Exhibit 10.1


 


 


 


OPEN MARKET SALE AGREEMENTSM


 


June 15,
2020


 


JEFFERIES LLC

520 Madison Avenue


New York, New York 10022


 


Ladies and Gentlemen:


  


Hertz
Global Holdings, Inc., a Delaware corporation (the “Company”), proposes, subject to the terms and conditions
stated herein, to issue and sell from time to time through Jefferies LLC, as sales agent and/or principal (the “Agent”),
shares of the Company’s common stock, par value $0.01 per share (the “Common Shares”), on the terms set
forth in this agreement (this “Agreement”).


 


Section 1. DEFINITIONS


 


(a)       Certain
Definitions. For purposes of this Agreement, capitalized terms used herein and not otherwise defined shall have the following
respective meanings:


 


“Affiliate”
of a Person means another Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or
is under common control with, such first- mentioned Person. The term “control” (including the terms “controlling,”
 “controlled by” and “under common control with”) means the possession, direct or indirect, of the power
to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities,
by contract or otherwise.


 


“Agency
Period” means the period commencing on the date of this Agreement and expiring on the earliest to occur of (x) the date
on which the Agent shall have placed the Maximum Program Amount pursuant to this Agreement and (y) the date this Agreement is terminated
pursuant to ‎Section 7.


 


“Commission”
means the U.S. Securities and Exchange Commission.


 


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


 


“Floor Price”
means the minimum price set by the Company in the Issuance Notice below which the Agent shall not sell Shares during the applicable
period set forth in the Issuance Notice, which may be adjusted by the Company at any time during the period set forth in the Issuance
Notice by delivering written notice of such change to the Agent and which in no event shall be less than $1.00 without the prior
written consent of the Agent, which may be withheld in the Agent’s sole discretion.


 





 



 SM “Open Market
Sale Agreement” is a service mark of Jefferies LLC


 






    	 	 	 



     


    

 


“Issuance
Amount” means the aggregate Sales Price of the Shares to be sold by the Agent pursuant to any Issuance Notice.


 


“Issuance
Notice” means a written notice delivered to the Agent by the Company in accordance with this Agreement in the form attached
hereto as Exhibit A that is executed by its Chief Executive Officer, President or Chief Financial Officer.


 


“Issuance
Notice Date” means any Trading Day during the Agency Period that an Issuance Notice is delivered pursuant to ‎Section
3(b)(i).


 


“Issuance
Price” means the Sales Price less the Selling Commission.


 


“Maximum
Program Amount” means Common Shares with an aggregate Sales Price of the lesser of (a) the number or dollar amount of
Common Shares registered under the effective Registration Statement (defined below) pursuant to which the offering is being made,
(b) the number of authorized but unissued Common Shares (less Common Shares issuable upon exercise, conversion or exchange of
any outstanding securities of the Company or otherwise reserved from the Company’s authorized capital stock), (c) the number
or dollar amount of Common Shares permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable),
or (d) the number or dollar amount of Common Shares for which the Company has filed a Prospectus (defined below).


 


“Person”
means an individual or a corporation, partnership, limited liability company, trust, incorporated or unincorporated association,
joint venture, joint stock company, governmental authority or other entity of any kind.


 


“Principal
Market” means the New York Stock Exchange or such other national securities exchange on which the Common Shares, including
any Shares, are then listed.


 


“Sales Price”
means the actual sale execution price of each Share placed by the Agent pursuant to this Agreement.


 


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


 


“Selling
Commission” means up to three percent (3.0%) of the gross proceeds of Shares sold pursuant to this Agreement, or such lesser amount as may be agreed between the Company and the Agent with respect to any Shares sold pursuant to this Agreement.


 


“Settlement
Date” means the second business day following each Trading Day during the period set forth in the Issuance Notice on
which Shares are sold pursuant to this Agreement, when the Agent shall deliver to the Company the Issuance Price received on such
sales and the Company shall deliver to the Agent the amount of Shares sold on such Trading Day.


 






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“Shares”
shall mean the Company’s Common Shares issued or issuable pursuant to this Agreement.


 


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


 


Section 2. REPRESENTATIONS AND WARRANTIES
OF THE COMPANY


  


The Company represents
and warrants to, and agrees with, the Agent that as of (1) the date of this Agreement, (2) each Issuance Notice Date, (3) each
Settlement Date, (4) each Triggering Event Date and (5) as of each Time of Sale (each of the times referenced above is referred
to herein as a “Representation Date”), except as may be disclosed in the Prospectus (including any documents
incorporated by reference therein and any supplements thereto) on or before a Representation Date:


 


(a)       Registration
Statement. The Company has prepared and filed with the Commission a shelf registration statement on Form S-3 (File
No. 333-231878) that contains a base prospectus (the “Base Prospectus”). Such registration statement registers
the issuance and sale by the Company of the Shares under the Securities Act. The Company may file one or more additional registration
statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable,
with respect to the Shares. Except where the context otherwise requires, such registration statement(s), including any information
deemed to be a part thereof pursuant to Rule 430B under the Securities Act, including all financial statements, exhibits and schedules
thereto and all documents incorporated or deemed to be incorporated therein by reference pursuant to Item 12 of Form S-3 under
the Securities Act as from time to time amended or supplemented, is herein referred to as the “Registration Statement,”
and the prospectus constituting a part of such registration statement(s), together with any prospectus supplement filed with the
Commission pursuant to Rule 424(b) under the Securities Act relating to a particular issuance of the Shares, including all documents
incorporated or deemed to be incorporated therein by reference pursuant to Item 12 of Form S-3 under the Securities Act, in each
case, as from time to time amended or supplemented, is referred to herein as the “Prospectus,” except that
if any revised prospectus is provided to the Agent by the Company for use in connection with the offering of the Shares that is
not required to be filed by the Company pursuant to Rule 424(b) under the Securities Act, the term “Prospectus”
shall refer to such revised prospectus from and after the time it is first provided to the Agent for such use. The Registration
Statement at the time it originally became effective is herein called the “Original Registration Statement.”
As used in this Agreement, the terms “amendment” or “supplement” when applied to the Registration Statement
or the Prospectus shall be deemed to include the filing by the Company with the Commission of any document under the Exchange
Act after the date hereof that is or is deemed to be incorporated therein by reference.


 


All references in
this Agreement to financial statements and schedules and other information which 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 which is or is deemed to be incorporated
by reference in or otherwise deemed under the Securities Act to be a part of or included in the Registration Statement or the
Prospectus, as the case may be, as of any specified date; and all references in this Agreement to amendments or supplements to
the Registration Statement or the Prospectus shall be deemed to mean and include, without limitation, the filing of any document
under the Exchange Act which is or is deemed to be incorporated by reference in or otherwise deemed under the Securities Act to
be a part of or included in the Registration Statement or the Prospectus, as the case may be, as of any specified date. The Company’s
obligations under this Agreement to furnish, provide, deliver or make available (and all other references of like import) copies
of any report or statement shall be deemed satisfied if the same is filed with the Commission through its Electronic Data Gathering,
Analysis and Retrieval system (“EDGAR”).


 






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At
the time the Original Registration Statement was or will be declared effective and at the time the Company’s most recent
annual report on Form 10-K was filed with the Commission, if later, the Company met the then-applicable requirements for
use of Form S-3 under the Securities Act. During the Agency Period, each time the Company files an annual report on
Form 10-K the Company will meet the then-applicable requirements for use of Form S-3 under the Securities Act.


 


(b)       Compliance
with Registration Requirements. The Original Registration Statement and any Rule 462(b) Registration Statement have been
declared effective by the Commission under the Securities Act. The Company has complied to the Commission’s satisfaction
with all requests of the Commission for additional or supplemental information. No stop order suspending the effectiveness of
the Registration Statement or any Rule 462(b) Registration Statement is in effect and no proceedings for such purpose have
been instituted or, to the best knowledge of the Company, are pending or are contemplated or threatened by the Commission.


 


The
Prospectus when filed complied or will comply in all material respects with the Securities Act and, if filed with the Commission
through EDGAR (except as may be permitted by Regulation S-T under the Securities Act), was identical to the copy thereof
delivered to the Agent for use in connection with the issuance and sale of the Shares. Each of the Registration Statement, any
Rule 462(b) Registration Statement and any post-effective amendment thereto, at the time it became or becomes effective and
at each Representation Date, complied and will comply in all material respects with the Securities Act and did not and will not
contain any 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. As of the date of this Agreement, the Prospectus and any Free Writing Prospectus (as
defined below) considered together (collectively, the “Time of Sale Information”) did not contain any 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
under which they were made, not misleading. The Prospectus, as amended or supplemented, as of its date and at each Representation
Date, did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which they were made, not misleading. The representations
and warranties set forth in the three immediately preceding sentences do not apply to statements in or omissions from the Registration
Statement, any Rule 462(b) Registration Statement, or any post-effective amendment thereto, or the Prospectus, or any amendments
or supplements thereto, made in reliance upon and in conformity with information relating to the Agent furnished to the Company
in writing by the Agent expressly for use therein, it being understood and agreed that the only such information furnished by
the Agent to the Company consists of the information described in ‎Section 6 below. There are no contracts or
other documents required to be described in the Prospectus or to be filed as exhibits to the Registration Statement which have
not been described or filed as required. The Registration Statement and the offer and sale of the Shares as contemplated hereby
meet the requirements of Rule 415 under the Securities Act and comply in all material respects with said rule.


 






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(c)       Ineligible
Issuer Status. As of the determination date referenced in Rule 164(h) under the Securities Act and as of the date hereof,
the Company was and is an “ineligible issuer” in connection with the offering of the Shares pursuant to Rules 164,
405 and 433 under the Securities Act. Any Free Writing Prospectus that the Company is required to file pursuant to Rule 433(d)
under the Securities Act has been, or will be, filed with the Commission in accordance with the requirements of the Securities
Act. Each Free Writing Prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities
Act or that was prepared by or on behalf of or used or referred to by the Company complies or will comply in all material respects
with the requirements of Rule 433 under the Securities Act including timely filing with the Commission or retention where required
and legending, and each such Free Writing Prospectus, as of its issue date and at all subsequent times through the completion
of the issuance and sale of the Shares did not, does not and will not include any information that conflicted, conflicts with
or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated
by reference therein. Except for the Free Writing Prospectuses, if any, and electronic road shows, if any, furnished to the Agent
before first use, the Company has not prepared, used or referred to, and will not, without the Agent’s prior consent, prepare,
use or refer to, any Free Writing Prospectus.


 


(d)       Incorporated
Documents. The documents incorporated or deemed to be incorporated by reference in the Registration Statement and the Prospectus,
at the time they were filed with the Commission, complied in all material respects with the requirements of the Exchange Act,
as applicable, and, when read together with the other information in the Prospectus, do not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.


 


(e)       Exchange
Act Compliance. The documents incorporated or deemed to be incorporated by reference in the Prospectus, at the time they were
or hereafter are filed with the Commission, and any Free Writing Prospectus or amendment or supplement thereto complied and will
comply in all material respects with the requirements of the Exchange Act, and, when read together with the other information
in the Prospectus, at the time the Registration Statement and any amendments thereto become effective and at each Time of Sale
(as defined below), as the case may be, 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 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.


 


(f)       Statistical
and Market-Related Data. All statistical, demographic and market-related data included in the Registration Statement or the
Prospectus are based on or derived from sources that the Company believes, after reasonable inquiry, to be reliable and accurate.
To the extent required, the Company has obtained the written consent for the use of such data from such sources.


 






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(g)       Disclosure
Controls and Procedures; Deficiencies in or Changes to Internal Control Over Financial Reporting. The Company has established
and maintains disclosure controls and procedures (as defined in Rules 13a-15 and 15d-15 under the Exchange Act), which (i)
are designed to ensure that material information relating to the Company, including its consolidated subsidiaries, is made known
to the Company’s principal executive officer and its principal financial officer by others within those entities, particularly
during the periods in which the periodic reports required under the Exchange Act are being prepared; (ii) have been evaluated
by management of the Company for effectiveness as of the end of the Company’s most recent fiscal quarter; and (iii) are
effective in all material respects to perform the functions for which they were established. Since the end of the Company’s
most recent audited fiscal year, there have been no significant deficiencies or material weaknesses in the Company’s internal
control over financial reporting (whether or not remediated) and 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. The Company is not aware of any change in its internal control over financial reporting that has occurred
during its most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the Company’s
internal control over financial reporting.


 


(h)       This
Agreement. This Agreement has been duly authorized, executed and delivered by the Company.


 


(i)       Authorization
of the Shares. The Shares have been duly authorized for issuance and sale pursuant to this Agreement and, when issued and
delivered by the Company against payment therefor pursuant to this Agreement, will be validly issued, fully paid and nonassessable,
and the issuance and sale of the Shares is not subject to any preemptive rights, rights of first refusal or other similar rights
to subscribe for or purchase the Shares.


 


(j)       No
Applicable Registration or Other Similar Rights. There are no persons with registration or other similar rights to have any
equity or debt securities registered for sale under the Registration Statement or included in the offering contemplated by this
Agreement, except for such rights as have been duly waived.


 


(k)       No
Material Adverse Change. Except as otherwise disclosed in the Registration Statement and the Prospectus, subsequent to the
respective dates as of which information is given in the Registration Statement and the Prospectus: (i) there has been no
material adverse change, or any development that would reasonably be expected to result in a material adverse change, in (A) the
condition, financial or otherwise, or in the earnings, business, properties, operations, operating results, assets, liabilities
or prospects, whether or not arising from transactions in the ordinary course of business, of the Company and its subsidiaries,
considered as one entity or (B) the ability of the Company to consummate the transactions contemplated by this Agreement or perform
its obligations hereunder (any such change being referred to herein as a “Material Adverse Change”); (ii) the
Company and its subsidiaries, considered as one entity, have not incurred any material liability or obligation, indirect, direct
or contingent, including without limitation any losses or interference with their business from fire, explosion, flood, earthquakes,
accident or other calamity, whether or not covered by insurance, or from any strike, labor dispute or court or governmental action,
order or decree, that are material, individually or in the aggregate, to the Company and its subsidiaries, considered as one entity,
and have not entered into any transactions not in the ordinary course of business; and (iii) there has not been any material
decrease in the capital stock or any material increase in any short-term or long-term indebtedness of the Company or its subsidiaries
and there has been no dividend or distribution of any kind declared, paid or made by the Company or, except for dividends paid
to the Company or other subsidiaries, by any of the Company’s subsidiaries on any class of capital stock, or any repurchase
or redemption by the Company or any of its subsidiaries of any class of capital stock.


 






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(l)       Independent
Accountants. PricewaterhouseCoopers LLP, which has expressed its opinion with respect to the financial statements (which term
as used in this Agreement includes the related notes thereto) and supporting schedules filed with the Commission as a part of
the Registration Statement and the Prospectus, is (i) an independent registered public accounting firm as required by the Securities
Act , the Exchange Act, and the rules of the Public Company Accounting Oversight Board (“PCAOB”), (ii) in compliance
with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X under the Securities
Act and (iii) a registered public accounting firm as defined by the PCAOB whose registration has not been suspended or revoked
and who has not requested such registration to be withdrawn. Ernst & Young LLP, the Company’s current independent auditor,
which has expressed its opinion with respect to the financial statements (which term as used in this Agreement includes the related
notes thereto) and supporting schedules filed with the Commission as a part of the Registration Statement and the Prospectus,
is (i) an independent registered public accounting firm as required by the Securities Act, the Exchange Act, and the rules of
the PCAOB, (ii) in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of
Regulation S-X under the Securities Act and (iii) a registered public accounting firm as defined by the PCAOB whose registration
has not been suspended or revoked and who has not requested such registration to be withdrawn.


 


(m)       Financial
Statements. The financial statements filed with the Commission as a part of the Registration Statement and the Prospectus
present fairly in all material respects the consolidated financial position of the Company and its subsidiaries as of the dates
indicated and the results of their operations, changes in stockholders’ equity and cash flows for the periods specified.
The supporting schedules included in the Registration Statement present fairly the information required to be stated therein.
Such financial statements and supporting schedules have been prepared in conformity with generally accepted accounting principles
as applied in the United States applied on a consistent basis throughout the periods involved, except as may be expressly stated
in the related notes thereto. The interactive data in eXtensible Business Reporting Language included or incorporated by reference
in the Registration Statement fairly presents the information called for in all material respects and has been prepared in accordance
with the Commission’s rules and guidelines applicable thereto. No other financial statements or supporting schedules are
required to be included in the Registration Statement or the Prospectus. The financial data set forth in each of the Registration
Statement and the Prospectus under the captions “Selected Financial Data” fairly present the information set forth
therein on a basis consistent with that of the audited financial statements contained in the Registration Statement and the Prospectus.
All disclosures contained in the Registration Statement and the Prospectus that constitute non-GAAP financial measures (as defined
by the rules and regulations under the Securities Act and the Exchange Act) comply with Regulation G under the Exchange Act and
Item 10 of Regulation S-K under the Securities Act, as applicable. To the Company’s knowledge, no person who has been suspended
or barred from being associated with a registered public accounting firm, or who has failed to comply with any sanction pursuant
to Rule 5300 promulgated by the PCAOB, has participated in or otherwise aided the preparation of, or audited, the financial statements,
supporting schedules or other financial data filed with the Commission as a part of the Registration Statement and the Prospectus.


 






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(n)       Company’s
Accounting System. The Company and each of its subsidiaries make and keep books, records and accounts, which in reasonable
detail, accurately and fairly reflect the transactions and dispositions of the assets of the Company and its subsidiaries and
maintain a system of internal accounting controls sufficient to provide reasonable assurance that: (i) transactions are executed
in accordance with management’s general or specific authorization; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted accounting principles as applied in the United States
and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s
general or specific authorization; (iv) the recorded accountability for assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any differences; and (v) the interactive data in eXtensible Business
Reporting Language included or incorporated by reference in the Registration Statement and the Prospectus fairly presents the
information called for in all material respects and is prepared in accordance with the Commission's rules and guidelines applicable
thereto.


 


(o)       Incorporation
and Good Standing of the Company. The Company has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its incorporation and has the corporate power and authority to own, lease
and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus and to enter
into and perform its obligations under this Agreement. The Company is duly qualified as a foreign corporation to transact business
and is in good standing in the State of Delaware and each other jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of business except where the failure to so qualify or to be in
good standing would not reasonably be expected, individually or in the aggregate, to have a material adverse effect on the condition
(financial or otherwise), earnings, business, properties, operations, operating results, assets, liabilities or prospects of the
Company and its subsidiaries, considered as one entity (a “Material Adverse Effect”).


 


(p)       Subsidiaries.
Each of the Company’s “subsidiaries” (for purposes of this Agreement, as defined in Rule 405 under the Securities
Act) has been duly incorporated or organized, as the case may be, and is validly existing as a corporation, partnership or limited
liability company, as applicable, in good standing under the laws of the jurisdiction of its incorporation or organization and
has the power and authority (corporate or other) to own, lease and operate its properties and to conduct its business as described
in the Registration Statement and the Prospectus. Each of the Company’s subsidiaries is duly qualified as a foreign corporation,
partnership or limited liability company, as applicable, to transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business except
where the failure to so qualify or to be in good standing would not reasonably be expected, individually or in the aggregate to
have a Material Adverse Effect. All of the issued and outstanding capital stock or other equity or ownership interests of each
of the Company’s subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable and are owned
by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance
or adverse claim. None of the outstanding capital stock or equity interest in any subsidiary was issued in violation of preemptive
or similar rights of any security holder of such subsidiary. The constitutive or organizational documents of each of the subsidiaries
comply in all material respects with the requirements of applicable laws of its jurisdiction of incorporation or organization
and are in full force and effect. The Company does not own or control, directly or indirectly, any corporation, association or
other entity other than (i) the subsidiaries listed in Exhibit 21.1 to the Company’s most recent Annual Report on Form
10-K and (ii) such other entities omitted from Exhibit 21 which, when such omitted entities are considered in the aggregate as
a single subsidiary, would not constitute a “significant subsidiary” within the meaning of Rule 1-02(w) of Regulation
S-X.


 






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(q)       Capitalization
and Other Capital Stock Matters. The authorized, issued and outstanding capital stock of the Company is as set forth in the
Registration Statement and the Prospectus (other than for subsequent issuances, if any, pursuant to employee benefit plans or
upon the exercise of outstanding options or warrants, in each case described in the Registration Statement and the Prospectus).
The Common Shares (including the Shares) conform in all material respects to the description thereof contained in the Prospectus.
All of the issued and outstanding Common Shares have been duly authorized and validly issued, are fully paid and nonassessable
and have been issued in compliance with all federal and state securities laws. None of the outstanding Common Shares was issued
in violation of any preemptive rights, rights of first refusal or other similar rights to subscribe for or purchase securities
of the Company. There are no authorized or outstanding options, warrants, preemptive rights, rights of first refusal or other
rights to purchase, or equity or debt securities convertible into or exchangeable or exercisable for, any capital stock of the
Company or any of its subsidiaries other than those described in the Registration Statement and the Prospectus. The descriptions
of the Company’s stock option, stock bonus and other stock plans or arrangements, and the options or other rights granted
thereunder, set forth in the Registration Statement and the Prospectus accurately and fairly presents the information required
to be shown with respect to such plans, arrangements, options and rights.


 


(r)       Stock
Exchange Listing. The Common Shares are registered pursuant to Section 12(b) or 12(g) of the Exchange Act and are listed on
the Principal Market, and, except for the impact of the Company’s filings under chapter 11 of title 11 of the United States
Code (the “Chapter 11 Proceedings”), the Company has taken no action designed to, or likely to have the effect
of, terminating the registration of the Common Shares under the Exchange Act or delisting the Common Shares from the Principal
Market, nor has the Company received any notification that the Commission or the Principal Market is contemplating terminating
such registration or listing, except for the Delisting (as defined below). To the Company’s knowledge, it is in compliance
with all applicable listing requirements of the Principal Market, provided, however, that the Company has received a notice from
the Principal Market that it intends to commence proceedings to delist the Common Shares as a result of the Chapter 11 Proceedings
(the “Delisting”).


 






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(s)       Non-Contravention
of Existing Instruments; No Further Authorizations or Approvals Required. Neither the Company nor any of its subsidiaries
is in violation of its charter or by-laws, partnership agreement or operating agreement or similar organizational documents, as
applicable, or is in default (or, with the giving of notice or lapse of time, would be in default) (“Default”)
under any indenture, loan, credit agreement, note, lease, license agreement, contract, franchise or other instrument (including,
without limitation, any pledge agreement, security agreement, mortgage or other instrument or agreement evidencing, guaranteeing,
securing or relating to indebtedness) to which the Company or any of its subsidiaries is a party or by which it or any of them
may be bound, or to which any of their respective properties or assets are subject (each, an “Existing Instrument”),
except for such Defaults arising as a result of or in connection with the Company’s Chapter 11 Proceedings and such
Defaults as would not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Change. The Company’s
execution, delivery and performance of this Agreement, consummation of the transactions contemplated hereby and by the Registration
Statement and the Prospectus and the issuance and sale of the Shares (including the use of proceeds from the sale of the Shares
as described in the Registration Statement and the Prospectus under the caption “Use of Proceeds”) (i) have been
duly authorized by all necessary corporate action and will not result in any violation of the provisions of the charter or by-laws,
partnership agreement or operating agreement or similar organizational documents, as applicable, of the Company or any subsidiary
(ii) will not conflict with or constitute a breach of, or Default or a Debt Repayment Triggering Event (as defined below)
under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or
any of its subsidiaries pursuant to, or require the consent of any other party to, any Existing Instrument and (iii) will
not result in any violation of any law, administrative regulation or administrative or court decree applicable to the Company
or any of its subsidiaries except for such conflicts, breaches, Defaults, Debt Repayment Triggering Events or violations specified
in subsections (ii) and (iii) above that would not reasonably be expected, individually or in the aggregate, to result in a Material
Adverse Effect. No consent, approval, authorization or other order of, or registration or filing with, any court or other governmental
or regulatory authority or agency, is required for the Company’s execution, delivery and performance of this Agreement and
consummation of the transactions contemplated hereby and by the Registration Statement and the Prospectus, except such as have
been obtained or made by the Company and are in full force and effect under the Securities Act and such as may be required under
applicable state securities or blue sky laws or FINRA (as defined below). As used herein, a “Debt Repayment Triggering
Event” means any event or condition which gives, or with the giving of notice or lapse of time would give, the holder
of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require
the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its subsidiaries.


  


(t)       No
Material Actions or Proceedings. Except as otherwise disclosed in the Prospectus, there is no action, suit, proceeding, inquiry
or investigation brought by or before any legal or governmental entity now pending or, to the knowledge of the Company, threatened,
against or affecting the Company or any of its subsidiaries, which would reasonably be expected, individually or in the aggregate,
to result in a Material Adverse Change. No material labor dispute with the employees of the Company or any of its subsidiaries,
or with the employees of any principal supplier, manufacturer, customer or contractor of the Company, exists or, to the knowledge
of the Company, is threatened or imminent.


 


(u)       Intellectual
Property Rights. The Company and its subsidiaries own, possess or license adequate rights to use any patents, patent applications,
trademarks, service marks, trade names, trademark registrations, service mark registrations, copyrights, licenses and know-how
including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures)
reasonably necessary for the conduct of their respective businesses as described in the Prospectus, except where the failure to
own or possess such rights would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect;
and the conduct of their respective businesses will not conflict with any such rights of others, except which would not reasonably
be expected, individually or in the aggregate, to have a Material Adverse Effect; and the Company and its subsidiaries have not
received any notice of any claim of infringement of or conflict with any such rights of others, which infringement or conflict,
if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to have a Material Adverse Effect.


 






    	 	10	 



     


    

 


(v)       All
Necessary Permits, etc. Except as otherwise disclosed in the Prospectus, the Company and each subsidiary possess such valid
and current certificates, authorizations or permits required by state, federal or foreign regulatory agencies or bodies to conduct
their respective businesses as currently conducted and as described in the Registration Statement or the Prospectus (“Permits”).
Neither the Company nor any of its subsidiaries is in violation of, or in default under, any of the Permits or has received any
notice of proceedings relating to the revocation or modification of, or non-compliance with, any such certificate, authorization
or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be
expected to have a Material Adverse Effect..


 


(w)       Title
to Properties. Except as otherwise disclosed in the Prospectus, the Company and its subsidiaries has good and marketable title
to all of the real and personal property and other assets reflected as owned in the financial statements referred to in ‎Section
2(m) above (or elsewhere in the Registration Statement or the Prospectus), in each case free and clear of any security interests,
mortgages, liens, encumbrances, equities, adverse claims and other defects, except for such security interests, mortgages, liens,
encumbrances, equities, adverse claims and other defects as would not reasonably be expected, individually or in the aggregate,
to have a Material Adverse Effect. The real property, improvements, equipment and personal property held under lease by the Company
or of its subsidiary are held under valid and enforceable leases, with such exceptions as are not material and do not materially
interfere with the use made or proposed to be made of such real property, improvements, equipment or personal property by the
Company or such subsidiary.


 


(x)       Tax
Law Compliance. The Company and its subsidiaries have filed all necessary federal, state and foreign income and franchise
tax returns or have properly requested extensions thereof (except in any case in which the failure to so file would not reasonably
be expected, individually or in the aggregate, to have a Material Adverse Effect) through the date hereof and have paid all taxes
required to be paid by any of them and, if due and payable, any related or similar assessment, fine or penalty levied against
any of them except as may be being contested in good faith and by appropriate proceedings. The Company has made adequate charges,
accruals and reserves in the applicable financial statements referred to in ‎Section 2(m) above in respect of all federal,
state and foreign income and franchise taxes for all periods as to which the tax liability of the Company or any of its subsidiaries
has not been finally determined.


 


(y)       Company
Not an “Investment Company.” The Company is not, and will not be, either after receipt of payment for the Shares
or after the application of the proceeds therefrom as described under “Use of Proceeds” in the Registration Statement
or the Prospectus, required to register as an “investment company” under the Investment Company Act of 1940, as amended
(the “Investment Company Act”).


 






    	 	11	 



     


    

 


(z)       Insurance.
Except as otherwise disclosed in the Prospectus, each of the Company and its subsidiaries are insured by recognized, financially
sound and reputable institutions with policies in such amounts and with such deductibles and covering such risks as are generally
deemed adequate and customary for their businesses including, but not limited to, policies covering real and personal property
owned or leased by the Company and its subsidiaries against theft, damage, destruction, acts of vandalism and earthquakes and
policies covering the Company and its subsidiaries for product liability claims. The Company has no reason to believe that it
or any of its subsidiaries will not be able (i) to renew its existing insurance coverage as and when such policies expire
or (ii) to obtain comparable coverage from similar institutions as may be necessary or appropriate to conduct its business
as now conducted and at a cost that would not reasonably be expected, individually or in the aggregate, to result in a Material
Adverse Change. Neither the Company nor any of its subsidiaries has been denied any insurance coverage which it has sought or
for which it has applied.


 


(aa)    No
Price Stabilization or Manipulation; Compliance with Regulation M. Neither the Company nor any of its subsidiaries has taken,
directly or indirectly, without giving effect to activities by the Agent, any action designed to or that might be reasonably expected
to cause or result in stabilization or manipulation of the price of the Common Shares or of any “reference security”
(as defined in Rule 100 of Regulation M under the Exchange Act (“Regulation M”)) with respect to the Common
Shares, whether to facilitate the sale or resale of the Shares or otherwise, and has taken no action which would directly or indirectly
violate Regulation M.


 


(bb)    Related
Party Transactions. There are no business relationships or related-party transactions involving the Company or any of its
subsidiaries or any other person required to be described in the Registration Statement or the Prospectus which have not been
described as required.


 


(cc)    FINRA
Matters. All of the information provided to the Agent or to counsel for the Agent by the Company, its counsel, its officers
and directors and the holders of any securities (debt or equity) or options to acquire any securities of the Company in connection
with the offering of the Shares is true, complete, correct and compliant with Financial Industry Regulatory Authority, Inc.’s
(“FINRA”) rules and any letters, filings or other supplemental information provided to FINRA pursuant to FINRA
Rules or NASD Conduct Rules is true, complete and correct. The Company meets the requirements for use of Form S-3 under the
Securities Act specified in FINRA Rule 5110(b)(7)(C)(i).


 


(dd)    No
Unlawful Contributions or Other Payments. Except as otherwise disclosed in the Prospectus, neither the Company nor any of
its subsidiaries nor, to the best of the Company’s knowledge, any employee or agent of the Company or any subsidiary, has
made any contribution or other payment to any official of, or candidate for, any federal, state or foreign office in violation
of any law or of the character required to be disclosed in the Registration Statement and the Prospectus.


 






    	 	12	 



     


    

 


(ee)    Compliance
with Environmental Laws. Except as described in the Prospectus and except as would not reasonably be expected, individually
or in the aggregate, to result in a Material Adverse Change; (i) neither the Company nor any of its subsidiaries is in violation
of any federal, state, local or foreign statute, law, rule, regulation, ordinance, code, policy or rule of common law or any judicial
or administrative interpretation thereof, including any judicial or administrative order, consent, decree or judgment, relating
to pollution or protection of human health, the environment (including, without limitation, ambient air, surface water, groundwater,
land surface or subsurface strata) or wildlife, including, without limitation, laws and regulations relating to the release or
threatened release of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous substances, petroleum or petroleum
products (collectively, “Hazardous Materials”) or to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Hazardous Materials (collectively, “Environmental Laws”), (ii)
the Company and its subsidiaries have all permits, authorizations and approvals required under any applicable Environmental Laws
and are each in compliance with their requirements, (iii) there are no pending or, to the Company’s knowledge, threatened
administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against the Company or any of its subsidiaries and (iv) there are
no events or circumstances that might reasonably be expected to form the basis of an order for clean-up or remediation, or an
action, suit or proceeding by any private party or governmental body or agency, against or affecting the Company or any of its
subsidiaries relating to Hazardous Materials or any Environmental Laws.


 


(ff)     ERISA
Compliance. Except as otherwise disclosed in the Prospectus, the Company and its subsidiaries 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, its subsidiaries
or their “ERISA Affiliates” (as defined below) are in compliance in all respects with ERISA, except as would not reasonably
be expected, individually or in the aggregate, to result in a Material Adverse Effect. “ERISA Affiliate” means,
with respect to the Company or any of its subsidiaries, 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 or such subsidiary 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, its subsidiaries or any of their ERISA Affiliates that would reasonably be expected, individually
or in the aggregate, to have a Material Adverse Effect. Except as would not reasonably be expected, individually or in the aggregate,
to have a Material Adverse Effect, no “employee benefit plan” established or maintained by the Company, its subsidiaries
or any of their ERISA Affiliates, if such “employee benefit plan” were terminated, would have any “amount of
unfunded benefit liabilities” (as defined under ERISA). Neither the Company, its subsidiaries nor any of their ERISA Affiliates
has incurred or reasonably expects to incur any 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, its subsidiaries or any of their ERISA Affiliates
that is intended to be qualified under Section 401(a) of the Code is so qualified and nothing has occurred, whether by action
or failure to act, which would cause the loss of such qualification.


 






    	 	13	 



     


    

 


(gg)   Brokers.
Except as otherwise disclosed in the Prospectus, there is no broker, finder or other party that is entitled to receive from the
Company any brokerage or finder’s fee or other fee or commission as a result of any transactions contemplated by this Agreement.


 


(hh)    No
Outstanding Loans or Other Extensions of Credit. The Company does not have any outstanding extension of credit, in the form
of a personal loan, to or for any director or executive officer (or equivalent thereof) of the Company except for such extensions
of credit as are expressly permitted by Section 13(k) of the Exchange Act.


 


(ii)       Compliance
with Laws. The Company and its subsidiaries have been and are in compliance with all applicable laws, rules and regulations
of the jurisdictions in which it is conducting business, except where failure to be so in compliance could not be expected, individually
or in the aggregate, to result in a Material Adverse Change.


 


(jj)      Dividend
Restrictions. Except as disclosed in the Prospectus, and except as otherwise prohibited or restricted as a result of the Chapter
11 Proceedings, no subsidiary of the Company is prohibited or restricted, directly or indirectly, from paying dividends to the
Company, or from making any other distribution with respect to such subsidiary’s equity securities or from repaying to the
Company or any other subsidiary of the Company any amounts that may from time to time become due under any loans or advances to
such subsidiary from the Company or from transferring any property or assets to the Company or to any other subsidiary.


 


(kk)    Anti-Corruption
and Anti-Bribery Laws. Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company,
any director, officer, employee, agent, affiliate or other person acting on behalf of the Company or any of its subsidiaries has,
in the course of its actions for, or on behalf of, the Company or any of its subsidiaries (i) used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful expenses relating to political activity; (ii) made or taken any act
in furtherance of an offer, promise, or authorization of any direct or indirect unlawful payment or benefit to any foreign or
domestic government official or employee, including of any government-owned or controlled entity or public international organization,
or any political party, party official, or candidate for political office; (iii) violated or is in violation of any provision
of the U.S. Foreign Corrupt Practices Act of 1977, as amended (the “FCPA”), the UK Bribery Act 2010, or any
other applicable anti-bribery or anti-corruption law; or (iv) made, offered, authorized, requested, or taken an act in furtherance
of any unlawful bribe, rebate, payoff, influence payment, kickback or other unlawful payment or benefit. The Company and its subsidiaries
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.


 


(ll)      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 applicable jurisdictions, the rules and regulations thereunder and any related
or similar applicable rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively,
the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Money Laundering Laws
is pending or, to the best knowledge of the Company, threatened.


 






    	 	14	 



     


    

 


(mm)  [Reserved.]


 


(nn)   Sanctions.
Neither the Company nor any of its subsidiaries, directors, officers, or employees, nor, to the knowledge of the Company,
after due inquiry, any agent, affiliate or other person acting on behalf of the Company or any of its subsidiaries is currently
the subject or the target of any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Department of
the Treasury (“OFAC”) or the U.S. Department of State, the United Nations Security Council, the European Union,
Her Majesty’s Treasury of the United Kingdom, or other relevant sanctions authority (collectively, “Sanctions”);
nor is the Company or any of its subsidiaries located, organized or resident in a country or territory that is the subject or
the target of Sanctions, including, without limitation, Crimea, Cuba, Iran, North Korea, and Syria; and the Company will not directly
or indirectly use the proceeds of this offering, or lend, contribute or otherwise make available such proceeds to any subsidiary,
or any joint venture partner or other person or entity, for the purpose of financing the activities of or business with any person,
or in any country or territory, that at the time of such financing, is the subject or the target of Sanctions or in any other
manner that will result in a violation by any person (including any person participating in the transaction whether as underwriter,
advisor, investor or otherwise) of applicable Sanctions. For the past five years, the Company and its subsidiaries have not knowingly
engaged in and are not now knowingly engaged in any dealings or transactions with any person that at the time of the dealing or
transaction is or was the subject or the target of Sanctions or with any Sanctioned Country.


 


(oo)     Sarbanes-Oxley.
The Company is in compliance, in all material respects, with all applicable provisions of the Sarbanes-Oxley Act of 2002 and the
rules and regulations promulgated thereunder.


 


(pp)    Duties,
Transfer Taxes, Etc. No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other
taxes are payable by the Agent in the United States or any political subdivision or taxing authority thereof or therein in connection
with the execution, delivery or performance of this Agreement by the Company or the sale and delivery by the Company of the Shares.


 


(qq)    Cybersecurity.
The Company and its subsidiaries’ information technology assets and equipment, computers, systems, networks, hardware, software,
websites, applications, and databases (collectively, “IT Systems”) are adequate for, and operate and perform
in all material respects as required in connection with the operation of the business of the Company and its subsidiaries as currently
conducted, free and clear of all material bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants. The
Company and its subsidiaries have implemented and maintained commercially reasonable physical, technical and administrative controls,
policies, procedures, and safeguards to maintain and protect their material confidential information and the integrity, continuous
operation, redundancy and security of all IT Systems and data, including “Personal Data,” used in connection with
their businesses. “Personal Data” means (i) a natural person’s name, street address, telephone number,
e-mail address, photograph, social security number or tax identification number, driver’s license number, passport number,
credit card number, bank information, or customer or account number; (ii) any information which would qualify as “personally
identifying information” under the Federal Trade Commission Act, as amended; (iii) “personal data” as defined
by GDPR; (iv) any information which would qualify as “protected health information” under the Health Insurance Portability
and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act (collectively,
 “HIPAA”); and (v) any other piece of information that allows the identification of such natural person, or
his or her family, or permits the collection or analysis of any data related to an identified person’s health or sexual
orientation. There have been no breaches, violations, outages or unauthorized uses of or accesses to same, except for those that
have been remedied without material cost or liability or the duty to notify any other person, nor any incidents under internal
review or investigations relating to the same. The Company and its subsidiaries are presently in material compliance with all
applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory
authority, internal policies and contractual obligations relating to the privacy and security of IT Systems and Personal Data
and to the protection of such IT Systems and Personal Data from unauthorized use, access, misappropriation or modification.


 






    	 	15	 



     


    

 


(rr)      Compliance
with Data Privacy Laws. The Company and its subsidiaries are, and at all prior times were, in material compliance with all
applicable state and federal data privacy and security laws and regulations, including without limitation HIPAA, and the Company
and its subsidiaries have taken commercially reasonable actions to prepare to comply with, and since May 25, 2018, have been and
currently are in compliance with, the European Union General Data Protection Regulation (“GDPR”) (EU 2016/679)
(collectively, the “Privacy Laws”). To ensure compliance with the Privacy Laws, the Company and its subsidiaries
have in place, comply with, and take appropriate steps reasonably designed to ensure compliance in all material respects with
their policies and procedures relating to data privacy and security and the collection, storage, use, disclosure, handling, and
analysis of Personal Data (the “Policies”). The Company and its subsidiaries have made all disclosures to users
or customers required by applicable laws and regulatory rules or requirements, and none of such disclosures made or contained
in any Policy have, to the knowledge of the Company, been inaccurate or in violation of any applicable laws and regulatory rules
or requirements in any material respect. The Company further certifies that neither it nor any subsidiary: (i) has received notice
of any actual or potential liability under or relating to, or actual or potential violation of, any of the Privacy Laws, and has
no knowledge of any event or condition that would reasonably be expected to result in any such notice; (ii) is currently conducting
or paying for, in whole or in part, any investigation, remediation, or other corrective action pursuant to any Privacy Law; or
(iii) is a party to any order, decree, or agreement that imposes any obligation or liability under any Privacy Law.


 


(ss)    Other
Underwriting 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.


 


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


 






    	 	16	 



     


    

 


(uu)   No
Labor Dispute. No labor disturbance by or dispute with employees of the Company or any of the Company’s subsidiaries
exists or, to the best knowledge (without having undertaken any independent inquiry) of the Company, is contemplated or to the
best knowledge of the Company, is threatened and the Company is not aware of any existing or imminent labor disturbance by, or
dispute with, the employees of any of the Company’s or any of the Company’s subsidiaries’ principal suppliers,
contractors or customers, except as would not have a Material Adverse Effect.


 


(vv)   Franchise
Agreements. Except as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect:
(i) each of the franchise agreements entered into by the Company or any of its subsidiaries and described or referred to in the
Registration Statement or the Prospectus (collectively, the “Franchise Agreements”) is in full force and effect;
(ii) to the Company’s knowledge, none of the persons or entities (the “Franchise Owners”) holding franchise
rights from the Company or any of its subsidiary is in breach or violation of, or in default under (nor has any event occurred
which with notice, lapse of time, or both would result in any breach or violation of, or constitute a default under) any such
Franchise Agreement; (iii) no event or circumstance has occurred which, with notice, lapse of time or both, would create a right
to terminate any Franchise Agreement prior to the termination of its stated term; and (iv) neither the Company nor any Subsidiary
has received, or been threatened with, a termination notice from any Franchise Owner or any other party with respect to a Franchise
Agreement, nor is the Company aware that any person or entity intends to furnish such a notice.


 


(ww)  Franchise
Owners and Franchises. To the Company’s knowledge: (i) each of the Franchise Owners and the franchises (collectively,
the “Franchises”) operated by any of the Franchise Owners has all necessary licenses, authorizations, consents
and approvals and has made all necessary filings required under any federal, state, local or foreign law, regulation or rule,
and has obtained all necessary licenses, authorizations, consents and approvals from other persons, in order to conduct its business,
except where the failure to obtain any such licenses, authorizations, consents or approvals or make any such filings could not
be expected, individually or in the aggregate, to result in a Material Adverse Change; (ii) none of the Franchise Owners is in
violation of, or in default under, or has received notice of any proceedings relating to revocation or modification of, any such
license, authorization, consent or approval or any federal, state, local or foreign law, regulation or rule (including those federal,
state, foreign or local laws, regulations or rules applicable to reimbursement for healthcare or any related services) or any
decree, order or judgment applicable to such Franchise Owner or the business conducted thereby, except where such violation, default,
revocation or modification could not, individually or in the aggregate, be expected to result in a Material Adverse Change; and
(iii) there are no actions, suits, claims, investigations or proceedings pending or threatened or contemplated to which any of
the Franchise Owners is or would be a party or of which any of their respective properties is or would be subject at law or in
equity, before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency,
or before or by any self-regulatory organization or other non-governmental regulatory authority, except any such action, suit,
claim, investigation or proceeding which could not result in a judgment, decree or order resulting, individually or in the aggregate,
in a Material Adverse Change.


 


Any certificate signed
by any officer or representative of the Company or any of its subsidiaries and delivered to the Agent or counsel for the Agent
in connection with an issuance of Shares shall be deemed a representation and warranty by the Company to the Agent as to the matters
covered thereby on the date of such certificate.


 






    	 	17	 



     


    

 


The
Company acknowledges that the Agent and, for purposes of the opinions to be delivered pursuant to ‎Section 4(o)
hereof, counsel to the Company and counsel to the Agent, will rely upon the accuracy and truthfulness of the foregoing representations
and hereby consents to such reliance.


 


Section 3. ISSUANCE AND SALE OF COMMON
SHARES


 


(a)       Sale
of Securities. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and
conditions herein set forth, the Company and the Agent agree that the Company may from time to time seek to sell Shares through
the Agent, acting as sales agent, or directly to the Agent, acting as principal, as follows, with an aggregate Sales Price of
up to the Maximum Program Amount, based on and in accordance with Issuance Notices as the Company may deliver, during the Agency
Period.


 


(b)       Mechanics
of Issuances.


 


(i)       
Issuance Notice. Upon the terms and subject to the conditions set forth herein, on any Trading Day during the Agency Period
on which the conditions set forth in ‎Section 5(a) and ‎Section 5(b) shall have been satisfied, the
Company may exercise its right to request an issuance of Shares by delivering to the Agent an Issuance Notice; provided, however,
that (A) in no event may the Company deliver an Issuance Notice to the extent that (I) the sum of (x) the aggregate Sales Price
of the requested Issuance Amount, plus (y) the aggregate Sales Price of all Shares issued under all previous Issuance Notices
effected pursuant to this Agreement, would exceed the Maximum Program Amount; and (B) prior to delivery of any Issuance Notice,
the period set forth for any previous Issuance Notice shall have expired or been terminated. An Issuance Notice shall be considered
delivered on the Trading Day that it is received by e-mail to the persons set forth in Schedule A hereto and confirmed by the
Company by telephone (including a voicemail message to the persons so identified), with the understanding that, with adequate
prior written notice, the Agent may modify the list of such persons from time to time.


 


(ii)       Agent
Efforts. Upon the terms and subject to the conditions set forth in this Agreement, upon the receipt of an Issuance Notice,
the Agent will use its commercially reasonable efforts consistent with its normal sales and trading practices to place the Shares
with respect to which the Agent has agreed to act as sales agent, subject to, and in accordance with the information specified
in, the Issuance Notice, unless the sale of the Shares described therein has been suspended, cancelled or otherwise terminated
in accordance with the terms of this Agreement. For the avoidance of doubt, the parties to this Agreement may modify an Issuance
Notice at any time provided they both agree in writing to any such modification.


 


(iii)       Method
of Offer and Sale. The Shares may be offered and sold (A) in negotiated transactions with the consent of the Company or (B)
by any other method permitted by law deemed to be an “at the market offering” as defined in Rule 415(a)(4) under the
Securities Act, including block transactions, sales made directly on the Principal Market or sales made into any other existing
trading market of the Common Shares. Nothing in this Agreement shall be deemed to require either party to agree to the method
of offer and sale specified in the preceding sentence, and (except as specified in clause (A) above) the method of placement of
any Shares by the Agent shall be at the Agent’s discretion.


 






    	 	18	 



     


    

 


(iv)      Confirmation
to the Company. If acting as sales agent hereunder, the Agent will provide written confirmation to the Company no later than
the opening of the Trading Day next following the Trading Day on which it has placed Shares hereunder setting forth the number
of shares sold on such Trading Day, the corresponding Sales Price and the Issuance Price payable to the Company in respect thereof.


 


(v)       Settlement.
Each issuance of Shares will be settled on the applicable Settlement Date for such issuance of Shares and, subject to the provisions
of ‎Section 5, on or before each Settlement Date, the Company will, or will cause its transfer agent to, electronically
transfer the Shares being sold by crediting the Agent or its designee’s account at The Depository Trust Company through
its Deposit/Withdrawal At Custodian (DWAC) System, or by such other means of delivery as may be mutually agreed upon by the parties
hereto and, upon receipt of such Shares, which in all cases shall be freely tradable, transferable, registered shares in good
deliverable form, the Agent will deliver, by wire transfer of immediately available funds, the related Issuance Price in same
day funds delivered to an account designated by the Company prior to the Settlement Date. The Company may sell Shares to the Agent
as principal at a price agreed upon at each relevant time Shares are sold pursuant to this Agreement (each, a “Time of
Sale”).


 


(vi)       Suspension
or Termination of Sales. Consistent with standard market settlement practices, the Company or the Agent may, upon notice to
the other party hereto in writing or by telephone (confirmed immediately by verifiable email), suspend any sale of Shares, and
the period set forth in an Issuance Notice shall immediately terminate; provided, however, that (A) such suspension and
termination shall not affect or impair either party’s obligations with respect to any Shares placed or sold hereunder prior
to the receipt of such notice; (B) if the Company suspends or terminates any sale of Shares after the Agent confirms such sale
to the Company, the Company shall still be obligated to comply with ‎Section 3(b)(v) with respect to such Shares;
and (C) if the Company defaults in its obligation to deliver Shares on a Settlement Date, the Company agrees that it will hold
the Agent harmless against any loss, claim, damage or expense (including, without limitation, penalties, interest and reasonable
legal fees and expenses), as incurred, arising out of or in connection with such default by the Company. The parties hereto acknowledge
and agree that, in performing its obligations under this Agreement, the Agent may borrow Common Shares from stock lenders in the
event that the Company has not delivered Shares to settle sales as required by subsection (v) above, and may use the Shares to
settle or close out such borrowings. The Company agrees that no such notice shall be effective against the Agent unless it is
made to the persons identified in writing by the Agent pursuant to ‎Section 3(b)(i).


 


(vii)     No
Guarantee of Placement, Etc. The Company acknowledges and agrees that (A) there can be no assurance that the Agent will be
successful in placing Shares; (B) the Agent will incur no liability or obligation to the Company or any other Person if it does
not sell Shares; and (C) the Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this
Agreement, except as otherwise specifically agreed by the Agent and the Company.


 






    	 	19	 



     


    

 


(viii)    Material
Non-Public Information. Notwithstanding any other provision of this Agreement, the Company and the Agent agree that the Company
shall not deliver any Issuance Notice to the Agent, and the Agent shall not be obligated to place any Shares, during any period
in which the Company is in possession of material non-public information.


 


(c)       Fees.
As compensation for services rendered, the Company shall pay to the Agent, on the applicable Settlement Date, the Selling Commission
for the applicable Issuance Amount (including with respect to any suspended or terminated sale pursuant to Section 3(b)(vi))
by the Agent deducting the Selling Commission from the applicable Issuance Amount.


 


(d)       Expenses.
The Company agrees to pay all costs, fees and expenses incurred in connection with the performance of its obligations
hereunder and in connection with the transactions contemplated hereby, including without limitation (i) all expenses
incident to the issuance and delivery of the Shares (including all printing and engraving costs); (ii) all fees and
expenses of the registrar and transfer agent of the Shares; (iii) all necessary issue, transfer and other stamp taxes in
connection with the issuance and sale of the Shares; (iv) all fees and expenses of the Company’s counsel,
independent public or certified public accountants and other advisors; (v) all costs and expenses incurred in connection
with the preparation, printing, filing, shipping and distribution of the Registration Statement (including financial
statements, exhibits, schedules, consents and certificates of experts), the Prospectus, any Free Writing Prospectus (as
defined below) prepared by or on behalf of, used by, or referred to by the Company, and all amendments and supplements
thereto, and this Agreement; (vi) all filing fees, attorneys’ fees and expenses incurred by the Company or the
Agent in connection with qualifying or registering (or obtaining exemptions from the qualification or registration of) all or
any part of the Shares for offer and sale under the state securities or blue sky laws or the provincial securities laws of
Canada, and, if requested by the Agent, preparing and printing a “Blue Sky Survey” or memorandum and a
 “Canadian wrapper”, and any supplements thereto, advising the Agent of such qualifications, registrations,
determinations and exemptions; (vii) the reasonable fees and disbursements of the Agent’s counsel, including the
reasonable fees and expenses of counsel for the Agent in connection with, FINRA review, if any, and approval of the
Agent’s participation in the offering and distribution of the Shares; (viii) the filing fees incident to FINRA
review, if any; (ix) the costs and expenses of the Company relating to investor presentations on any “road show”
undertaken in connection with the marketing of the offering of the Shares, including, without limitation, expenses associated
with the preparation or dissemination of any electronic road show, expenses associated with the production of road show
slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the
prior approval of the Company, travel and lodging expenses of the representatives, employees and officers of the Company and
of the Agent and any such consultants, and the cost of any aircraft chartered in connection with the road show; and
(x) the fees and expenses associated with listing the Shares on the Principal Market. The fees and disbursements of
Agent’s counsel pursuant to subsections (vi) and (vii) above shall not exceed an aggregate of $200,000 in connection
with the execution of this Agreement and the first Issuance Notice.


 


Section 4. ADDITIONAL COVENANTS


 


The Company covenants
and agrees with the Agent as follows, in addition to any other covenants and agreements made elsewhere in this Agreement:


 






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(a)       Exchange
Act Compliance. During the Agency Period, the Company shall (i) file, on a timely basis, with the Commission all reports and
documents required to be filed under Section 13, 14 or 15 of the Exchange Act in the manner and within the time periods required
by the Exchange Act; and (ii) either (A) include in its quarterly reports on Form 10-Q and its annual reports on Form 10-K, a
summary detailing, for the relevant reporting period, (1) the number of Shares sold through the Agent pursuant to this Agreement
and (2) the net proceeds received by the Company from such sales or (B) prepare a prospectus supplement containing, or include
in such other filing permitted by the Securities Act or Exchange Act (each an “Interim Prospectus Supplement”),
such summary information and, at least once a quarter and subject to this Section 4, file such Interim Prospectus Supplement pursuant
to Rule 424(b) under the Securities Act (and within the time periods required by Rule 424(b) and Rule 430B under the Securities
Act)).


 


(b)       Securities
Act Compliance. After the date of this Agreement, the Company shall promptly advise the Agent in writing (i) of the receipt
of any comments of, or requests for additional or supplemental information from, the Commission; (ii) of the time and date of
any filing of any post-effective amendment to the Registration Statement, any Rule 462(b) Registration Statement or any amendment
or supplement to the Prospectus, any Free Writing Prospectus; (iii) of the time and date that any post-effective amendment to
the Registration Statement or any Rule 462(b) Registration Statement becomes effective; and (iv) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, any Rule
462(b) Registration Statement or any amendment or supplement to the Prospectus or of any order preventing or suspending the use
of any Free Writing Prospectus or the Prospectus, or of any proceedings to remove, suspend or terminate from listing or quotation
the Common Shares from any securities exchange upon which they are listed for trading or included or designated for quotation,
or of the threatening or initiation of any proceedings for any of such purposes. If the Commission shall enter any such stop order
at any time, the Company will use its best efforts to obtain the lifting of such order as soon as practicable. Additionally, the
Company agrees that it shall comply with the provisions of Rule 424(b) and Rule 433, as applicable, under the Securities Act and
will use its reasonable efforts to confirm that any filings made by the Company under such Rule 424(b) or Rule 433 were received
in a timely manner by the Commission.


 


(c)       Amendments
and Supplements to the Prospectus and Other Securities Act Matters. If any event shall occur or condition exist as a result
of which it is necessary to amend or supplement the Prospectus so that the Prospectus does not include an untrue statement of
a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances
when the Prospectus is delivered to a purchaser, not misleading, or if in the opinion of the Agent or counsel for the Agent it
is otherwise necessary to amend or supplement the Prospectus to comply with applicable law, including the Securities Act, the
Company agrees (subject to Section 4(d) and 4(f)) to promptly prepare, file with the Commission and furnish at its own expense
to the Agent, amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented
will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus,
as amended or supplemented, will comply with applicable law including the Securities Act. Neither the Agent’s consent to,
or delivery of, any such amendment or supplement shall constitute a waiver of any of the Company’s obligations under Sections
4(d) and 4(f). Notwithstanding the foregoing, the Company will not be required to file such amendment or supplement if there is
no pending Issuance Notice and the Company believes that it is in its best interest not to file such amendment or supplement.


 






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(d)       Agent’s
Review of Proposed Amendments and Supplements. Prior to amending or supplementing the Registration Statement (including any
registration statement filed under Rule 462(b) under the Securities Act) or the Prospectus (excluding any amendment or supplement
through incorporation of any report filed under the Exchange Act), the Company shall furnish to the Agent for review, a reasonable
amount of time prior to the proposed time of filing or use thereof, a copy of each such proposed amendment or supplement, and
the Company shall not file or use any such proposed amendment or supplement without the Agent’s prior consent, and to file
with the Commission within the applicable period specified in Rule 424(b) under the Securities Act any prospectus required to
be filed pursuant to such Rule.


 


(e)       Use
of Free Writing Prospectus. Neither the Company nor the Agent has prepared, used, referred to or distributed, or will prepare,
use, refer to or distribute, without the other party’s prior written consent, any “written communication” that
constitutes a “free writing prospectus” as such terms are defined in Rule 405 under
the Securities Act with respect to the offering contemplated by this
Agreement (any such free writing prospectus being referred to herein as a “Free Writing Prospectus”).


 


(f)       Free
Writing Prospectuses. The Company shall furnish to the Agent for review, a reasonable amount of time prior to the proposed
time of filing or use thereof, a copy of each proposed free writing prospectus or any amendment or supplement thereto to be prepared
by or on behalf of, used by, or referred to by the Company and the Company shall not file, use or refer to any proposed free writing
prospectus or any amendment or supplement thereto without the Agent’s consent, such consent not to be unreasonably withheld.
The Company shall furnish to the Agent, without charge, as many copies of any free writing prospectus prepared by or on behalf
of, or used by the Company, as the Agent may reasonably request. If at any time when a prospectus is required by the Securities
Act (including, without limitation, pursuant to Rule 173(d)) to be delivered in connection with sales of the Shares (but
in any event if at any time through and including the date of this Agreement) there occurred or occurs an event or development
as a result of which any free writing prospectus prepared by or on behalf of, used by, or referred to by the Company conflicted
or would conflict with the information contained in the Registration Statement or included or would include an untrue statement
of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the
light of the circumstances prevailing at that subsequent time, not misleading, the Company shall promptly amend or supplement
such free writing prospectus to eliminate or correct such conflict or so that the statements in such free writing prospectus as
so amended or supplemented will not include an untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances prevailing at such subsequent time, not misleading,
as the case may be; provided, however, that prior to amending or supplementing any such free writing prospectus, the Company
shall furnish to the Agent for review, a reasonable amount of time prior to the proposed time of filing or use thereof, a copy
of such proposed amended or supplemented free writing prospectus and the Company shall not file, use or refer to any such amended
or supplemented free writing prospectus without the Agent’s consent, such consent not to be unreasonably withheld.


 






    	 	22	 



     


    

 


(g)       Filing
of Agent Free Writing Prospectuses. The Company shall not take any action that would result in the Agent or the Company being
required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or
on behalf of the Agent that the Agent otherwise would not have been required to file thereunder.


 


(h)       Copies
of Registration Statement and Prospectus. After the date of this Agreement through the last time that a prospectus is required
by the Securities Act (including, without limitation, pursuant to Rule 173(d)) to be delivered in connection with sales of
the Shares, the Company agrees to furnish the Agent with copies (which may be electronic copies) of the Registration Statement
and each amendment thereto, and with copies of the Prospectus and each amendment or supplement thereto in the form in which it
is filed with the Commission pursuant to the Securities Act or Rule 424(b) under the Securities Act, both in such quantities
as the Agent may reasonably request from time to time; and, if the delivery of a prospectus is required under the Securities Act
or under the blue sky or securities laws of any jurisdiction at any time on or prior to the applicable Settlement Date for any
period set forth in an Issuance Notice in connection with the offering or sale of the Shares and if at such time any event has
occurred 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 any material fact necessary in order to make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it is necessary during such
same period to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in
the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Agent and to request that the Agent
suspend offers to sell Shares (and, if so notified, the Agent shall cease such offers as soon as practicable); and if the Company
decides to amend or supplement the Registration Statement or the Prospectus as then amended or supplemented, to advise the Agent
promptly by telephone (with confirmation in writing) and to prepare and cause to be filed promptly with the Commission an amendment
or supplement to the Registration Statement or the Prospectus as then amended or supplemented that will correct such statement
or omission or effect such compliance; provided, however, that if during such same period the Agent is required to deliver a prospectus
in respect of transactions in the Shares, the Company shall promptly prepare and file with the Commission such an amendment or
supplement.


 


(i)       Blue
Sky Compliance. The Company shall cooperate with the Agent and counsel for the Agent to qualify or register the Shares for
sale under (or obtain exemptions from the application of) the state securities or blue sky laws or Canadian provincial securities
laws of those jurisdictions designated by the Agent, shall comply with such laws and shall continue such qualifications, registrations
and exemptions in effect so long as required for the distribution of the Shares. The Company shall not be required to qualify
as a foreign corporation or to take any action that would subject it to general service of process in any such jurisdiction where
it is not presently qualified or where it would be subject to taxation as a foreign corporation. The Company will advise the Agent
promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Shares for offering,
sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the
issuance of any order suspending such qualification, registration or exemption, the Company shall use its best efforts to obtain
the withdrawal thereof as soon as practicable.


 






    	 	23	 



     


    

 


(j)       Earnings
Statement. As soon as practicable, the Company will make generally available to its security holders and to the Agent an earnings
statement (which need not be audited) covering a period of at least twelve months beginning with the first fiscal quarter of the
Company occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and
Rule 158 under the Securities Act.


 


(k)       Listing;
Reservation of Shares. (The Company has filed an appeal with the Principal Market with respect to the Delisting. The Company
will reserve and keep available at all times, free of preemptive rights, Shares for the purpose of enabling the Company to satisfy
its obligations under this Agreement.


 


(l)       Transfer
Agent. The Company shall engage and maintain, at its expense, a registrar and transfer agent for the Shares.


 


(m)       Due
Diligence. During the term of this Agreement, the Company will reasonably cooperate with any reasonable due diligence review
conducted by the Agent in connection with the transactions contemplated hereby, including, without limitation, providing information
and making available documents and senior corporate officers, during normal business hours and at the Company’s principal
offices, as the Agent may reasonably request from time to time.


 


(n)       Representations
and Warranties. The Company acknowledges that each delivery of an Issuance Notice and each delivery of Shares on a Settlement
Date shall be deemed to be (i) an affirmation to the Agent that the representations and warranties of the Company contained in
or made pursuant to this Agreement are true and correct as of the date of such Issuance Notice or of such Settlement Date, as
the case may be, as though made at and as of each such date, except as may be disclosed in the Prospectus (including any documents
incorporated by reference therein and any supplements thereto); and (ii) an undertaking that the Company will advise the
Agent if any of such representations and warranties will not be true and correct as of the Settlement Date for the Shares relating
to such Issuance Notice, as though made at and as of each such date (except that such representations and warranties shall be
deemed to relate to the Registration Statement and the Prospectus as amended and supplemented relating to such Shares).


 


(o)       Deliverables
at Triggering Event Dates; Certificates. The Company agrees that on or prior to the date of the first Issuance Notice and,
during the term of this Agreement after the date of the first Issuance Notice, upon:


 


(A)       the
filing of the Prospectus or the amendment or supplement of any Registration Statement or Prospectus (other than a prospectus supplement
relating solely to an offering of securities other than the Shares or a prospectus filed pursuant to Section 4(a)(ii)(B)), 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 Prospectus;


 


(B)       the
filing with the Commission of an annual report on Form 10-K or a quarterly report on Form 10-Q (including any Form 10-K/A or Form
10-Q/A containing amended financial information or a material amendment to the previously filed annual report on Form 10-K or
quarterly report on Form 10-Q), in each case, of the Company; or


 






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(C)       the
filing with the Commission of a current report on Form 8-K of the Company containing amended financial information (other than
information “furnished” pursuant to Item 2.02 or 7.01 of Form 8-K or to provide disclosure pursuant to Item 8.01 of
Form 8-K relating to reclassification of certain properties as discontinued operations in accordance with Statement of Financial
Accounting Standards No. 144) that is material to the offering of securities of the Company in the Agent’s reasonable discretion;


 


(any
such event, a “Triggering Event Date”), the Company shall furnish the Agent (but in the case of clause (C)
above only if the Agent reasonably determines that the information contained in such current report on Form 8-K of the Company
is material) with a certificate as of the Triggering Event Date, in the form and substance satisfactory to the Agent and its counsel,
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 amended or supplemented, (A) confirming that the representations and warranties of the Company
contained in this Agreement are true and correct, (B) confirming that the Company has performed all of its obligations hereunder
to be performed on or prior to the date of such certificate and as to the matters set forth in ‎Section 5(a)(iii) hereof,
and (C) containing any other certification that the Agent shall reasonably request. The requirement to provide a certificate under
this Section 4(o) shall be waived for any Triggering Event Date occurring at a time when no Issuance Notice is pending or a suspension
is in effect, which waiver shall continue until the earlier to occur of the date the Company delivers instructions for the sale
of Shares hereunder (which for such calendar quarter shall be considered a Triggering Event Date) and the next occurring Triggering
Event Date. Notwithstanding the foregoing, if the Company subsequently decides to sell Shares following a Triggering Event Date
when a suspension was in effect and did not provide the Agent with a certificate under this Section 4(o), then before the Company
delivers the instructions for the sale of Shares or the Agent sells any Shares pursuant to such instructions, the Company shall
provide the Agent with a certificate in conformity with this Section 4(o) dated as of the date that the instructions for the sale
of Shares are issued.


 


(p)       Legal
Opinion. On or prior to the date of the first Issuance Notice and on or prior to each Triggering Event Date with respect to
which the Company is obligated to deliver a certificate pursuant to Section 4(o) for which no waiver is applicable and excluding
the date of this Agreement, a negative assurances letter and the written legal opinion of White & Case LLP, counsel to the
Company, each dated the date of delivery, in form and substance reasonably satisfactory to Agent and its counsel, 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. In lieu of such opinions for subsequent periodic filings, in the discretion
of the Agent, the Company may furnish a reliance letter from such counsel to the Agent, permitting the Agent to rely on a previously
delivered opinion letter, modified as appropriate for any passage of time or Triggering Event Date (except that statements in
such prior opinion shall be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented as of
such Triggering Event Date).


 


(q)       Comfort
Letters. On or prior to the date of the first Issuance Notice and on or prior to each Triggering Event Date with respect to
which the Company is obligated to deliver a certificate pursuant to Section 4(o) for which no waiver is applicable and excluding
the date of this Agreement, the Company shall cause Ernst & Young LLP, the independent
registered public accounting firm who have audited the financial statements included or incorporated by reference in the Registration
Statement, to furnish the Agent a comfort letter, dated the date of delivery, in form and substance reasonably satisfactory to
the Agent and its counsel, substantially similar to the form previously provided to the Agent and its counsel; provided, however,
that any such comfort letters will only be required on the Triggering Event Date specified to the extent that it contains financial
statements filed with the Commission under the Exchange Act and incorporated or deemed to be incorporated by reference into a
Prospectus. If requested by the Agent, the Company shall also 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 of a current report on Form 8-K
containing material amended financial information of the Company, including the restatement of the Company’s financial statements.
The Company shall be required to furnish no more than one comfort letter from each independent registered public accounting firm
hereunder per each filing of an annual report on Form 10-K or a quarterly report on Form 10-Q.


 






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(r)       Secretary’s
Certificate. On or prior to the date of the first Issuance Notice and on or prior to each Triggering Event Date, the Company
shall furnish the Agent a certificate executed by the Secretary of the Company, signing in such capacity, dated the date of delivery
(i) certifying that attached thereto are true and complete copies of the resolutions duly adopted by the Board of Directors of
the Company authorizing the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby
(including, without limitation, the issuance of the Shares pursuant to this Agreement), which authorization shall be in full force
and effect on and as of the date of such certificate, (ii) certifying and attesting to the office, incumbency, due authority and
specimen signatures of each Person who executed this Agreement for or
on behalf of the Company, and (iii) containing any other certification that the Agent shall reasonably request.


 


(s)      
Agent’s Own Account; Clients’ Account. The Company consents to the Agent trading, in compliance with
applicable law, in the Common Shares for the Agent’s own account and for the account of its clients at the same time as
sales of the Shares occur pursuant to this Agreement.


 


(t)       Investment
Limitation. The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares
in such a manner as would require the Company or any of its subsidiaries to register as an investment company under the Investment
Company Act.


 


(u)       Market
Activities. The Company will not take, directly or indirectly, any action designed to or that might be reasonably expected
to cause or result in stabilization or manipulation of the price of the Shares or any other reference security, whether to facilitate
the sale or resale of the Shares or otherwise, and the Company will, and shall cause each of its affiliates to, comply with all
applicable provisions of Regulation M. If the limitations of Rule 102 of Regulation M (“Rule 102”) do not apply
with respect to the Shares or any other reference security pursuant to any exception set forth in Section (d) of Rule 102, then
promptly upon notice from the Agent (or, if later, at the time stated in the notice), the Company will, and shall cause each of
its affiliates to, comply with Rule 102 as though such exception were not available but the other provisions of Rule 102 (as interpreted
by the Commission) did apply. The Company shall promptly notify the Agent if it no longer meets the requirements set forth in
Section (d) of Rule 102.


 






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(v)       Notice
of Other Sale. Without the written consent of the Agent, the Company will not, directly or indirectly, offer to sell, sell,
contract to sell, grant any option to sell or otherwise dispose of any Common Shares or securities convertible into or exchangeable
for Common Shares (other than Shares hereunder), warrants or any rights to purchase or acquire Common Shares, or effect a reverse
stock split, recapitalization, share consolidation, reclassification or similar transaction affecting the outstanding Common Shares,
during the period beginning on the third Trading Day immediately prior to the date on which any Issuance Notice is delivered to
the Agent hereunder and ending on the third Trading Day immediately following the Settlement Date with respect to Shares sold
pursuant to such Issuance Notice; and will not directly or indirectly enter into any other “at the market” or continuous
equity transaction offer to sell, sell, contract to sell, grant any option to sell or otherwise dispose of any Common Shares (other
than the Shares offered pursuant to this Agreement) or securities convertible into or exchangeable for Common Shares, warrants
or any rights to purchase or acquire, Common Shares prior to the termination of this Agreement; provided, however, that such restrictions
will not be required in connection with the Company’s (i) issuance or sale of Common Shares, options to purchase Common
Shares or Common Shares issuable upon the exercise of options or other equity awards pursuant to any employee or director share
option, incentive or benefit plan, share purchase or ownership plan, long-term incentive plan, dividend reinvestment plan, inducement
award under Nasdaq rules or other compensation plan of the Company or its subsidiaries, as in effect on the date of this Agreement,
(ii) issuance or sale of Common Shares issuable upon exchange, conversion or redemption of securities or the exercise or vesting
of warrants, options or other equity awards outstanding at the date of this Agreement, and (iii) modification of any outstanding
options, warrants of any rights to purchase or acquire Common Shares.


 


Section 5. CONDITIONS TO DELIVERY
OF ISSUANCE NOTICES AND TO SETTLEMENT


 


(a)       Conditions
Precedent to the Right of the Company to Deliver an Issuance Notice and the Obligation of the Agent to Sell Shares. The right
of the Company to deliver an Issuance Notice hereunder is subject to the satisfaction, on the date of delivery of such Issuance
Notice, and the obligation of the Agent to use its commercially reasonable efforts to place Shares during the applicable period
set forth in the Issuance Notice is subject to the satisfaction, on each Trading Day during the applicable period set forth in
the Issuance Notice, of each of the following conditions:


 


		(i)	Accuracy
                                         of the Company’s Representations and Warranties; Performance by the Company.
                                         The Company shall have delivered the certificate required to be delivered pursuant to
                                         Section 4(o) on or before the date on which delivery of such certificate is required
                                         pursuant to Section 4(o). The Company shall have performed, satisfied and complied
                                         with all covenants, agreements and conditions required by this Agreement to be performed,
                                         satisfied or complied with by the Company at or prior to such date, including, but not
                                         limited to, the covenants contained in ‎Section 4(p), Section 4(q)
                                         and Section 4(r).



 


		(ii)	No Injunction. No statute,
                                         rule, regulation, executive order, decree, ruling or injunction shall have been enacted,
                                         entered, promulgated or endorsed by any court or governmental authority of competent
                                         jurisdiction or any self-regulatory organization having authority over the matters contemplated
                                         hereby that prohibits or directly and materially adversely affects any of the transactions
                                         contemplated by this Agreement, and no proceeding shall have been commenced that may
                                         have the effect of prohibiting or materially adversely affecting any of the transactions
                                         contemplated by this Agreement.



 






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		(iii)	Material Adverse Changes.
                                         Except as disclosed in the Prospectus and the Time of Sale Information, (a) in the judgment
                                         of the Agent there shall not have occurred any Material Adverse Change; and (b) there
                                         shall not have occurred any downgrading, nor shall any notice have been given of any
                                         intended or potential downgrading or of any review for a possible change that does not
                                         indicate the direction of the possible change, in the rating accorded any securities
                                         of the Company or any of its subsidiaries by any “nationally recognized statistical
                                         rating organization” as such term is defined for purposes of Section 3(a)(62) of
                                         the Exchange Act.



 


		(iv)	No
                                         Suspension of Trading in or Delisting of Common Shares; Other Events. The trading
                                         of the Common Shares (including without limitation the Shares) shall not have been suspended
                                         by the Commission, the Principal Market or FINRA and the Common Shares (including without
                                         limitation the Shares) shall have been approved for listing or quotation on and shall
                                         not have been delisted from the Nasdaq Stock Market, the New York Stock Exchange
                                         or any of their constituent markets. There shall not have occurred (and be continuing
                                         in the case of occurrences under clauses (i) and (ii) below) any of the following:
                                         (i) trading or quotation in any of the Company’s securities shall have been
                                         suspended or limited by the Commission or by the Principal Market or trading in securities
                                         generally on either the Principal Market shall have been suspended or limited, or minimum
                                         or maximum prices shall have been generally established on any of such stock exchanges
                                         by the Commission or the FINRA; (ii) a general banking moratorium shall have been
                                         declared by any of federal or New York, authorities; or (iii) there shall have occurred
                                         any outbreak or escalation of national or international hostilities or any crisis or
                                         calamity, or any change in the United States or international financial markets, or any
                                         substantial change or development involving a prospective substantial change in United
                                         States’ or international political, financial or economic conditions, as in the
                                         judgment of the Agent is material and adverse and makes it impracticable to market the
                                         Shares in the manner and on the terms described in the Prospectus or to enforce contracts
                                         for the sale of securities.



 


(b)       Documents
Required to be Delivered on each Issuance Notice Date. The Agent’s obligation to use its commercially reasonable efforts
to place Shares hereunder shall additionally be conditioned upon the delivery to the Agent on or before the Issuance Notice Date
of a certificate in form and substance reasonably satisfactory to the Agent, executed by the Chief Executive Officer,
President or Chief Financial Officer of the Company, to the effect that all conditions to the delivery of such Issuance
Notice shall have been satisfied as at the date of such certificate (which certificate shall not be required if the foregoing
representations shall be set forth in the Issuance Notice).


 






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(c)       No
Misstatement or Material Omission. Agent shall not have advised the Company that the Registration Statement, the Prospectus
or the Times of Sale Information, 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)       Agent
Counsel Legal Opinion. Agent shall have received from Cooley LLP, counsel for Agent, such opinion or opinions, on or before
the date on which the delivery of the Company counsel legal opinion is required pursuant to Section 4(p), with respect to such
matters as Agent may reasonably require, and the Company shall have furnished to such counsel such documents as they request for
enabling them to pass upon such matters.


 


Section
6. INDEMNIFICATION AND CONTRIBUTION


 


(a)       Indemnification
of the Agent. The Company agrees to indemnify, save and hold harmless the Agent, its affiliates, officers, directors, shareholders,
managers, members, employees and agents, and each person, if any, who controls the Agent within the meaning of the Securities
Act or the Exchange Act from and against any and all loss, claim, damage, liability or expense whatsoever (or actions in respect
thereof), as incurred, to which the Agent or such affiliate, officer, director, shareholder, manager, member, employee, agent
or controlling person may become subject, under the Securities Act, the Exchange Act, other federal or state statutory law or
regulation, or the laws or regulations of foreign jurisdictions where Shares have been offered or sold or at common law or otherwise
(including in settlement of any litigation), insofar as such loss, claim, damage, liability or expense (or actions in respect
thereof as contemplated below) arises out of or is (i) based upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, or any amendment thereto, including any information deemed to be a part thereof
pursuant to Rule 430B under the Securities Act, 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 (ii) based upon any untrue statement
or alleged untrue statement of a material fact contained in any Free Writing Prospectus that the Company has used, referred to
or filed, or is required to file, pursuant to Rule 433(d) of the Securities Act 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; or (iii) based upon or otherwise related to or arising
out of or in connection with the Agent’s participation, services or performance (whether occurring before, at or after the
date hereof) under this Agreement or the sale of Shares or the offering contemplated hereby, provided that the Company shall not
be liable under this clause (iii) to the extent that a court of competent jurisdiction shall have determined by a final judgment
that such loss, claim, damage, liability or action resulted directly from any act or failure to act undertaken or omitted to be
taken by the Agent’s gross negligence or willful misconduct (other than an action or failure to act undertaken at the request
or with the consent of the Company), and to reimburse the Agent and each such officer, employee and controlling person for any
and all expenses whatsoever (including the fees and disbursements of counsel chosen by the Agent) as such expenses are reasonably
incurred by the Agent or such affiliate, officer, director, shareholder, manager, member, employee, agent or controlling person
in connection with investigating, preparing, defending, settling, compromising or paying any such loss, claim, damage, liability,
expense or action; provided, however, that the foregoing indemnity agreement shall not apply to any loss, claim, damage, liability
or expense to the extent, but only to the extent, arising out of or based upon any untrue statement or alleged untrue statement
or omission or alleged omission made in reliance upon and in conformity with written information furnished to the Company by the
Agent expressly for use in the Registration Statement, any such Free Writing Prospectus or the Prospectus (or any amendment or
supplement thereto), it being understood and agreed that the only such information furnished by the Agent to the Company consists
of the information described in subsection (b) below. The indemnity agreement set forth in this ‎Section 6(a) shall
be in addition to any liabilities that the Company may otherwise have.


  






    	 	29	 



     


    

 


(b)       Indemnification
of the Company, its Directors and Officers. The Agent agrees to indemnify and hold harmless the Company,
each of its directors, each of its officers who signed the Registration Statement and each person, if any, who controls the Company
within the meaning of the Securities Act or the Exchange Act against any loss, claim, damage, liability or expense, as incurred,
to which the Company or any such director, officer or controlling person may become subject, under the Securities Act, the Exchange
Act, or other federal or state statutory law or regulation, or the laws or regulations of foreign jurisdictions where Shares have
been offered or sold or at common law or otherwise (including in settlement of any litigation), arises out of or is based upon
(i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendment
thereto, including any information deemed to be a part thereof pursuant to Rule 430B under the Securities Act, 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 (ii) any untrue statement or alleged untrue statement of a material fact contained in any Free Writing Prospectus
that the Company has used, referred to or filed, or is required to file, pursuant to Rule 433(d) of the Securities Act 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; but, for each of (i)
and (ii) above, only to the extent arising out of or based upon any untrue statement or alleged untrue statement or omission or
alleged omission made in reliance upon and in conformity with written information furnished to the Company by the Agent expressly
for use in the Registration Statement, any such Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto),
it being understood and agreed that the only such information furnished by the Agent to the Company consists of the information
set forth in the first sentence of the ninth paragraph under the caption “Plan of Distribution” in the Prospectus,
and to reimburse the Company and each such director, officer and controlling person for any and all expenses (including the fees
and disbursements of one counsel chosen by the Company) as such expenses are reasonably incurred by the Company or such officer,
director or controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim,
damage, liability, expense or action. The indemnity agreement set forth in this Section 6(b) shall be in addition to any
liabilities that the Agent or the Company may otherwise have.


 


(c)       Notifications
and Other Indemnification Procedures. Promptly after receipt by an indemnified party under this ‎Section 6 of notice
of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against an indemnifying
party under this ‎Section 6, notify the indemnifying party in writing of the commencement thereof, but the omission
so to notify the indemnifying party will not relieve it from any liability which it may have to any indemnified party for contribution
or otherwise than under the indemnity agreement contained in this ‎Section 6 or to the extent it is not prejudiced
as a proximate result of such failure. In case any such action is brought against any indemnified party and such indemnified party
seeks or intends to seek indemnity from an indemnifying party, the indemnifying party will be entitled to participate in, and,
to the extent that it shall elect, jointly with all other indemnifying parties similarly notified, by written notice delivered
to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof
with counsel reasonably satisfactory to such indemnified party; provided, however, if the defendants in any such action include
both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that a conflict
may arise between the positions of the indemnifying party and the indemnified party in conducting the defense of any such action
or that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to
those available to the indemnifying party, the indemnified party or parties shall have the right to select separate counsel to
assume such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties.
Upon receipt of notice from the indemnifying party to such indemnified party of such indemnifying party’s election so to
assume the defense of such action and approval by the indemnified party of counsel (not to be unreasonable withheld, delayed or
conditional), the indemnifying party will not be liable to such indemnified party under this ‎Section 6 for any legal
or other expenses subsequently incurred by such indemnified party in connection with the defense thereof unless (i) the indemnified
party shall have employed separate counsel in accordance with the proviso to the preceding sentence (it being understood, however,
that the indemnifying party shall not be liable for the fees and expenses of more than one separate counsel (together with local
counsel), representing the indemnified parties who are parties to such action), which counsel (together with any local counsel)
for the indemnified parties shall be selected by the indemnified party (in the case of counsel for the indemnified parties referred
to in ‎Section 6(a) and Section 6(b) above), (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of commencement
of the action or (iii) the indemnifying party has authorized in writing the employment of counsel for the indemnified party at
the expense of the indemnifying party, in each of which cases the fees and expenses of counsel shall be at the expense of the
indemnifying party and shall be paid as they are incurred.


 






    	 	30	 



     


    

 


(d)       Settlements.
The indemnifying party under this ‎Section 6 shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party
agrees to indemnify the indemnified party against any loss, claim, damage, liability or expense by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party
to reimburse the indemnified party for fees and expenses of counsel as contemplated by ‎Section 6(c) hereof, the indemnifying
party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request; and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement.
No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement, compromise or
consent to the entry of judgment in any pending or threatened action, suit or proceeding in respect of which any indemnified party
is or could have been a party and indemnity was or could have been sought hereunder by such indemnified party, unless such settlement,
compromise or consent includes an unconditional release of such indemnified party from all liability on claims that are the subject
matter of such action, suit or proceeding.


 


(e)       Contribution.
If the indemnification provided for in this ‎Section 6 is for any reason held to be unavailable to or otherwise insufficient
to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities or expenses referred to therein,
then each indemnifying party shall contribute to the aggregate amount paid or payable by such indemnified party, as incurred,
as a result of any losses, claims, damages, liabilities or expenses referred to therein (i) in such proportion as is appropriate
to reflect the relative benefits received by the Company, on the one hand, and the Agent, on the other hand, from the offering
of the Shares pursuant to this Agreement; or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company, on the one hand, and the Agent, on the other hand, in connection with the statements
or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable
considerations. The relative benefits received by the Company, on the one hand, and the Agent, on the other hand, in connection
with the offering of the Shares pursuant to this Agreement shall be deemed to be in the same respective proportions as the total
gross proceeds from the offering of the Shares (before deducting expenses) received by the Company bear to the total commissions
received by the Agent. The relative fault of the Company, on the one hand, and the Agent, on the other hand, shall be determined
by reference to, among other things, whether any such 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, on the one hand, or the Agent, on the other
hand, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement
or omission.


 






    	 	31	 



     


    

 


The
amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall
be deemed to include, subject to the limitations set forth in ‎Section 6(c), any legal or other fees or expenses
reasonably incurred by such party in connection with investigating or defending any action or claim. The provisions set forth
in ‎Section 6(c) with respect to notice of commencement of any action shall apply if a claim for contribution is to
be made under this ‎Section 6(e); provided, however, that no additional notice shall be required with respect
to any action for which notice has been given under ‎Section 6(c) for purposes of indemnification.


 


The
Company and the Agent agree that it would not be just and equitable if contribution pursuant to this ‎Section 6(e)
were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations
referred to in this ‎Section 6(e).


 


Notwithstanding
the provisions of this ‎Section 6(e), the Agent shall not be required to contribute any amount in excess of
the Selling Commission received by the Agent in connection with the offering contemplated hereby. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of this ‎Section 6(e), each officer and
employee of the Agent and each person, if any, who controls the Agent within the meaning of the Securities Act or the Exchange
Act shall have the same rights to contribution as the Agent, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the Company within the meaning of the Securities Act
and the Exchange Act shall have the same rights to contribution as the Company.


 


Section 7. TERMINATION & SURVIVAL


 


(a)       Term.
Subject to the provisions of this ‎Section 7, the term of this Agreement shall continue from the date of this Agreement
until the end of the Agency Period, unless earlier terminated by the parties to this Agreement pursuant to this ‎Section
7.


 






    	 	32	 



     


    

 


(b)       Termination;
Survival Following Termination.


 


		(i)	Either
                                         party may terminate this Agreement prior to the end of the Agency Period, by giving written
                                         notice as required by this Agreement, upon ten (10) Trading Days’ notice to the
                                         other party; provided that, (A) if the Company terminates this Agreement after the Agent
                                         confirms to the Company any sale of Shares, the Company shall remain obligated to comply
                                         with ‎Section 3(b)(v) with respect to such Shares and
                                         (B) ‎Section 2, ‎Section 3(d), Section 6, ‎Section
                                         7 and ‎Section 8 shall survive termination of this Agreement. If termination
                                         shall occur prior to the Settlement Date for any sale of Shares, such sale shall nevertheless
                                         settle in accordance with the terms of this Agreement.



 


		(ii)	In
addition to the survival provision of ‎Section 7(b)(i), the respective indemnities, agreements, representations,
warranties and other statements of the Company, of its officers and of the Agent set forth in or made pursuant to this Agreement
will remain in full force and effect, regardless of any investigation made by or on behalf of the Agent or the Company or any
of its or their partners, officers or directors or any controlling person, as the case may be, and, anything herein to the contrary
notwithstanding, will survive delivery of and payment for the Shares sold hereunder and any termination of this Agreement.



 


Section 8. MISCELLANEOUS


 


(a)       Press
Releases and Disclosure. The Company may issue a press release describing the material terms of the transactions contemplated
hereby as soon as practicable following the date of this Agreement, and may file with the Commission a Current Report on Form 8-K,
with this Agreement attached as an exhibit thereto, describing the material terms of the transactions contemplated hereby, and
the Company shall consult with the Agent prior to making such disclosures, and the parties hereto shall use all commercially reasonable
efforts, acting in good faith, to agree upon a text for such disclosures that is reasonably satisfactory to all parties hereto.
No party hereto shall issue thereafter any press release or like public statement (including, without limitation, any disclosure
required in reports filed with the Commission pursuant to the Exchange Act) related to this Agreement or any of the transactions
contemplated hereby without the prior written approval of the other party hereto, except as may be necessary or appropriate in
the reasonable opinion of the party seeking to make disclosure to comply with the requirements of applicable law or stock exchange
rules. If any such press release or like public statement is so required, the party making such disclosure shall consult with
the other party prior to making such disclosure, and the parties shall use all commercially reasonable efforts, acting in good
faith, to agree upon a text for such disclosure that is reasonably satisfactory to all parties hereto.


 


(b)       No
Advisory or Fiduciary Relationship. The Company acknowledges and agrees that (i) the transactions contemplated by this
Agreement, including the determination of any fees, are arm’s-length commercial transactions between the Company and the
Agent, (ii) when acting as a principal under this Agreement, the Agent is and has been acting solely as a principal is not the
agent or fiduciary of the Company, or its stockholders, creditors, employees or any other party, (iii) the Agent has not assumed
nor will assume an advisory or fiduciary responsibility in favor of the Company with respect to the transactions contemplated
hereby or the process leading thereto (irrespective of whether the Agent has advised or is currently advising the Company on other
matters) and the Agent does not have any obligation to the Company with respect to the transactions contemplated hereby except
the obligations expressly set forth in this Agreement, (iv) the Agent and its affiliates may be engaged in a broad range of transactions
that involve interests that differ from those of the Company, and (v) the Agent has not provided any legal, accounting, regulatory
or tax advice with respect to the transactions contemplated hereby and the Company has consulted its own legal, accounting, regulatory
and tax advisors to the extent it deemed appropriate.


 






    	 	33	 



     


    

 


(c)       Research
Analyst Independence. The Company acknowledges that the Agent’s research analysts and research departments are required
to and should be independent from their respective investment banking divisions and are subject to certain regulations and internal
policies, and as such the Agent’s research analysts may hold views and make statements or investment recommendations and/or
publish research reports with respect to the Company or the offering that differ from the views of their respective investment
banking divisions. The Company understands that the Agent is a full service securities firm and as such from time to time, subject
to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short
positions in debt or equity securities of the companies that may be the subject of the transactions contemplated by this Agreement.


 


(d)       Notices.
All communications hereunder shall be in writing and shall be mailed, hand delivered or telecopied and confirmed to the parties
hereto as follows:


 


If
to the Agent:




Jefferies LLC

520 Madison Avenue

New York, NY 10022

Facsimile:

Attention: General Counsel


 


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




Cooley LLP


55 Hudson Yards


New York, NY 10001


Attention: Daniel I. Goldberg, Esq.


Facsimile: (212) 479-6275


 


If to the Company:





Hertz
Global Holding, Inc.

8501 Williams Road

Estero, FL 33928

Attention: M. David Galainena


 






    	 	34	 



     


    

 


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




White & Case LLP

1221 Avenue of the America

New York, NY 10020-1095

Attention: Gregory Pryor and Colin J. Diamond


 


Any
party hereto may change the address for receipt of communications by giving written notice to the others in accordance with this
‎Section 8(d).


 


(e)       Successors. This
Agreement will inure to the benefit of and be binding upon the parties hereto, and to the benefit of the employees, officers
and directors and controlling persons referred to in ‎Section 6, and in each case their respective successors, and
no other person will have any right or obligation hereunder. Any successor of the Company shall assume the Company's
obligations under this Agreement. The term “successors” shall not include any purchaser of the Shares as such
from the Agent merely by reason of such purchase.


 


(f)       Partial
Unenforceability. The invalidity or unenforceability of any Article, Section, paragraph or provision of this Agreement
shall not affect the validity or enforceability of any other Article, Section, paragraph or provision hereof. If any Article,
Section, paragraph or provision of this Agreement is for any reason determined to be invalid or unenforceable, there shall be
deemed to be made such minor changes (and only such minor changes) as are necessary to make it valid and enforceable.


 


(g)       Governing
Law Provisions. This Agreement shall be governed by and construed in accordance with the internal laws of the State
of New York applicable to agreements made and to be performed in such state. Any legal suit, action or proceeding arising out
of or based upon this Agreement or the transactions contemplated hereby may be instituted in the federal courts of the United
States of America located in the Borough of Manhattan in the City of New York or the courts of the State of New York in each case
located in the Borough of Manhattan in the City of New York (collectively, the “Specified Courts”), and each
party irrevocably submits to the exclusive jurisdiction (except for proceedings instituted in regard to the enforcement of a judgment
of any such court, as to which such jurisdiction is non-exclusive) of such courts in any such suit, action or proceeding. Service
of any process, summons, notice or document by mail to such party’s address set forth above shall be effective service of
process for any suit, action or other proceeding brought in any such court. The parties irrevocably and unconditionally waive
any objection to the laying of venue of any suit, action or other proceeding in the Specified Courts and irrevocably and unconditionally
waive and agree not to plead or claim in any such court that any such suit, action or other proceeding brought in any such court
has been brought in an inconvenient forum.


 






    	 	35	 



     


    

 


(h)       General
Provisions. This Agreement constitutes the entire agreement of the parties to this Agreement and supersedes all prior
written or oral and all contemporaneous oral agreements, understandings and negotiations with respect to the subject matter hereof.
This Agreement may be executed in two or more counterparts, each one of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument, and may be delivered by facsimile transmission or by electronic
delivery of a portable document format (PDF) file. This Agreement may not be amended or modified unless in writing by all of the
parties hereto, and no condition herein (express or implied) may be waived unless waived in writing by each party whom the condition
is meant to benefit. The Article and Section headings herein are for the convenience of the parties only and shall not affect
the construction or interpretation of this Agreement.


 


 


 


[Signature Page Immediately Follows]






    	 	36	 



     


    

 


If the foregoing is
in accordance with your understanding of our agreement, kindly sign and return to the Company the enclosed copies hereof, whereupon
this instrument, along with all counterparts hereof, shall become a binding agreement in accordance with its terms


 


 


	 	Very truly yours,
	 	 
	 	HERTZ GLOBAL HOLDINGS, INC.
	 	 
	 	By: 	/s/ Jamere Jackson
	 	 	Name:Jamere Jackson
Title: Executive Vice President and Chief Financial Officer



 


The foregoing Agreement is hereby confirmed
and accepted by the Agent in New York, New York as of the date first above written.


 


 


	JEFFERIES LLC
	 
	By: 	/s/ Michael A. Bauer
	 	Name:Michael A. Bauer
Title: Managing Director





 


 






    	 	[Signature Page – Sale Agreement]
	 



     


    

 


EXHIBIT A


 


ISSUANCE NOTICE


 


[Date]


 


Jefferies LLC


520 Madison Avenue


New York, New York 10022


 


Attn: [__________]


 


Reference is made to the Open Market Sale
Agreement between Hertz Global Holdings, Inc. (the “Company”) and Jefferies LLC (the “Agent”)
dated as of June [●], 2020. The Company confirms that all conditions to the delivery of this Issuance Notice are satisfied
as of the date hereof.


 


Date
of Delivery of Issuance Notice (determined pursuant to ‎Section 3(b)(i)): _______________________


 


Issuance Amount (equal to the total Sales Price for such Shares):


 





	$	 	 
	 	 	 
	Number of days in selling period:	 	 
	 	 	 
	First date of selling period:	 	 
	 	 	 
	Last date of selling period:	 	 
	 	 	 
	Settlement Date(s) if other than standard T+2 settlement:	 	 



 


  


Floor Price Limitation (in no event less
than $1.00 without the prior written consent of the Agent, which consent may be withheld in the Agent’s sole discretion):
$ ____ per share


 


	Comments:	 	 



 


 


	 	 
	 	By: 	 
	 	 	Name:
Title: 



 






    	 	A-1	 



     


    

 


Schedule A


 


Notice Parties


 


The Company


 


M. David Galainena


Jamere Jackson


Vincent J. Intrieri


SungHwan Cho


Henry R. Keizer


Kevin M. Sheehan





 


The Agent


 


Andrew Whittaker


Michael Bauer


Donald Lynaugh


Michael Magarro