the
event of a conflict between the terms of this Agreement and the terms of a Placement Notice, the terms of the Placement Notice will control.


 




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3.
Sale of Placement Shares by Agent. Subject to the provisions of Section 5(a), the Agent, for the period specified in the
Placement Notice, shall use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable
state and federal laws, rules and regulations and the rules of the Nasdaq Capital Market (the “Exchange”),
to sell the Placement Shares up to the amount specified, and otherwise in accordance with the terms of such Placement Notice. The Agent
shall provide written confirmation to the Company no later than the opening of the Trading Day (as defined below) immediately following
the Trading Day on which it has made sales of Placement Shares hereunder, setting forth the number of Placement Shares sold on such day,
the compensation payable by the Company to the Agent pursuant to Section 2 with respect to such sales, and the Net Proceeds (as
defined below) payable to the Company, with an itemization of the deductions made by the Agent (as set forth in Section 5(b))
from the gross proceeds that it receives from such sales. Subject to the terms of the Placement Notice, the Agent may sell Placement
Shares by any method permitted by law deemed to be an “at the market offering” as defined in Rule 415(a)(4) of the Securities
Act Regulations, including sales made directly on or through the Exchange or any other existing trading market for the Class A Common
Stock and/or Series B Preferred Stock, in negotiated transactions at market prices prevailing at the time of sale or at prices related
to such prevailing market prices, and/or any other method permitted by law. Notwithstanding the
foregoing, no sale may be made in a privately negotiated transaction without the prior written consent of the Company. As used herein,
“Trading Day” means any day on which the Class A Common Stock and Series B Preferred Stock are traded
on the Exchange.


 


4.
Suspension of Sales. The Company or the Agent may, upon notice to the other party in writing (including by email correspondence
to each of the individuals of the other party set forth on Schedule 3, if receipt of such correspondence is actually acknowledged
by any of the individuals to whom the notice is sent, other than via auto-reply) or by telephone (confirmed immediately by verifiable
facsimile transmission or email correspondence to each of the individuals of the other party set forth on Schedule 3), suspend
any sale of Placement Shares (a “Suspension”); provided, however, that such Suspension shall
not affect or impair any party’s obligations with respect to any Placement Shares sold hereunder prior to the receipt of such notice.
While a Suspension is in effect, any obligation under Sections 7(l), 7(m), and 7(n) with respect to the delivery
of certificates, opinions, or comfort letters to the Agent, shall be waived. Each of the parties agrees that no such notice under this
Section 4 shall be effective against any other party unless it is made to one of the individuals named on Schedule 3 hereto.
Notwithstanding any other provision of this Agreement, during any period in which the Company is in possession of material non-public
information, the Company and the Agent agree that (i) no sale of Placement Shares will take place, (ii) the Company shall not request
the sale of any Placement Shares, and (iii) the Agent shall not be obligated to sell or offer to sell any Placement Shares.


 




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5.
Sale and Delivery to the Agent; Settlement.


 


(a)
Sale of Placement Shares. On the basis of the representations and warranties contained herein and subject to the terms
and conditions set forth herein, upon the Company’s delivery of a Placement Notice pursuant to Section 2, and unless the
sale of the Placement Shares described therein has been declined, suspended, or otherwise terminated in accordance with the terms of
this Agreement, the Agent, for the period specified in the Placement Notice, shall use its commercially reasonable efforts consistent
with its normal trading and sales practices and applicable law and regulations to sell such Placement Shares up to the amount specified,
and otherwise in accordance with the terms of such Placement Notice. The Company acknowledges and agrees that (i) there can be no assurance
that the Agent will be successful in selling Placement Shares, (ii) the Agent will incur no liability or obligation to the Company or
any other person or entity if it does not sell Placement Shares for any reason, other than a failure by the Agent to use its commercially
reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Placement Shares
as required under this Agreement, and (iii) the Agent shall be under no obligation to purchase Placement Shares on a principal basis
pursuant to this Agreement, except as otherwise agreed by the Agent and the Company.


 


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


 


(c)
Delivery of Placement Shares. On or before each Settlement Date, the Company will, or will cause its transfer agent to, electronically
transfer such Placement Shares being sold by crediting the Agent’s or its designee’s account (provided the Agent shall have
given the Company written notice of such designee at least one Trading Day prior to the Settlement Date) at The Depository Trust Company
through its Deposit and Withdrawal at Custodian System, or by such other means of delivery as may be mutually agreed upon by the parties
hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form. On each Settlement Date,
the Agent will deliver the related Net Proceeds in same day funds to an account designated by the Company on, or prior to, the Settlement
Date. The Company agrees that if the Company, or its transfer agent (if applicable), defaults in its obligation to deliver Placement
Shares on a Settlement Date, in addition to and in no way limiting the rights and obligations set forth in Section 10(a) hereto,
it will (i) hold the Agent harmless against any loss, claim, damage, or expense (including reasonable and documented legal fees and expenses),
as incurred, arising out of or in connection with such default by the Company or its transfer agent (if applicable), and (ii) pay to
the Agent (without duplication) any commission, discount, or other compensation to which it would otherwise have been entitled absent
such default.


 


(d)
Denominations; Registration. Certificates for the Placement Shares, if any, shall be in such denominations and registered
in such names as the Agent may request in writing at least one full Business Day before the Settlement Date. The certificates for the
Placement Shares, if any, will be made available by the Company for examination and packaging by the Agent in The City of New York not
later than noon (New York time) on the Business Day prior to the Settlement Date.


 


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


 




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6.
Representations and Warranties of the Company. The Company represents and warrants to the Agent that as of the date of this Agreement
and as of each Applicable Time (as defined below) (unless such representation or warranty specifies a different time):


 


(a)
Filing of the Registration Statement.


 


(i)
Pursuant to the Securities Act. The Company has filed with the Commission the Registration Statement on Form S-3 (File No. 333-261365),
including any related prospectus or prospectuses, for the registration of the sale of the Placement Shares under the Securities Act of
1933, as amended (the “Securities Act”), which Registration Statement was prepared by the Company in all material
respects in conformity with the requirements of the Securities Act and the rules and regulations of the Commission under the Securities
Act (the “Securities Act Regulations”) and contains and will contain all material statements that are required to
be stated therein in accordance with the Securities Act and the Securities Act Regulations. The Registration Statement and the offer
and sale of the Placement Shares as contemplated hereby meet the requirements of Rule 415 under the Securities Act and comply in all
material respects with Rule 415 under the Securities Act. If the Company files any registration statement pursuant to Rule 462(b) of
the Securities Act Regulations, then after such filing, the term “Registration Statement” shall include such registration
statement filed pursuant to Rule 462(b). The Registration Statement was declared effective by the Commission on February 8, 2022.


 


(ii)
Pursuant to the Exchange Act. The Company has filed with the Commission a Form 8-A (Accession No. 001-38250) providing for the
registration pursuant to Section 12(b) under the Exchange Act of the shares of Class A Common Stock, and a Form 8-A (Accession No. 001-38250)
providing for the registration pursuant to Section 12(b) under the Exchange Act of the shares of Series B Preferred Stock. The registration
of the shares of Class A Common Stock and Series B Preferred Stock and the related Form 8-As have become effective under the Exchange
Act on or prior to the date hereof. The Company has taken no action designed to, or likely to have the effect of, terminating the registration
of the shares of Class A Common Stock and/or Series B Preferred Stock under the Exchange Act, nor has the Company received any notification
that the Commission is contemplating terminating such registration.


 


(iii)
Stock Exchange Listing. The shares of Class A Common Stock and Series B Preferred Stock have been approved for listing on the
Exchange, and the Company has taken no action designed to, or likely to have the effect of, delisting the shares of Class A Common Stock
and Series B Preferred Stock from the Exchange, nor has the Company received any notification that the Exchange is contemplating terminating
such listing except as described in the Prospectus. The Company has submitted the Listing of Additional Shares Notification Form with
the Exchange with respect to the Placement of the Placement Shares.


 


(iv)
No Stop Orders, etc. Neither the Commission nor, to the Company’s knowledge, any state regulatory authority has issued any
order preventing or suspending the use of the Registration Statement, or the Prospectus or has instituted or, to the Company’s
knowledge, threatened to institute, any proceedings with respect to such an order. The Company has complied with each request (if any)
from the Commission for additional information.


 


(b)
Disclosures in Registration Statement.


 


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


 




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


 


(iii)
Disclosure of Agreements. The agreements and documents described in the Registration Statement and the Prospectus conform in all
material respects to the descriptions thereof contained or incorporated by reference therein and there are no agreements or other documents
required by the Securities Act and the Securities Act Regulations to be described in the Registration Statement and the Prospectus or
to be filed with the Commission as exhibits to the Registration Statement or to be incorporated by reference in the Registration Statement
or the Prospectus, that have not been so described or filed or incorporated by reference. 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
or incorporated by reference in the Registration Statement and the Prospectus, 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 therefor may be brought. None of such agreements or instruments has been assigned by the Company,
and neither the Company nor, to the Company’s knowledge, any other party is in default thereunder and, to 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 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 Authority 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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(iv)
Regulations. The disclosures in the Registration Statement and the Prospectus concerning the effects of federal, state, local
and all foreign regulation on the Placement and the Company’s business as currently contemplated are correct in all material respects
and no other such regulations are required to be disclosed in the Registration Statement and the Prospectus which are not so disclosed.


 


(v)
No Other Distribution of Placement Materials. The Company has not, directly or indirectly, distributed and will not distribute
any offering material in connection with the Placement other than the Prospectus and any Issuer Free Writing Prospectus if any, permitted
under the Securities Act.


 


(c)
Changes After Dates in Registration Statement.


 


(i)
No Material Adverse Change. Since the respective dates as of which information is given in the Registration Statement and the
Prospectus, except as otherwise specifically stated therein: (i) there has been no material adverse change in the financial position
or results of operations of the Company, nor any change or development that, singularly or in the aggregate, would involve a material
adverse change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations,
business, assets or prospects of the Company (a “Material Adverse Change”); (ii) there have been no material transactions
entered into by the Company, other than as contemplated pursuant to this Agreement; and (iii) no officer or director of the Company has
resigned from any position with the Company.


 


(ii)
Recent Securities Transactions, etc. Subsequent to the respective dates as of which information is given in the Registration Statement
and the Prospectus, and except as may otherwise be indicated or contemplated herein or disclosed in the Registration Statement and the
Prospectus, the Company has not: (i) issued any 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.


 


(d)
Disclosures in Commission Filings. Since November 11, 2021, (i) the Company has made all filings with the Commission required
under the Exchange Act and the rules and regulations of the Commission promulgated thereunder (the “Exchange Act Regulations”),
and (ii) such filings conformed in all material respects to the requirements of the Exchange Act Regulations.


 


(e)
Independent Accountants. To the knowledge of the Company, Baker Tilly US, LLP (the “Auditor”), whose reports
are filed with the Commission and included or incorporated by reference in the Registration Statement and the Prospectus, is an independent
registered public accounting firm as required by the Securities Act and the Securities Act Regulations and the Public Company Accounting
Oversight Board. The Auditor has not, during the periods covered by the financial statements included or incorporated by reference in
the Registration Statement and the Prospectus, provided to the Company any non-audit services, as such term is used in Section 10A(g)
of the Exchange Act. To the knowledge of the Company, BDO USA, LLP (Dallas), BDO USA, LLP (Atlanta), and Crowe LLP, whose respective
reports are filed with the Commission and incorporated by reference in the Prospectus, are each independent public accountants as required
by the American Institute of Certified Public Accountants.


 




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(f)
Financial Statements, etc. The financial statements, including the notes thereto and supporting schedules included or incorporated
by reference in the Registration Statement and the Prospectus, fairly present the financial position and the results of operations of
the Company at the dates and for the periods to which they apply; and such financial statements have been prepared in conformity with
U.S. generally accepted accounting principles (“GAAP”), consistently applied throughout the periods involved (provided
that unaudited interim financial statements are subject to year-end audit adjustments that are not expected to be material in the aggregate
and do not contain all footnotes required by GAAP); and the supporting schedules included or incorporated by reference in the Registration
Statement present fairly the information required to be stated therein. No other historical or pro forma financial statements or supporting
schedules are required to be included in the Registration Statement or the Prospectus by the Securities Act or the Securities Act Regulations.
The pro forma financial statements and the related notes, if any, included or incorporated by reference in the Registration Statement
and the Prospectus have been properly compiled and prepared in accordance with the applicable requirements of the Securities Act, the
Securities Act Regulations, the Exchange Act or the Exchange Act Regulations and present fairly the information shown therein, and the
assumptions used in the preparation thereof are reasonable and the adjustments used therein are appropriate to give effect to the transactions
and circumstances referred to therein. All disclosures contained in the Registration Statement or the Prospectus, or incorporated or
deemed incorporated by reference therein, regarding “non-GAAP financial measures” (as such term is defined by the rules and
regulations of the Commission), if any, comply with Regulation G of the Exchange Act and Item 10 of Regulation S-K of the Securities
Act, to the extent applicable. Each of the Registration Statement and the Prospectus discloses all material off-balance sheet transactions,
arrangements, obligations (including contingent obligations), and other relationships of the Company with unconsolidated entities or
other persons that may have a material current or future effect on the Company’s financial condition, changes in financial condition,
results of operations, liquidity, capital expenditures, capital resources, or significant components of revenues or expenses. Except
as disclosed in the Registration Statement and the Prospectus, (a) neither the Company nor any of its direct and indirect subsidiaries,
including each entity disclosed or described in the Registration Statement and the Prospectus as being a subsidiary of the Company (each,
a “Subsidiary” and, collectively, the “Subsidiaries”), has incurred any material liabilities or
obligations, direct or contingent, or entered into any material transactions other than in the ordinary course of business, (b) the Company
has not declared or paid any dividends or made any distribution of any kind with respect to its capital stock, (c) there has not been
any change in the capital stock of the Company or any of its Subsidiaries, or, other than in the course of business, any grants under
any stock compensation plan, and (d) there has not been any Material Adverse Change in the Company’s long-term or short-term debt.


 


(g)
Authorized Capital; Options, etc. The Company had, at the date or dates indicated in the Registration Statement and the Prospectus,
the duly authorized, issued and outstanding capitalization as set forth therein. Except as set forth in, or contemplated by, the Registration
Statement and the Prospectus, as of the applicable date thereof, there was no stock options, warrants, or other rights to purchase or
otherwise acquire any authorized, but unissued shares of Class A Common Stock and/or Series B Preferred Stock or any security convertible
or exercisable into shares of Class A Common Stock and/or Series B Preferred Stock, or any contracts or commitments to issue or sell
shares of Class A Common Stock and/or Series B Preferred Stock or any such options, warrants, rights or convertible securities.


 


(h)
Valid Issuance of Securities, etc.


 


(i)
Outstanding Securities. All issued and outstanding securities of the Company issued prior to the transactions contemplated by
this Agreement have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights
of rescission or similar rights with respect thereto or put rights, and are not subject to personal liability by reason of being such
holders; and none of such securities were issued in violation of the preemptive rights, rights of first refusal or rights of participation
of any holders of any security of the Company or similar contractual rights granted by the Company. The authorized shares of Class A
Common Stock and Series B Preferred Stock conform in all material respects to all statements relating thereto contained in the Registration
Statement and the Prospectus. The offers and sales of the outstanding shares of Class A Common Stock and Series B Preferred Stock were
at all relevant times either registered under the Securities Act and the applicable state securities or “blue sky” laws or,
based in part on the representations and warranties of the purchasers of such Shares, exempt from such registration requirements.


 




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(ii)
Securities Sold Pursuant to this Agreement. The Placement Shares have been duly authorized for issuance and sale and, when issued
and paid for, will be validly issued, fully paid and non-assessable; the holders thereof are not and will not be subject to personal
liability by reason of being such holders; the Placement Shares are not and will not be subject to the preemptive rights of any holders
of any security of the Company or similar contractual rights granted by the Company; and all corporate action required to be taken for
the authorization, issuance and sale of the Placement Shares has been duly and validly taken. The Placement Shares conform in all material
respects to all statements with respect thereto contained in the Registration Statement and the Prospectus.


 


(i)
Registration Rights of Third Parties. Except as set forth in the Registration Statement and the Prospectus, (including any information
incorporated by reference), no holders of any securities of the Company or any rights exercisable for or convertible or exchangeable
into securities of the Company have the right to require the Company to register any such securities of the Company under the Securities
Act or to include any such securities in a registration statement to be filed by the Company.


 


(j)
Validity and Binding Effect of this Agreement. This Agreement has been duly and validly authorized by the Company, and, when executed
and delivered, will constitute, the valid and binding agreement of the Company, enforceable against the Company in accordance with its
terms, except: (i) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’
rights generally; (ii) as enforceability of any indemnification or contribution provision may be limited under the federal and state
securities laws; and (iii) 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 therefor may be brought.


 


(k)
No Conflicts, etc. The execution, delivery and performance by the Company of this Agreement and all ancillary documents, the sale
and issuance of the Placement Shares. the consummation by the Company of the transactions herein and therein contemplated and the compliance
by the Company with the terms hereof and thereof do not and will not, with or without the giving of notice or the lapse of time or both:
(i) result in a material breach of, or conflict with any of the terms and provisions of, or constitute a material default under, or result
in the creation, modification, termination or imposition of any lien, charge, mortgage, pledge, security interest, claim, equity, trust
or other encumbrance, preferential arrangement, defect or restriction of any kind whatsoever or encumbrance upon any property or assets
of the Company pursuant to the terms of any indenture, mortgage, deed of trust, note, lease, loan agreement or any other agreement or
instrument, franchise, license or permit to which the Company is a party or as to which any property of the Company is a party; (ii)
result in any violation of the provisions of the Company’s Second Amended and Restated Certificate of Incorporation (as the same
may be amended or restated from time to time, the “Charter”) or the by-laws of the Company (as the same may be amended
or restated from time to time); or (iii) violate any existing applicable law, rule, regulation, judgment, order or decree of any Governmental
Authority having jurisdiction over the Company as of the date hereof (including, without limitation, those promulgated by the Food and
Drug Administration of the U.S. Department of Health and Human Services (the “FDA”) or by any foreign, federal, state
or local regulatory authority performing functions similar to those performed by the FDA).


 




    	-9-



     


    

 


(l)
No Defaults; Violations. No material default exists in the due performance and observance of any term, covenant or condition of
any material license, contract, indenture, mortgage, deed of trust, note, loan or credit agreement, or any other agreement or instrument
evidencing an obligation for borrowed money, or any other material agreement or instrument to which the Company is a party or by which
the Company may be bound or to which any of the properties or assets of the Company is subject. The Company is not in violation of any
term or provision of its Charter or by-laws, or in violation of any franchise, license, permit, applicable law, rule, regulation, judgment
or decree of any Governmental Authority having jurisdiction over the Company.


 


(m)
Corporate Power; Licenses; Consents.


 


(i)
Conduct of Business. The Company has all requisite corporate power and authority, and has all necessary authorizations, approvals,
orders, licenses, certificates and permits of and from all governmental regulatory officials and bodies that it needs as of the date
hereof to conduct its business purpose as described in the Registration Statement and the Prospectus, except where the failure to have
such authorizations, approvals, orders, licenses, certificates and permits would not reasonably be expected to result in a Material Adverse
Change.


 


(ii)
Transactions Contemplated Herein. The Company has all corporate power and authority to enter into this Agreement and to carry
out the provisions and conditions hereof, and all consents, authorizations, approvals and orders required in connection therewith have
been obtained. No consent, authorization or order of, and no filing with, any court, government agency or other body is required for
the valid issuance, sale and delivery of the Placement Shares and the consummation of the transactions and agreements contemplated by
this Agreement and as contemplated by the Registration Statement and the Prospectus, except with respect to applicable federal and state
securities laws and the rules and regulations of the Exchange and the Financial Industry Regulatory Authority, Inc. (“FINRA”).


 


(n)
D&O Questionnaires. To the Company’s knowledge, all information contained in the questionnaires (the “Questionnaires”)
completed by each of the Company’s directors and officers immediately prior to the Placement (the “Insiders”),
as supplemented by all information concerning the Company’s directors, officers and principal shareholders as described in the
Registration Statement and the Prospectus is true and correct in all material respects and the Company has not become aware of any information
which would cause the information disclosed in the Questionnaires to become materially inaccurate and incorrect.


 


(o)
Litigation; Governmental Proceedings. There is no action, suit, proceeding, inquiry, arbitration, investigation, litigation or
governmental proceeding pending or, to the Company’s knowledge, threatened against, or involving the Company or, to the Company’s
knowledge, any executive officer or director which has not been disclosed in the Registration Statement and the Prospectus, or in connection
with the Company’s supplemental listing application for the listing of the Placement Shares on the Exchange, and which is required
to be disclosed.


 


(p)
Good Standing. Each of the Company and its subsidiaries has been duly organized and is validly existing as an entity in good standing
under the laws of its jurisdiction of organization. Each of the Company and its subsidiaries has full power and authority to own its
properties and conduct its business as currently being carried on and as described in the Company Registration Statement and the Prospectus,
and is duly qualified to do business as a foreign entity in good standing in each jurisdiction in which it owns or leases real property
or in which the conduct of its business makes such qualification necessary, except where the failure to so qualify would not reasonably
be expected to result in a Material Adverse Change.


 




    	-10-



     


    

 


(q)
Insurance. The Company and each of its subsidiaries carries, or is covered by, insurance from reputable insurers in such amounts
and covering such risks as is adequate for the conduct of its business and the value of its properties and the properties of its subsidiaries
and as is customary for companies engaged in similar businesses in similar industries; all material policies of insurance and any fidelity
or surety bonds insuring the Company or any of its subsidiaries or its business, assets, employees, officers and directors are in full
force and effect; the Company and its subsidiaries are in compliance with the terms of such policies and instruments in all material
respects; there are no material claims by the Company or any of its subsidiaries under any such policy or instrument as to which any
insurance company is denying liability or defending under a reservation of rights clause; neither the Company nor any of its subsidiaries
has been refused any material insurance coverage sought or applied for; and neither the Company nor any of its subsidiaries has 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 at a cost that would not result in a Material Adverse Change


 


(r)
Transactions Affecting Disclosure to FINRA.


 


(i)
Finder’s Fees. Except as described in the Registration Statement and the Prospectus, there are no claims, payments, arrangements,
agreements or understandings relating to the payment of a finder’s, consulting or origination fee by the Company or any Insider
with respect to the sale of the Placement Shares hereunder or any other arrangements, agreements or understandings of the Company or,
to the Company’s knowledge, any of its shareholders that may affect the Agent’s compensation, as determined by FINRA.


 


(ii)
Payments Within Twelve Months. Except as described in the Registration Statement and the Prospectus, the Company has not made
any direct or indirect payments (in cash, securities or otherwise) to: (i) any person, as a finder’s fee, consulting fee or otherwise,
in consideration of such person raising capital for the Company or introducing to the Company persons who raised or provided capital
to the Company; (ii) any FINRA member; or (iii) any person or entity that has any direct or indirect affiliation or association with
any FINRA member, within the twelve months prior to the date of this Agreement, other than the payment to the Agent as provided hereunder
in connection with the Placement.


 


(iii)
Use of Proceeds. None of the net proceeds of the Placement will be paid by the Company to any participating FINRA member or its
affiliates, except as specifically authorized herein.


 


(iv)
FINRA Affiliation. There is no (i) officer or director of the Company, (ii) beneficial owner of 5% or more of any class of the
Company’s securities or (iii) beneficial owner of the Company’s unregistered equity securities which were acquired during
the 180-day period immediately preceding the filing of the Registration Statement that is an affiliate or associated person of a FINRA
member participating in the Placement (as determined in accordance with the rules and regulations of FINRA). Except as disclosed in the
Registration Statement and the Prospectus, the Company (i) does not have any material lending or other relationship with any bank or
lending affiliate of the Agent, and (ii) does not intend to use any of the proceeds from the sale of the to repay any outstanding debt
owed to any affiliate of the Agent.


 


(v)
Information. All information provided by the Company in its FINRA questionnaire to Agent’s Counsel specifically for use
by the Agent’s counsel in connection with its Public Offering System filings (and related disclosure) with FINRA is true, correct
and complete in all material respects.


 




    	-11-



     


    

 


(s)
Foreign Corrupt Practices Act. None of the Company and its Subsidiaries or, to the Company’s knowledge, any director, officer,
agent, employee or affiliate of the Company and its Subsidiaries or any other person acting on behalf of the Company and its Subsidiaries,
has, directly or indirectly, given or agreed to give any money, gift or similar benefit (other than legal price concessions to customers
in the ordinary course of business) to any customer, supplier, employee or agent of a customer or supplier, or official or employee of
any governmental agency or instrumentality of any government (domestic or foreign) or any political party or candidate for office (domestic
or foreign) or other person who was, is, or may be in a position to help or hinder the business of the Company (or assist it in connection
with any actual or proposed transaction) that (i) might subject the Company to any damage or penalty in any civil, criminal or governmental
litigation or proceeding, (ii) if not given in the past, might have had a Material Adverse Change; (iii) if not continued in the future,
might adversely affect the assets, business, operations or prospects of the Company. 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 Foreign Corrupt
Practices Act of 1977, as amended, and the rules and regulations thereunder (collectively, the “FCPA”) or employee;
(iv) violated or is in violation of any provision of the FCPA or any applicable non-U.S. anti-bribery statute or regulation; (v) made
any bribe, rebate, payoff, influence payment, kickback or other unlawful payment; or (vi) received notice of any investigation, proceeding
or inquiry by any Governmental Authority having jurisdiction over the Company regarding any of the matters in clauses (i)-(v) above;
and the Company and, to the knowledge of the Company, the Company’s affiliates have conducted their respective businesses in compliance
with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue
to ensure, continued compliance therewith.


 


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


 


(u)
Forward-Looking Statements. No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section
21E of the Exchange Act) contained in either the Registration Statement or Prospectus has been made or reaffirmed without a reasonable
basis or has been disclosed other than in good faith.


 


(v)
Money Laundering Laws. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance
with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, the money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations
or guidelines, issued, administered or enforced by any Governmental Authority having jurisdiction over the Company (collectively, the
“Money Laundering Laws”); and no action, suit or proceeding by or before any Governmental Entity involving the Company
with respect to the Money Laundering Laws is pending or, to the best knowledge of the Company, threatened.


 


(w)
Subsidiaries. The Company’s ownership and control of each Subsidiary is as described in the Registration Statement and the
Prospectus.


 




    	-12-



     


    

 


(x)
Related Party Transactions.


 


(i)
Business Relationships. There are no business relationships or related party transactions involving the Company or any other person
required to be described in the Registration Statement and the Prospectus that have not been described as required.


 


(ii)
No Relationships with Customers and Suppliers. No relationship, direct or indirect, exists between or among the Company on the
one hand, and the directors, officers, 5% or greater stockholders, customers or suppliers of the Company or any of the Company’s
affiliates on the other hand, which is required to be described in the Prospectus or a document incorporated by reference therein and
which is not so described.


 


(iii)
No Unconsolidated Entities. There are no transactions, arrangements or other relationships between and/or among the Company, any
of its affiliates (as such term is defined in Rule 405 of the Securities Act) and any unconsolidated entity, including, but not limited
to, any structure finance, special purpose or limited purpose entity that could reasonably be expected to materially affect the Company’s
liquidity or the availability of or requirements for its capital resources required to be described in the Prospectus or a document incorporated
by reference therein which have not been described as required.


 


(iv)
No Loans or Advances to Affiliates. There are no outstanding loans, advances (except normal advances for business expenses in
the ordinary course of business) or guarantees or indebtedness by the Company to or for the benefit of any of the officers or directors
of the Company, any other affiliates of the Company or any of their respective family members, except as disclosed in the Registration
Statement and the Prospectus.


 


(y)
Board of Directors. The Board of Directors of the Company is comprised of the persons disclosed in the Registration Statement
and the Prospectus. The qualifications of the persons serving as board members and the overall composition of the board comply with the
Exchange Act, the Exchange Act Regulations, the Sarbanes-Oxley Act of 2002 and the rules promulgated thereunder (the “Sarbanes-Oxley
Act”) applicable to the Company and the listing rules of the Exchange. At least one member of the Audit Committee of the Board
of Directors of the Company qualifies as an “audit committee financial expert,” as such term is defined under Regulation
S-K and the listing rules of the Exchange. In addition, at least a majority of the persons serving on the Board of Directors qualify
as “independent,” as defined under the listing rules of the Exchange.


 


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


 


(aa)
Sarbanes-Oxley Compliance.


 


(i)
Disclosure Controls. The Company has developed and currently maintains disclosure controls and procedures that will comply with
Rule 13a-15 or 15d-15 under the Exchange Act Regulations, and such controls and procedures are effective to ensure that all material
information concerning the Company will be made known on a timely basis to the individuals responsible for the preparation of the Company’s
Exchange Act filings and other public disclosure documents.


 


(ii)
Compliance. The Company is, and at each Applicable Time will be, in material compliance with the provisions of the Sarbanes-Oxley
Act applicable to it, and has implemented or will implement such programs and taken reasonable steps to ensure the Company’s future
compliance (not later than the relevant statutory and regulatory deadlines therefor) with all of the material provisions of the Sarbanes-Oxley
Act.


 




    	-13-



     


    

 


(bb)
Accounting Controls. The Company and its Subsidiaries maintain systems of “internal control over financial reporting”
(as defined under Rules 13a-15 and 15d-15 under the Exchange Act Regulations) that comply with the requirements of the Exchange Act and
have been designed by, or under the supervision of, their respective principal executive and principal financial officers, or persons
performing similar functions, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of
financial statements for external purposes in accordance with GAAP, including, but not limited to, 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 disclosed in the Registration Statement and the Prospectus, the Company is not aware of any
material weaknesses in its internal controls. The Company’s auditors and the Audit Committee of the Board of Directors of the Company
have been advised of: (i) all significant deficiencies and material weaknesses in the design or operation of internal controls over financial
reporting which are known to the Company’s management and that have adversely affected or are reasonably likely to adversely affect
the Company’ ability to record, process, summarize and report financial information; and (ii) any fraud known to the Company’s
management, whether or not material, that involves management or other employees who have a significant role in the Company’s internal
controls over financial reporting. Since the date of the latest audited financial statements included in the Prospectus, there has been
no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially
affect, the Company’s internal control over financial reporting.


 


(cc)
No Investment Company Status. The Company is not and, after giving effect to the Placement and the application of the proceeds
thereof as described in the Registration Statement and the Prospectus, will not be, required to register as an “investment company,”
as defined in the Investment Company Act of 1940, as amended.


 


(dd)
No Labor Disputes. No labor dispute with the employees of the Company or any of its Subsidiaries exists or, to the knowledge of
the Company, is imminent.


 




    	-14-



     


    

 


(ee)
Intellectual Property Rights. The Company and each of its Subsidiaries owns or possesses or has valid rights to use all patents,
patent applications, trademarks, service marks, trade names, trademark registrations, service mark registrations, copyrights, licenses,
inventions, trade secrets and similar rights (“Intellectual Property Rights”) necessary for the conduct of the business
of the Company and its Subsidiaries as currently carried on and as described in the Registration Statement and the Prospectus. To the
knowledge of the Company, no action or use by the Company or any of its Subsidiaries necessary for the conduct of its business as currently
carried on and as described in the Registration Statement and the Prospectus will involve or give rise to any infringement of, or license
or similar fees (other than license or similar fees described or contemplated in the Registration Statement and the Prospectus) for,
any Intellectual Property Rights of others. Except as would not reasonably be expected to result, individually or in the aggregate, in
a Material Adverse Change, (i) neither the Company nor any of its Subsidiaries has received any notice alleging any such infringement
of, license or similar fees for, or conflict with, any asserted Intellectual Property Rights of others, (ii) to the knowledge of the
Company, there is no infringement, misappropriation or violation by third parties of any of the Intellectual Property Rights owned by
the Company; (iii) there is no pending or, to the knowledge of the Company, threatened action, suit, proceeding or claim by others challenging
the rights of the Company in or to any such Intellectual Property Rights, and the Company is unaware of any facts which would form a
reasonable basis for any such claim, that would, individually or in the aggregate, together with any other claims in this Section 2.35,
reasonably be expected to result in a Material Adverse Change; (iv) the Intellectual Property Rights owned by the Company and, to the
knowledge of the Company, the Intellectual Property Rights licensed to the Company have not been adjudged by a court of competent jurisdiction
invalid or unenforceable, in whole or in part, and there is no pending or, to the Company’s knowledge, threatened action, suit,
proceeding or claim by others challenging the validity or scope of any such Intellectual Property Rights, and the Company is unaware
of any facts which would form a reasonable basis for any such claim that would, individually or in the aggregate, together with any other
claims in this Section 2.35, reasonably be expected to result in a Material Adverse Change; (v) there is no pending or, to the Company’s
knowledge, threatened action, suit, proceeding or claim by others that the Company infringes, misappropriates or otherwise violates any
Intellectual Property Rights or other proprietary rights of others, the Company has not received any written notice of such claim and
the Company is unaware of any other facts which would form a reasonable basis for any such claim that would, individually or in the aggregate,
together with any other claims in this Section 2.35, reasonably be expected to result in a Material Adverse Change; and (vi) to the Company’s
knowledge, no employee of the Company is in or has ever been in violation in any material respect of any term of any employment contract,
patent disclosure agreement, invention assignment agreement, non-competition agreement, non-solicitation agreement, nondisclosure agreement
or any restrictive covenant to or with a former employer where the basis of such violation relates to such employee’s employment
with the Company, or actions undertaken by the employee while employed with the Company and could reasonably be expected to result, individually
or in the aggregate, in a Material Adverse Change. To the Company’s knowledge, all material technical information developed by
and belonging to the Company which has not been disclosed in a filed patent application has been kept confidential. The Company is not
a party to or bound by any options, licenses or agreements with respect to the Intellectual Property Rights of any other person or entity
that are required to be set forth in the Registration Statement and the Prospectus and are not described therein. The Registration Statement
and the Prospectus contain in all material respects the same description of the matters set forth in the preceding sentence. None of
the technology employed by the Company has been obtained or is being used by the Company in violation of any contractual obligation binding
on the Company or, to the Company’s knowledge, any of its officers, directors or employees, or otherwise in violation of the rights
of any persons.


 


All
licenses for the use of the Intellectual Property described in the Registration Statement and the Prospectus are in full force and effect
in all material respects and are enforceable by the Company and, to the Company’s knowledge, the other parties thereto, in accordance
with their 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 therefor may be brought. None of such
agreements or instruments has been assigned by the Company, and the Company has not, and to the Company’s knowledge, no other party
is in default thereunder and no event has occurred that, with the lapse of time or the giving of notice, or both, would constitute a
default thereunder.


 




    	-15-



     


    

 


(ff)
Privacy and Data Protection. The Company has operated its business in a manner compliant in all material respects with all United
States federal, state, local and non-United States privacy, data security and data protection laws and regulations applicable to the
Company’s collection, use, transfer, protection, disposal, disclosure, handling, storage and analysis of personal data. The Company
has been and is in compliance in all material respects with internal policies and procedures designed to ensure the integrity and security
of the data collected, handled or stored in connection with its business. The Company has taken commercially reasonable steps to maintain
the confidentiality of its personally identifiable information, consumer information and other confidential information of the Company
and any third parties in its possession (“Sensitive Company Data”). The tangible or digital information technology
systems (including computers, screens, servers, workstations, routers, hubs, switches, networks, data communications lines, technical
data and hardware), software and telecommunications systems used or held for use by the Company (the “Company IT Assets”)
are in all material respects adequate and operational for, in accordance with their documentation and functional specifications, the
business of the Company as now operated and as currently proposed to be conducted as described in the Company Registration Statement
and in the Prospectus. The Company has used commercially reasonable efforts to establish, and has established, commercially reasonable
disaster recovery and security plans, procedures and facilities for the business consistent with industry standards and practices in
all material respects, including, without limitation, for the Company IT Assets and data held or used by or for the Company. To the Company’s
knowledge, the Company has not suffered or incurred any security breaches, compromises or incidents with respect to any Company IT Asset
or Sensitive Company Data, except where such breaches, compromises or incidents would not reasonably be expected to, singly or in the
aggregate, result in a Material Adverse Change; and there has been no unauthorized or illegal use of or access to any Company IT Asset
or Sensitive Company Data by any unauthorized third party, except where such unauthorized or illegal use or access would not reasonably
be expected to, individually or in the aggregate, have a Material Adverse Change. The Company has not been required to notify any individual
of any information security breach, compromise or incident involving Sensitive Company Data.


 


(gg)
Taxes. Each of the Company and its Subsidiaries has filed all returns (as hereinafter defined) required to be filed with taxing
authorities prior to the date hereof or has duly obtained extensions of time for the filing thereof. Each of the Company and its Subsidiaries
has paid all taxes (as hereinafter defined) shown as due on such returns that were filed and has paid all taxes imposed on or assessed
against the Company or such respective Subsidiary. 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. Except as disclosed in writing to the Agent, (i) no issues have
been raised (and are currently pending) by any taxing authority in connection with any of the returns or taxes asserted as due from the
Company or its Subsidiaries, and (ii) no waivers of statutes of limitation with respect to the returns or collection of taxes have been
given by or requested from the Company or its Subsidiaries. The term “taxes” means 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 whatever, 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.


 


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


 




    	-16-



     


    

 


(ii)
ERISA Compliance. The Company and any “employee benefit plan” (as defined under the Employee Retirement Income Security
Act of 1974, as amended, and the regulations and published interpretations thereunder (collectively, “ERISA”)) established
or maintained by the Company or its “ERISA Affiliates” (as defined below) are in compliance in all material respects with
ERISA. “ERISA Affiliate” means, with respect to the Company, any member of any group of organizations described in
Sections 414(b), (c), (m) or (o) of the Internal Revenue Code of 1986, as amended, and the regulations and published interpretations
thereunder (the “Code”) of which the Company is a member. No “reportable event” (as defined under ERISA)
has occurred or is reasonably expected to occur with respect to any “employee benefit plan” established or maintained by
the Company or any of its ERISA Affiliates. No “employee benefit plan” established or maintained by the Company or any of
its ERISA Affiliates, if such “employee benefit plan” were terminated, would have any “amount of unfunded benefit liabilities”
(as defined under ERISA). Neither the Company nor any of its ERISA Affiliates has incurred or reasonably expects to incur any material
liability under (i) Title IV of ERISA with respect to termination of, or withdrawal from, any “employee benefit plan” or
(ii) Sections 412, 4971, 4975 or 4980B of the Code. Each “employee benefit plan” established or maintained by the Company
or any of its ERISA Affiliates that is intended to be qualified under Section 401(a) of the Code is so qualified and, to the knowledge
of the Company, nothing has occurred, whether by action or failure to act, which would cause the loss of such qualification.


 


(jj)
Compliance with Laws. The Company: (i) is and at all times has been in compliance with all statutes, rules, or regulations applicable
to the ownership, testing, development, manufacture, packaging, processing, use, distribution, marketing, labeling, promotion, sale,
offer for sale, storage, import, export storage or disposal of any product manufactured or distributed by the Company (“Applicable
Laws”), except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Change; (ii)
has not received notices from any other Governmental Authority alleging or asserting noncompliance with any Applicable Laws or any licenses,
certificates, approvals, clearances, authorizations, permits and supplements or amendments thereto required by any such Applicable Laws
(“Authorizations”); (iii) possesses all material Authorizations and such Authorizations are valid and in full force
and effect and are not in material violation of any term of any such Authorizations; (iv) has not received written notice of any claim,
action, suit, proceeding, hearing, enforcement, investigation, arbitration or other action from any Governmental Authority or third party
alleging that any product operation or activity is in violation of any Applicable Laws or Authorizations and has no knowledge that any
such Governmental Authority or third party is considering any such claim, litigation, arbitration, action, suit, investigation or proceeding;
(v) has not received written notice that any Governmental Authority has taken, is taking or intends to take action to limit, suspend,
modify or revoke any Authorizations and has no knowledge that any such Governmental Authority is considering such action; (vi) has filed,
obtained, maintained or submitted all material reports, documents, forms, notices, applications, records, claims, submissions and supplements
or amendments as required by any Applicable Laws or Authorizations and that all such reports, documents, forms, notices, applications,
records, claims, submissions and supplements or amendments were complete and correct in all material respects on the date filed (or were
corrected or supplemented by a subsequent submission); and (vii) has not, either voluntarily or involuntarily, initiated, conducted,
or issued or caused to be initiated, conducted or issued, any recall, market withdrawal or replacement, safety alert, post-sale warning,
“dear doctor” letter, or other notice or action relating to the alleged lack of safety or efficacy of any product or any
alleged product defect or violation and, to the Company’s knowledge, no third party has initiated, conducted or intends to initiate
any such notice or action.


 




    	-17-



     


    

 


(kk)
Environmental Laws. The Company and its Subsidiaries are in compliance with all foreign, federal, state and local rules, laws
and regulations relating to the use, treatment, storage and disposal of hazardous or toxic substances or waste and protection of health
and safety or the environment which are applicable to their businesses (“Environmental Laws”), except where the failure
to comply would not, singularly or in the aggregate, result in a Material Adverse Change. Except as set forth in the Registration Statement
and the Prospectus, there has been no storage, generation, transportation, handling, treatment, disposal, discharge, emission, or other
release of any kind of toxic or other wastes or other hazardous substances by, due to, or caused by the Company or any of its Subsidiaries
(or, to the Company’s knowledge, any other entity for whose acts or omissions the Company or any of its Subsidiaries is or may
otherwise be liable) upon any of the property now or previously owned or leased by the Company or any of its Subsidiaries, or upon any
other property, in violation of any law, statute, ordinance, rule, regulation, order, judgment, decree or permit or which would, under
any law, statute, ordinance, rule (including rule of common law), regulation, order, judgment, decree or permit, give rise to any liability;
and there has been no disposal, discharge, emission or other release of any kind onto such property or into the environment surrounding
such property of any toxic or other wastes or other hazardous substances with respect to which the Company has knowledge. In the ordinary
course of business, the Company and its Subsidiaries conduct periodic reviews of the effect of Environmental Laws on their business and
assets, in the course of which they identify and evaluate associated costs and liabilities (including, without limitation, any capital
or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws or governmental permits
issued thereunder, any related constraints on operating activities and any potential liabilities to third parties). On the basis of such
reviews, the Company and its Subsidiaries have reasonably concluded that such associated costs and liabilities would not have, singularly
or in the aggregate, a Material Adverse Change.


 


(ll)
Real Property. Except as set forth in the Registration Statement and the Prospectus, the Company and each of its Subsidiaries
have good and marketable title in fee simple to, or have valid rights to lease or otherwise use, all items of real or personal property
which are material to the business of the Company and its Subsidiaries taken as a whole, in each case free and clear of all liens, encumbrances,
security interests, claims and defects that do not, singly or in the aggregate, materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by the Company or any of its Subsidiaries; and all of the leases
and subleases material to the business of the Company and its subsidiaries, considered as one enterprise, and under which the Company
or any of its subsidiaries holds properties described in the Registration Statement and the Prospectus, are in full force and effect,
and neither the Company nor any Subsidiary has received any notice of any material claim of any sort that has been asserted by anyone
adverse to the rights of the Company or any Subsidiary under any of the leases or subleases mentioned above, or affecting or questioning
the rights of the Company or such Subsidiary to the continued possession of the leased or subleased premises under any such lease or
sublease.


 


(mm)
Contracts Affecting Capital. There are no transactions, arrangements or other relationships between and/or among the Company,
any of its affiliates (as such term is defined in Rule 405 of the Securities Act Regulations) and any unconsolidated entity, including,
but not limited to, any structured finance, special purpose or limited purpose entity that could reasonably be expected to materially
affect the Company’s or any of its Subsidiaries’ liquidity or the availability of or requirements for their capital resources
required to be described or incorporated by reference in the Registration Statement and the Prospectus which have not been described
or incorporated by reference as required.


 


(nn)
Ineligible Issuer. At the time of filing the Registration Statement and any post-effective amendment thereto, at the time of effectiveness
of the Registration Statement and any amendment thereto, at the earliest time thereafter that the Company or another offering participant
made a bona fide offer (within the meaning of Rule 164(h)(2) of the Securities Act Regulations) of the Placement Shares, and at the date
hereof, 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.


 


(oo)
Industry Data. The statistical and market-related data included in each of the Registration Statement and the Prospectus are based
on or derived from sources that the Company reasonably and in good faith believes are reliable and accurate or represent the Company’s
good faith estimates that are made on the basis of data derived from such sources.


 


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


 




    	-18-



     


    

 


(qq)
Margin Securities. The Company owns no “margin securities” as that term is defined in Regulation U of the Board of
Governors of the Federal Reserve System (the “Federal Reserve Board”), and none of the proceeds of the Placement will
be used, directly or indirectly, for the purpose of purchasing or carrying any margin security, for the purpose of reducing or retiring
any indebtedness which was originally incurred to purchase or carry any margin security or for any other purpose which might cause any
of the shares of Class A Common Stock and Series B Preferred Stock to be considered a “purpose credit” within the meanings
of Regulation T, U or X of the Federal Reserve Board.


 


(rr)
Exchange Act Reports. The Company has filed in a timely manner all reports required to be filed pursuant to Sections 13(a), 13(e),
14 and 15(d) of the Exchange Act during the preceding 12 months (except to the extent that Section 15(d) requires reports to be filed
pursuant to Sections 13(d) and 13(g) of the Exchange Act, which shall be governed by the next clause of this sentence); and the Company
has filed in a timely manner all reports required to be filed pursuant to Sections 13(d) and 13(g) of the Exchange Act since December
6, 2012, except where the failure to timely file could not reasonably be expected, individually or in the aggregate, to have a Material
Adverse Change.


 


(ss)
Minute Books. The minute books of the Company have been made available to the Agent and its counsel, and such books (i) contain
a complete summary of all meetings and actions of the board of directors (including each board committee) and stockholders of the Company
(or analogous governing bodies and interest holders, as applicable), and each of its Subsidiaries since the time of its respective incorporation
or organization through the date of the latest meeting and action, and (ii) accurately in all material respects reflect all transactions
referred to in such minutes. There are no material transactions, agreements, dispositions or other actions of the Company that are not
properly approved and/or accurately and fairly recorded in the minute books of the Company, as applicable.


 


(tt)
Integration. Neither the Company, nor any of its affiliates, nor any person acting on its or their behalf has, directly or indirectly,
made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would cause the Placement
to be integrated with prior offerings by the Company for purposes of the Securities Act that would require the registration of any such
securities under the Securities Act.


 


(uu)
No Stabilization. Neither the Company nor, to its knowledge, any of its employees, directors or stockholders (without the consent
of the Agent) has taken or shall take, directly or indirectly, any action designed to or that has constituted or that might reasonably
be expected to cause or result in, under Regulation M of the Exchange Act, or otherwise, stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of the Placement Shares.


 


(vv)
Confidentiality and Non-Competition. To the Company’s knowledge, no director, officer, key employee or consultant of the
Company is subject to any confidentiality, non-disclosure, non-competition agreement or non-solicitation agreement with any employer
or prior employer that could reasonably be expected to materially affect his ability to be and act in his respective capacity of the
Company or be expected to result in a Material Adverse Change.


 


(ww)
No Misstatement or Omission in an Issuer Free Writing Prospectus. Each Issuer Free Writing Prospectus, as of its issue date and
as of each Applicable Time (as defined in Section 23 below), did not, does not and will not include any information that conflicted,
conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any incorporated
document deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in
or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by
the Agent specifically for use therein.


 




    	-19-



     


    

 


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


 


(yy)
Cyber Security. Except as may be included or incorporated by reference in the Registration Statement and the Prospectus, (i) to
the Company’s knowledge, there has been no material security breach or other material compromise of or relating to any of the Company’s
information technology and computer systems, networks, hardware, software, data (including the data of their respective customers, employees,
suppliers, vendors and any third party data maintained by or on behalf of them), equipment or technology (collectively, “IT
Systems and Data”) and none that would result in a legal or contractual obligation of the Company to notify any other person
about such occurrence; (ii) the Company has not been notified of, and has no knowledge of any event or condition that would reasonably
be expected to result in, any material security breach or other material compromise to their IT Systems and Data; (iii) the Company is
presently in compliance with all material applicable laws or statutes and all judgments, orders, rules and regulations of any court or
arbitrator or governmental or regulatory authority, and contractual obligations relating to the privacy and security of IT Systems and
Data and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation or modification, except as would
not, in the case of this clause (iii), individually or in the aggregate, result in a Material Adverse Change; and (iv) the Company has
implemented backup and disaster recovery technology consistent with the requirements set forth in the Company’s insurance policies.


 


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


 


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


 


(a)
Registration Statement Amendments. After the date of this Agreement and during any period in which a Prospectus relating to any
Placement Shares is required to be delivered by the Agent under the Securities Act (including in circumstances where such requirement
may be satisfied pursuant to Rule 172 under the Securities Act or similar rule), the Company (i) will notify the Agent promptly of the
time when any subsequent amendment to the Registration Statement (other than documents incorporated by reference therein) has been filed
with the Commission and/or has become effective, or any subsequent supplement to the Prospectus (other than documents incorporated by
reference therein) has been filed, and of any request by the Commission for any amendment or supplement to the Registration Statement
or Prospectus or for additional information, in each case, that relates to the Placement of Placement Shares under this Agreement, (ii)
will prepare and file with the Commission, promptly upon the Agent’s request, any amendments or supplements to the Registration
Statement or Prospectus that, in the Agent’s reasonable opinion, may be necessary or advisable in connection with the distribution
of the Placement Shares by the Agent (provided, however, that the failure of the Agent to make such request shall not relieve
the Company of any obligation or liability hereunder, or affect the Agent’s right to rely on the representations and warranties
made by the Company in this Agreement and provided, further, however, that the only remedy the Agent shall have
with respect to the failure to make such filing shall be to cease making sales under this Agreement until such amendment or supplement
is filed); (iii) will not file any amendment or supplement to the Registration Statement or Prospectus relating to the Placement Shares
or a security convertible into the Placement Shares (other than documents incorporated by reference therein) unless a copy thereof has
been provided to Agent within a reasonable period of time before the filing and the Agent has not reasonably objected thereto within
two (2) Business Days following its receipt (provided, however, that (A) the failure of the Agent to make such objection
shall not relieve the Company of any obligation or liability hereunder, or affect the Agent’s right to rely on the representations
and warranties made by the Company in this Agreement, and (B) the Company has no obligation to provide the Agent with any advance copy
of such filing or to provide the Agent an opportunity to object to such filing, if such filing does not name the Agent, does not reference
the transactions contemplated hereunder, and does not constitute a supplement to the Prospectus, and provided, further,
however, that the only remedy the Agent shall have with respect to the failure by the Company to provide the Agent with any advance
copy of such filing shall be to cease making sales under this Agreement), (iv) will furnish to the Agent at the time of filing thereof
a copy of any document that upon filing is deemed to be incorporated by reference into the Registration Statement or Prospectus, except
for those documents available via EDGAR; and (v) will cause each amendment or supplement to the Prospectus to be filed with the Commission
as required pursuant to the applicable paragraph of Rule 424(b) of the Securities Act or, in the case of any document to be incorporated
by reference therein, to be filed with the Commission as required pursuant to the Exchange Act, within the time period prescribed. The
determination to file or not file any amendment or supplement with the Commission under this Section 7(a), based on the Company’s
reasonable opinion or reasonable objections, shall be made exclusively by the Company.


 




    	-20-



     


    

 


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


 


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


 


(d)
Listing of Placement Shares. Prior to the date of the first Placement Notice, the Company will use its commercially reasonable
efforts to cause the Placement Shares to be listed on the Exchange.


 




    	-21-



     


    

 


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


 


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


 


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


 


(h)
Notice of Other Sales. Without the prior written consent of the Agent (such consent not to be unreasonably withheld, conditioned
or delayed), the Company will not, directly or indirectly, offer to sell, sell, contract to sell, grant any option to sell or otherwise
dispose of any shares of Class A Common Stock or Series B Preferred Stock (other than the Placement Shares offered pursuant to this Agreement),
securities convertible into or exchangeable for shares of Class A Common Stock or Series B Preferred Stock, or warrants or any rights
to purchase or acquire shares of Class A Common Stock or Series B Preferred Stock during the period beginning on the fifth (5th)
Trading Day immediately prior to the date on which any Placement Notice is delivered to Agent hereunder and ending on the fifth (5th)
Trading Day immediately following the final Settlement Date with respect to such Placement Shares sold pursuant to such Placement Notice
(or, if such Placement Notice has been terminated or suspended prior to the sale of all Placement Shares covered by such Placement Notice,
the date of such suspension or termination); and will not directly or indirectly in any other “at the market” or continuous
equity transaction offer to sell, sell, contract to sell, grant any option to sell, or otherwise dispose of any shares of Class A Common
Stock or Series B Preferred Stock (other than the Placement Shares offered pursuant to this Agreement), securities convertible into or
exchangeable for shares of Class A Common Stock or Series B Preferred Stock, or warrants or any rights to purchase or acquire shares
of Class A Common Stock or Series B Preferred Stock prior to the termination of this Agreement; provided, however, that
the foregoing restrictions will not be imposed on the Company in connection with the Company’s issuance or sale of (i) Class A
Common Stock or Series B Preferred Stock, options to purchase Class A Common Stock or Series B Preferred Stock, other equity awards,
or Class A Common Stock or Series B Preferred Stock issuable upon the exercise of options, pursuant to any equity compensation plan,
employee or director stock option or benefits plan, stock ownership plan, employee stock purchase plan, or dividend reinvestment plan
(but not Class A Common Stock or Series B Preferred Stock subject to a waiver to exceed plan limits in its dividend reinvestment plan)
of the Company whether now in effect or hereafter implemented, (ii) Class A Common Stock or Series B Preferred Stock issuable upon conversion
of securities or the exercise of warrants, options or other rights in effect or outstanding, and disclosed in filings by the Company
available on EDGAR or otherwise in writing to the Agent, and (iii) Class A Common Stock or Series B Preferred Stock or securities convertible
into or exchangeable for shares of Class A Common Stock or Series B Preferred Stock as consideration for mergers, acquisitions, other
business combinations or strategic alliances occurring after the date of this Agreement which are not issued for capital raising purposes.


 




    	-22-



     


    

 


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


 


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


 


(k)
Required Filings Relating to Placement of Placement Shares. The Company shall disclose, in its quarterly reports on Form 10-Q
and in its annual report on Form 10-K to be filed by the Company with the Commission from time to time, the number of the Placement Shares
sold through the Agent under this Agreement, and the net proceeds to the Company from the sale of the Placement Shares pursuant to this
Agreement during the relevant quarter or, in the case of an Annual Report on Form 10-K, during the fiscal year covered by such Annual
Report and the fourth quarter of such fiscal year.


 


(l)
Representation Dates; Certificate. On or prior to the date of the first Placement Notice and each time the Company:


 


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


 


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


 


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


 


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


 


the
Company shall furnish the Agent (but in the case of clause (iv) above only if the Agent reasonably determines that the information contained
in such Form 8-K is material) with a certificate dated such Representation Date, in the form and substance satisfactory to the Agent
and its counsel, substantially similar to the form attached hereto as Exhibit 7(l), modified, as necessary, to relate to the Registration
Statement and the Prospectus as amended or supplemented. The requirement to provide a certificate under this Section 7(l) shall
be automatically waived for any Representation Date occurring (A) at a time a Suspension is in effect, which waiver shall continue until
the earlier to occur of (x) the date the Company delivers a Placement Notice hereunder (which for such calendar quarter shall be considered
a Representation Date), and (y) the next occurring Representation Date, and (B) at a time during which no Placement Notice is pending,
which waiver shall continue until the date on which the Company delivers a Placement Notice hereunder (which for such calendar quarter
shall be considered a Representation Date). Notwithstanding the foregoing, if the Company subsequently decides to sell Placement Shares
following a Representation Date when the Company did not provide the Agent with a certificate under this Section 7(l), then before
the Company delivers a Placement Notice or the Agent sells any Placement Shares pursuant to such Placement Notice, the Company shall
provide the Agent with a certificate in conformity with this Section 7(l) dated as of the date that such Placement Notice is issued.


 




    	-23-



     


    

 


 


(m)
Legal Opinion. (i) On or prior to the date of the first Placement Notice, and (ii) within five (5) Trading Days of each Representation
Date with respect to which the Company is obligated to deliver a certificate pursuant to Section 7(l) for which no waiver is applicable
and excluding the date of this Agreement, the Company shall cause to be furnished to the Agent a written opinion and negative assurance
letter of Greenberg Traurig, LLP or such other counsel satisfactory to the Agent (“Company Counsel”), addressed
to the Agent, in form and substance satisfactory to the Agent and its counsel, and substantially similar to the form previously provided
to the Agent and its counsel, modified, as necessary, to relate to the Registration Statement and the Prospectus as then amended or supplemented;
provided, however, that the Company shall not be required to furnish to the Agent more than one opinion hereunder per calendar
quarter; and provided, further, however, that in lieu of such opinions for subsequent Representation Dates, Company
Counsel may furnish the Agent with a letter (a “Reliance Letter”) to the effect that the Agent may rely on
a prior opinion delivered under this Section 7(m) to the same extent as if it were dated the date of such Reliance Letter (except
that statements in such prior opinion shall be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented
as of the date of such Reliance Letter).


 


(n)
Comfort Letter. (i) On or prior to the date of the first Placement Notice, and (ii) within five (5) Trading Days of each Representation
Date with respect to which the Company is obligated to deliver a certificate pursuant to Section 7(l) for which no waiver is applicable
and excluding the date of this Agreement, the Company shall cause its independent registered public accounting firm to furnish the Agent
with letters (the “Comfort Letters”), dated the date the Comfort Letter is delivered, which shall meet the
requirements set forth in this Section 7(n); provided, that if requested by the Agent, the Company shall cause a Comfort
Letter to be furnished to the Agent within ten (10) Trading Days of the date of occurrence of any material transaction or event requiring
the filing by the Company of a Current Report on Form 8-K containing material financial information, including the restatement of the
Company’s financial statements. The Comfort Letter from the Company’s independent registered public accounting firm shall
be in a form and substance satisfactory to the Agent, (A) confirming that they are an independent registered public accounting firm within
the meaning of the Securities Act and the PCAOB, (B) stating, as of such date, the conclusions and findings of such firm with respect
to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters
in connection with registered public offerings (the first such letter, the “Initial Comfort Letter”), and (C)
updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given
on such date and modified as necessary to relate to the Registration Statement and the Prospectus, as amended and supplemented to the
date of such letter.


 


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


 


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


 




    	-24-



     


    

 


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


 


(r)
Blue Sky and Other Qualifications. The Company will use its commercially reasonable efforts, in cooperation with the Agent,
to qualify the Placement Shares for offering and sale, or to obtain an exemption for the Placement Shares to be offered and sold, under
the applicable securities laws of such states and other jurisdictions (domestic or foreign) as the Agent may designate and to maintain
such qualifications and exemptions in effect for so long as required for the distribution of the Placement Shares (but in no event for
less than one year from the date of this Agreement); provided, however, that the Company shall not be obligated to file
any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in
which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise
so subject. In each jurisdiction in which the Placement Shares have been so qualified or exempt, the Company will file such statements
and reports as may be required by the laws of such jurisdiction to continue such qualification or exemption, as the case may be, in effect
for so long as required for the distribution of the Placement Shares (but in no event for less than one year from the date of this Agreement).


 


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


 


(t)
Secretary’s Certificate; Further Documentation. On or prior to the date of the first Placement Notice, the Company shall
deliver to the Agent a certificate of the Secretary of the Company and attested to by an executive officer of the Company, dated as of
such date, certifying as to (i) the Certificate of Incorporation of the Company, (ii) the Bylaws of the Company, (iii) the resolutions
of the Board of Directors of the Company authorizing the execution, delivery and performance of this Agreement and the issuance of the
Placement Shares, and (iv) the incumbency of the officers duly authorized to execute this Agreement and the other documents contemplated
by this Agreement. Within five (5) Trading Days of each Representation Date, the Company shall have furnished to the Agent such further
information, certificates and documents as the Agent may reasonably request.


 




    	-25-



     


    

 


(u)
Renewal of Registration Statement. If, immediately prior to the third anniversary of the
initial effective date of the Registration Statement (the “Renewal Date”), any of the Placement Shares remain
unsold and this Agreement has not been terminated, the Company will, prior to the Renewal Date, file a new shelf registration statement
or, if applicable, an automatic shelf registration statement relating to the Class A Common
Stock and Series B Preferred Stock that may be offered and sold pursuant to this Agreement (which shall include a prospectus reflecting
the amount of Placement Shares that may be offered and sold pursuant to this Agreement), in a form satisfactory to the Agent and its
counsel, and, if such registration statement is not an automatic shelf registration statement, will use its commercially reasonable efforts
to cause such registration statement to be declared effective within 180 days after the Renewal Date. The Company will take all other
commercially reasonable actions necessary or appropriate to permit the public offer and sale of the Placement Shares to continue as contemplated
in the expired registration statement and this Agreement. From and after the effective date thereof, references herein to the “Registration
Statement” shall include such new shelf registration statement or such new automatic shelf registration statement, as the case
may be.


 


8.
Payment of Expenses. The Company will pay all expenses incident to the performance of its obligations under this Agreement, including
(i) the preparation and filing of the Registration Statement, including any fees required by the Commission, and the printing or electronic
delivery of the Prospectus as originally filed and of each amendment and supplement thereto, in such number as the Agent shall reasonably
deem necessary, (ii) the printing and delivery to the Agent of this Agreement and such other documents as may be required in connection
with the offering, purchase, sale, issuance or delivery of the Placement Shares, (iii) the preparation, issuance and delivery of the
certificates, if any, for the Placement Shares to the Agent, including any stock or other transfer taxes and any capital duties, stamp
duties or other duties or taxes payable upon the sale, issuance or delivery of the Placement Shares to the Agent, (iv) the fees and disbursements
of the counsel, accountants and other advisors to the Company, (v) the fees and expenses of the Agent, including, but not limited to,
the fees and expenses of the counsel to the Agent, payable upon the execution of this Agreement, in an amount not to exceed $50,000 (in
addition, the Company shall reimburse the Agent upon request for such costs, fees and expenses incurred in connection with this Agreement
in an amount not to exceed $7,500 on a quarterly basis for the first three quarters of each year, $10,000 for the fourth quarter of each
year and $20,000 in connection with any filing of any additional prospectus or prospectus supplement which constitutes a Prospectus Supplement),
(vi) the qualification or exemption of the Placement Shares under state securities laws in accordance with the provisions of Section
7(r), including filing fees, but excluding fees of the Agent’s counsel, (vii) the printing and delivery to the Agent of copies
of any Permitted Issuer Free Writing Prospectus and the Prospectus and any amendments or supplements thereto in such number as the Agent
shall reasonably deem necessary, (viii) the preparation, printing and delivery to the Agent of copies of the blue sky survey, (ix) the
fees and expenses of the transfer agent and registrar for the Class A Common Stock and Series B Preferred Stock, (x) the filing and other
fees incident to any review by FINRA of the terms of the sale of the Placement Shares including the fees of the Agent’s counsel
(subject to the cap, set forth in clause (v) above), and (xi) the fees and expenses incurred in connection with the listing of the Placement
Shares on the Exchange.


 




    	-26-



     


    

 


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


 


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


 


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


 


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


 


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


 


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


 




    	-27-



     


    

 


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


 


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


 


(h)
No Suspension. Trading in the Class A Common Stock shall not have been suspended on the Exchange and neither the Class A Common
Stock nor the Series B Preferred Stock shall have been delisted from the Exchange.


 


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


 


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


 


(k)
Approval for Listing. The Placement Shares shall either have been (i) approved for listing on the Exchange, subject only to notice
of issuance, or (ii) the Company shall have filed an application for listing of the Placement Shares on the Exchange at, or prior to,
the issuance of any Placement Notice and the Exchange shall have reviewed such application and not provided any objections thereto.


 


(l)
FINRA. If applicable, FINRA shall have raised no objection to the terms of this offering and the amount of compensation allowable
or payable to the Agent as described in the Prospectus.


 


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


 


10.
Indemnification and Contribution.


 


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


 


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


 




    	-28-



     


    

 


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


 


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


 


provided,
however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising
out of any untrue statement or omission or alleged untrue statement or omission made solely in reliance upon and in conformity with any
Agent Information (as defined below).


 


(b)
Agent Indemnification. The Agent agrees to indemnify and hold harmless the Company and its directors and each officer of the Company
who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense whatsoever described in the indemnity
contained in Section 10(a), as incurred, but only with respect to untrue statements or omissions made in the Registration Statement
(or any amendments thereto), the Prospectus (or any amendment or supplement thereto) or any Issuer Free Writing Prospectus (or any amendment
or supplement thereto) in reliance upon and in conformity with information relating to the Agent and furnished to the Company in writing
by the Agent expressly for use therein. The Company hereby acknowledges that the only information that the Agent has furnished to the
Company expressly for use in the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus (or any amendment or supplement
thereto) are the statements set forth in the eighth and tenth paragraphs under the caption “Plan of Distribution” in the
Prospectus (the “Agent Information”).


 


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


 




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(d)
Settlement Without Consent if Failure to Reimburse. If an indemnified party shall have requested an indemnifying party
to reimburse the indemnified party for reasonable fees and expenses of counsel, such indemnifying party agrees that it shall be liable
for any settlement of the nature contemplated by Section 10(a)(ii) effected without its written consent if (1) such settlement
is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (2) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (3) such indemnifying
party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.


 


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


 




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


 


12.
Termination.


 


(a)
The Agent may terminate this Agreement, by notice to the Company, as hereinafter specified at any time (1) if there has been, since the
time of execution of this Agreement or since the date as of which information is given in the Prospectus, any change, or any development
or event involving a prospective change, in the condition, financial or otherwise, or in the business, properties, earnings, results
of operations or prospects of the Company and its Subsidiaries considered as one enterprise, whether or not arising in the ordinary course
of business, which individually or in the aggregate, in the sole judgment of the Agent is material and adverse and makes it impractical
or inadvisable to market the Placement Shares or to enforce contracts for the sale of the Placement Shares, (2) if there has occurred
any material adverse change in the financial markets in the United States or the international financial markets, any outbreak of hostilities
or escalation thereof or other calamity or crisis or any change or development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is such as to make it, in the judgment of the Agent, impracticable
or inadvisable to market the Placement Shares or to enforce contracts for the sale of the Placement Shares, (3) if trading in the Class
A Common Stock and Series B Preferred Stock has been suspended or limited by the Commission or the Exchange, or if trading generally
on the Exchange has been suspended or limited, or minimum prices for trading have been fixed on the Exchange, (4) if any suspension of
trading of any securities of the Company on any exchange or in the over-the-counter market shall have occurred and be continuing, (5)
if a major disruption of securities settlements or clearance services in the United States shall have occurred and be continuing, or
(6) if a banking moratorium has been declared by either U.S. Federal or New York authorities. Any such termination shall be without liability
of any party to any other party except that the provisions of Section 8 (Payment of Expenses), Section 10 (Indemnification
and Contribution), Section 11 (Representations and Agreements to Survive Delivery), Section 17 (Governing Law and Time;
Waiver of Jury Trial) and Section 18 (Consent to Jurisdiction) hereof shall remain in full force and effect notwithstanding such
termination. If the Agent elects to terminate this Agreement as provided in this Section 12(a), the Agent shall provide the required
notice as specified in Section 13 (Notices).


 






    	-31-



     


    

 


(b)
The Company shall have the right, by giving ten (10) days’ notice as hereinafter specified to terminate this Agreement in its sole
discretion at any time after the date of this Agreement. Any such termination shall be without liability of any party to any other party
except that the provisions of Section 8, Section 10, Section 11, Section 17 and Section 18 hereof
shall remain in full force and effect notwithstanding such termination.





 


(c)
The Agent shall have the right, by giving ten (10) days’ notice as hereinafter specified to terminate this Agreement in its sole
discretion at any time after the date of this Agreement. Any such termination shall be without liability of any party to any other party
except that the provisions of Section 8, Section 10, Section 11, Section 17 and Section 18 hereof
shall remain in full force and effect notwithstanding such termination.


 


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


 


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


 


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


 


ThinkEquity
LLC


17
State Street, 41st Floor


New
York, New York 10004

Attn: Head of Investment Banking


Email:
notices@think-equity.com


 






    	-32-



     


    

 


with
a copy to:


 


Blank
Rome LLP


1271
Avenue Of The Americas


New
York, NY 10020


Email:
brad.shiffman@blankrome.com


 


and
if to the Company, shall be delivered to:


 


FAT
Brands Inc.


9720
Wilshire Blvd. Suite 500


Beverly
Hills, CA 90212


Email:
asussman@fatbrands.com


 


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


 


Greenberg
Traurig LLP,


1840
Century Park East, Suite 1900


Los
Angeles, CA 90067


Email:
kelsonm@gtlaw.com





 


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


 


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


 


14.
Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the Company and the Agent and their respective
successors and the parties referred to in Section 10. References to any of the parties contained in this Agreement shall be deemed
to include the successors and permitted assigns of such party. Nothing in this Agreement, express or implied, is intended to confer upon
any party other than the parties hereto or their respective successors and permitted assigns any rights, remedies, obligations or liabilities
under or by reason of this Agreement, except as expressly provided in this Agreement. Neither party may assign its rights or obligations
under this Agreement without the prior written consent of the other party; provided, however, that the Agent may assign
its rights and obligations hereunder to an affiliate thereof without obtaining the Company’s consent but shall provide notice of
such assignment to the Company.


 






    	-33-



     


    

 


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


 


16.
Entire Agreement; Amendment; Severability; Waiver. This Agreement (including all schedules and exhibits attached hereto and Placement
Notices issued pursuant hereto) constitutes the entire agreement and supersedes all other prior and contemporaneous agreements and undertakings,
both written and oral, among the parties hereto with regard to the subject matter hereof. Neither this Agreement nor any term hereof
may be amended except pursuant to a written instrument executed by the Company and the Agent. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable as written by
a court of competent jurisdiction, then such provision shall be given full force and effect to the fullest possible extent that it is
valid, legal and enforceable, and the remainder of the terms and provisions herein shall be construed as if such invalid, illegal or
unenforceable term or provision was not contained herein, but only to the extent that giving effect to such provision and the remainder
of the terms and provisions hereof shall be in accordance with the intent of the parties as reflected in this Agreement. No implied waiver
by a party shall arise in the absence of a waiver in writing signed by such party. No failure or delay in exercising any right, power,
or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any right, power, or privilege hereunder.


 


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





 


18.
CONSENT TO JURISDICTION. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS
SITTING IN THE CITY OF NEW YORK, BOROUGH OF MANHATTAN, FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH ANY TRANSACTION
CONTEMPLATED HEREBY, AND HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IT IS
NOT PERSONALLY SUBJECT TO THE JURISDICTION OF ANY SUCH COURT, THAT SUCH SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM
OR THAT THE VENUE OF SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER. EACH PARTY HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS AND
CONSENTS TO PROCESS BEING SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY THEREOF (CERTIFIED OR REGISTERED MAIL, RETURN
RECEIPT REQUESTED) TO SUCH PARTY AT THE ADDRESS IN EFFECT FOR NOTICES TO IT UNDER THIS AGREEMENT AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE
GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING CONTAINED HEREIN SHALL BE DEEMED TO LIMIT IN ANY WAY ANY RIGHT TO
SERVE PROCESS IN ANY MANNER PERMITTED BY LAW.


 


19.
Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. Delivery of an executed Agreement by one party to the other may be made
by email or by electronic delivery of a portable document format (PDF) file (including any electronic signature covered by the U.S. federal
ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com).


 






    	-34-



     


    

 


20.
Construction. The section and exhibit headings herein are for convenience only and shall not affect the construction hereof. References
herein to any law, statute, ordinance, code, regulation, rule or other requirement of any Governmental Authority shall be deemed to refer
to such law, statute, ordinance, code, regulation, rule or other requirement of any Governmental Authority as amended, reenacted, supplemented
or superseded in whole or in part and in effect from time to time and also to all rules and regulations promulgated thereunder.


 


21.
Permitted Free Writing Prospectuses. The Company represents, warrants and agrees that, unless it obtains the prior written consent
of the Agent, and the Agent represents, warrants and agrees that, unless it obtains the prior written consent of the Company, it has
not made and will not make any offer relating to the Placement Shares that would constitute an Issuer Free Writing Prospectus, or that
would otherwise constitute a “free writing prospectus,” as defined in Rule 405, required to be filed with the Commission.
Any such free writing prospectus consented to by the Agent or by the Company, as the case may be, is hereinafter referred to as a “Permitted
Free Writing Prospectus.” The Company represents and warrants that it has treated and agrees that it will treat each Permitted
Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply
with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where
required, legending and record keeping. For the purposes of clarity, the parties hereto agree that all free writing prospectuses, if
any, listed in Exhibit 21 attached hereto are Permitted Free Writing Prospectuses.


 


22.
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:


 


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





 


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


 


(c)
neither the Agent nor its affiliates have provided any legal, accounting, regulatory or tax advice with respect to the transactions contemplated
by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;


 


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


 


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


 






    	-35-



     


    

 


23.
Definitions. As used in this Agreement, the following terms have the respective meanings set forth below:


 


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


 


“Governmental
Authority” means (i) any federal, provincial, state, local, municipal, national or international government or governmental
authority, regulatory or administrative agency, governmental commission, department, board, bureau, agency or instrumentality, court,
tribunal, arbitrator or arbitral body (public or private); (ii) any self-regulatory organization; or (iii) any political subdivision
of any of the foregoing.


 


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


 


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


 


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


 


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


 


[Signature
Page Follows]


 




    	-36-



     


    

 


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


 


	 	Very
    truly yours,
	 	 	 
	 	FAT
    BRANDS INC.
	 	 	 
	 	By:	/s/
    Andrew A. Wiederhorn
	 	 	Name:
    Andrew A. Wiederhorn
	 		Title:
    Chief Executive Offer and President


 


	 	ACCEPTED
    as of the date first-above written:
	 	 	 
	 	THINKEQUITY
    LLC
	 	 	 
	 	By:	/s/
    Eric Lord
	 	 	Name:
    Eric Lord
	 		Title: Head of Investment Banking


 




    	 



     


    

 


SCHEDULE
1


 





 



 


Form
of Placement Notice




 





 



 


	From:	FAT
    BRANDS INC.
	 	 
	To:
    	ThinkEquity
    LLC 
	 	Attention:
    [●]
	 	 
	Subject:	Placement
    Notice
	 	 
	Date:	[●],
    20[●]


 


Ladies
and Gentlemen:


 


Pursuant
to the terms and subject to the conditions set forth in the ATM Sales Agreement, dated November 14, 2022, between FAT Brands, Inc., a
Delaware corporation (the “Company”), and ThinkEquity LLC (the “Agent”), the Company
hereby requests that the Agent sell up to:


 


☐
[●] shares of the Company’s Class A Common Stock, par value $0.0001 per share, at a minimum market price of $[●] per
share[;and]


 


☐ [●]
shares of the Company’s 8.25% Series B Cumulative Preferred Stock, par value $0.0001 per share, at a minimum price of $[●]
per share, during the time period beginning [month, day, time], and ending [month, day, time].


 




    	 



     


    

 


SCHEDULE
2




 





 



 


Compensation




 





 



 


The
Company shall pay to the Agent in cash, upon each sale of Placement Shares pursuant to this Agreement, an amount up to 3.0% of the aggregate
gross proceeds from such sale of Placement Shares.


 




    	 



     


    

 


SCHEDULE
4


 





 



 


Subsidiaries




 





 



 


Incorporated
by reference to Exhibit 21.1 to the Company’s most recent Annual Report on Form 10-K filed with the Commission.


 




    	 



     


    

 


Exhibit
7(l)


 


Form
of Representation Date Certificate Pursuant to Section 7(l)


 


[
                     ], 20[       ]


 


The
undersigned, the duly qualified and elected Chief Executive Offer and President of FAT Brands Inc., a Delaware corporation (the “Company”),
does hereby certify in such capacity and on behalf of the Company, pursuant to Section 7(l) of the ATM Sales Agreement, dated
November 14, 2022 (the “Sales Agreement”), between the Company and ThinkEquity LLC, that to the best of the
knowledge of the undersigned:


 


	 	1.	As
    of the applicable Representation Date to which this Certificate pertains (the “Applicable Representation Date”),
    (i) the Registration Statement does not contain any untrue statement of a material fact or omit to state a material fact required
    to be stated therein or necessary in order to make the statements therein not misleading, (ii) the Prospectus does not contain any
    untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make
    the statements therein, in light of the circumstances under which they were made, not misleading, and (iii) no event has occurred
    as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or
    misleading.
	 	 	 
	 	2.	No
    stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued, and no proceedings
    for that purpose have been instituted or are pending or threatened by any securities or other governmental authority (including,
    without limitation, the Commission).
	 	 	 
	 	3.	Each
    of the representations and warranties of the Company contained in the Sales Agreement were, when originally made, and are, as of
    the Applicable Representation Date, true and correct in all material respects (except for those representations and warranties that
    speak solely as of a specific date and which were true and correct as of such date); provided, however, that such representations
    and warranties shall be qualified by the disclosure included or incorporated by reference in the Registration Statement and Prospectus.
	 	 	 
	 	4.	Each
    of the covenants required to be performed by the Company in the Sales Agreement on or prior to the date of the Sales Agreement, the
    Applicable Representation Date, or any such other date as set forth in the Sales Agreement, as applicable, has been duly, timely
    and fully performed in all material respects, and each condition required to be complied with by the Company on or prior to the date
    of the Sales Agreement, the Applicable Representation Date, or any such other date as set forth in the Sales Agreement, as applicable,
    has been duly, timely and fully complied with in all material respects.
	 	 	 
	 	5.	Subsequent
    to the date of the most recent financial statements incorporated by reference in the Prospectus, there has been no Material Adverse
    Change.


 


Greenberg
Traurig, LLP and Blank Rome LLP are entitled to rely on this Certificate in connection with the respective opinions such firms are rendering
pursuant to the Sales Agreement. Capitalized terms used herein without definition shall have the meanings given to such terms in the
Sales Agreement.


 


[Signature
page follows]


 




    	1



     


    

 


IN
WITNESS WHEREOF, on behalf of the Company, the undersigned has executed this Officer’s Certificate as of the date first written
above.


 


	 	FAT Brands Inc.
	 	 	 
	 	By:	 
	 	Name:	Andrew
    A. Wiederhorn
	 	Title:	Chief
    Executive Offer and President


 




    	2



     


    

 


Exhibit
21


 


Permitted
Free Writing Prospectus


 


None.