Exhibit 10.1


 


OPEN
MARKET SALE AGREEMENTSM


 


June 16, 2020


 


JEFFERIES LLC

520 Madison Avenue


New York, New York 10022


 


Ladies and Gentlemen:


 


FuelCell
Energy, 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 $0.0001 per share (the “Common Shares”), having an aggregate
offering price of up to $75,000,000 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.


 


 





 






		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 Nasdaq Global Market 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 three percent (3%) of the gross proceeds of Shares sold pursuant to this Agreement, or as otherwise 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 Company shall deliver to the Agent the amount of Shares sold on such
Trading Day and the Agent shall deliver to the Company the Issuance Price received on such sales.


 


“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.


 






    	 	 2	 



     


    

 


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 (defined below) with respect to which the Company is obligated to
deliver a certificate pursuant to Section 4(o) for which no waiver is applicable 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 either now or in the future 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. 333-226792) 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 base 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”) (except that, upon the Agent’s request, the Company shall provide a printed
copy of the Registration Statement and of any amendment or supplement thereto with signatures in PDF format).


 






    	 	 3	 



     


    

 


At
the time the Registration Statement was or will be originally 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 with respect thereto. 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 are pending or, to the knowledge of the Company, are contemplated or threatened by the
Commission.


 


The
Prospectus when filed complied 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 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.


 






    	 	 4	 



     


    

 


(c)              
Ineligible Issuer Status. The Company is not 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 you before first use, the Company has not prepared, used or referred to, and will not, without your 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 statements therein, in 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 to be reliable and accurate.


 


(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,
and required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is communicated to the
Company’s principal executive officer and its principal financial officer by others within those entities, as appropriate
to allow timely decisions regarding required disclosure; (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) except as otherwise disclosed in the Registration Statement
and the Prospectus, are effective in all material respects to perform the functions for which they were established. Except as
otherwise disclosed in the Registration Statement and the Prospectus, 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 (other than as may be otherwise disclosed in the Registration
Statement or the Prospectus) 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.


 






    	 	 5	 



     


    

 


(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, since the date of the most recent financial statements of the Company included or incorporated by reference
in the Registration Statement and the Prospectus: (i) there has been no material adverse change, or any development that could
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, whether or not covered by insurance, that
is 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.


 






    	 	 6	 



     


    

 


(l)                
Independent Accountants. KPMG LLP, who has certified certain financial statements (which
term as used in this Agreement includes the related notes thereto) of the Company and its subsidiaries, is an independent
registered public accounting firm with respect to the Company and its subsidiaries within the applicable rules and regulations
adopted by the Commission and the Public Company Accounting Oversight Board (United States) and as required by the Securities Act.


 


(m)              
Financial Statements. The financial statements incorporated by reference in the Registration
Statement and the Prospectus, together with the related notes and schedules, present fairly, in all material respects, the consolidated
financial position of the Company and its subsidiaries as of the dates indicated and the results of their operations, changes in
stockholders’ equity and cash flows for the periods specified. Such financial statements and supporting schedules have been
prepared in conformity with generally accepted accounting principles in the United States (“GAAP”) as in effect
as of the time of filing applied on a consistent basis throughout the periods involved, except for (i) any adjustments as may be
expressly stated in the related notes thereto and (ii) in the case of unaudited statements, to the extent they may exclude footnotes
or may be condensed or summary statements. 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 caption “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 Public Company Accounting Oversight Board (“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.


 


(n)              
Company’s Accounting System. The Company, for itself and its consolidated subsidiaries, makes and keeps accurate
books and records and maintains 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 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.


 






    	 	 7	 



     


    

 


(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 Connecticut 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 be so qualified
or in good standing, individually or in the aggregate, would not result in a Material Adverse Change.


 


(p)              
Subsidiaries. Each “significant subsidiary” (as such term is defined in
Rule 1-02 of Regulation S-X) of the Company (each a “Subsidiary” and, collectively, the “Subsidiaries”)
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
be so qualified or in good standing would not result in a Material Adverse Change. 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, and, except as otherwise disclosed
in the Registration Statement and the Prospectus, is 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 (a) the entities listed in Exhibit 21 to the Company’s Annual Report on Form 10-K for the fiscal year ended
October 31, 2019 and (b) certain other subsidiaries not listed on such Exhibit 21 which, considered in the aggregate as a single
entity, do not constitute a “significant subsidiary” as defined in Rule 1-02 of Regulation S-X.


 


(q)               
Capitalization and Other Capital Stock Matters. The authorized, issued and outstanding
capital stock of the Company is as set forth in the Prospectus (other than (i) subsequent grants of equity awards under the stock
option or equity incentive plans described in the Registration Statement and the Prospectus, (ii) subsequent changes in the number
of outstanding Common Shares due to the issuance of Common Shares upon the exercise or conversion of securities exercisable for,
or convertible into, Common Shares described in the Registration Statement and the Prospectus, (iii) as a result of the issuance
of Shares hereunder, (v) as a result of the issuance of Common Shares under the employee stock purchase plan described in the Registration
Statement and the Prospectus, or (vi) any repurchases of capital stock of the Company). The Common Shares (including the Shares)
conform in all material respects to the description thereof contained in the Prospectus. Except with respect to the Company’s
 “at the market” program in place from August 2005 to April 2017, 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 in all material respects the information required to be shown with respect to such plans, arrangements,
options and rights.


 






    	 	 8	 



     


    

 


(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 the Company has taken no action intended to result in, 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 written notification that the Commission or the Principal Market is contemplating terminating
such registration or listing. To the Company’s knowledge, it is in compliance, in all material respects, with all applicable
listing requirements of the Principal Market.


 


(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 that, individually or in the aggregate, would not be reasonably
expected 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 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 in the cases of clauses (ii) and (iii) above, where such conflicts, breaches,
Defaults, violations, or other occurrences, individually or in the aggregate, would not be reasonably expected to result in a Material
Adverse Change. 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 (i) as have
been obtained or made by the Company and are in full force and effect under the Securities Act, (ii) such filings as have been
made (and as of the date of this Agreement are still under review) under, or are not yet required to be made under, the rules and
regulations of The Nasdaq Stock Market, and (iii) such as may be required under applicable state securities or blue sky laws or
by 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, but excluding the requirement to prepay the Secondary Facility
Loan Commitment (as defined in the Prospectus) between the Company and Orion Energy Partners Investment Agent, LLC and its affiliated
lenders, as described in the Registration Statement and the Prospectus.


 






    	 	 9	 



     


    

 


(t)                
No Material Actions or Proceedings. Except as otherwise disclosed in the Prospectus, there is no (i) 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 adversely affecting the Company or any of its subsidiaries, or (ii) 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, which exists or, to the knowledge of the Company, is threatened or imminent, in each case which,
individually or in the aggregate, would reasonably be expected to result in a Material Adverse Change.


 


(u)               
Intellectual Property Rights. Except as otherwise disclosed in the Registration Statement or the Prospectus, the
Company and its subsidiaries own, or have obtained valid and enforceable licenses for, the inventions, patent applications, patents,
trademarks, trade names, service names, copyrights, trade secrets and other intellectual property described in the Registration
Statement and the Prospectus as being owned or licensed by them or which are necessary for the conduct of their respective businesses
as currently conducted or as currently proposed to be conducted (collectively, “Intellectual Property”), except
to the extent the failure to own or possess adequate rights to such Intellectual Property, individually or in the aggregate, would
not reasonably be expected to result in a Material Adverse Change. Neither the Company nor any of its subsidiaries has received
any written notice that the conduct of their respective businesses infringes, misappropriates or otherwise conflicts in any material
respect with any such rights of others. The Intellectual Property of the Company has not been adjudged by a court of competent
jurisdiction to be invalid or unenforceable, in whole or in part, and the Company is unaware of any facts which would form a reasonable
basis for any such adjudication. To the Company's knowledge: (i) there are no third parties who have rights to any Intellectual
Property, except for customary reversionary rights of third-party licensors with respect to Intellectual Property that is disclosed
in the Registration Statement and the Prospectus as licensed to the Company or one or more of its subsidiaries, and (ii) except
as set forth in the Registration Statement and the Prospectus, there is no infringement by third parties of any Intellectual Property.
There is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others: (A) challenging
the Company’s rights in or to any Intellectual Property, and the Company is unaware of any
facts which would form a reasonable basis for any such action, suit, proceeding or claim; (B) challenging the validity,
enforceability or scope of any Intellectual Property, and the Company is unaware of any facts which would form a reasonable basis
for any such action, suit, proceeding or claim; or (C) asserting that the Company or any of its subsidiaries infringes or otherwise
violates, or would, upon the commercialization of any product or service described in the Registration Statement or the Prospectus
as under development, infringe or violate, any patent, trademark, trade name, service name, copyright, trade secret or other proprietary
rights of others, and the Company is unaware of any facts which would form a reasonable basis for any such action, suit, proceeding
or claim, except, in each case, where such action, suit, proceeding or claim would not reasonably be expected, individually or
in the aggregate, to result in a Material Adverse Change. The Company and its subsidiaries have complied with the terms of each
agreement pursuant to which Intellectual Property has been licensed to the Company or any subsidiary, and all such agreements are
in full force and effect, except where the failure to comply would not reasonably be expected, individually or in the aggregate,
to result in a Material Adverse Change. To the Company’s knowledge, there are no material defects in any of the patents or
patent applications included in the Intellectual Property. The Company and its subsidiaries have taken all reasonable steps to
protect, maintain and safeguard their Intellectual Property, including the execution of appropriate nondisclosure, confidentiality
and invention assignment agreements with their employees, and, to the Company’s knowledge, no employee of the Company is
in or has been in violation of any term of any employment contract, patent disclosure agreement, invention assignment agreement,
non-competition agreement, non-solicitation agreement, nondisclosure agreement, or any restrictive covenant to or with a former
employer where the basis of such violation relates to such employee’s employment with the Company. The product candidates
described in the Registration Statement and the Prospectus as under development by the Company or any subsidiary fall within the
scope of the claims of one or more patents owned by, or exclusively licensed to, the Company or any subsidiary.


 






    	 	 10	 



     


    

 


(v)              
All Necessary Permits, etc. Except as otherwise disclosed in the Prospectus, (i) 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”), and (ii) neither the Company nor any of its subsidiaries is in violation of, or in default under,
any of the Permits or has received notice of proceedings relating to the revocation or modification of, or non-compliance with,
any such certificate, authorization or permit, except where the failure to have such certificates, authorizations or permits or
such violation, default, revocation, modification or non-compliance, individually or in the aggregate, would not reasonably be
expected to result in a Material Adverse Change.


 


(w)            
Title to Properties. Except as otherwise disclosed in the Prospectus, the Company and its subsidiaries have good
and marketable title to all of the real and personal property and other assets reflected as owned in the most recent financial
statements of the Company incorporated by reference in the Registration Statement and the Prospectus (other than property and/or
assets held by the Company pursuant to sale-leaseback transactions), in each case free and clear of any security interests, mortgages,
liens, encumbrances, equities, adverse claims and other defects, except those that (i) do not materially interfere with the use
made and proposed to be made of such property and assets by the Company and its subsidiaries or (ii) would not, either individually
or in the aggregate, reasonably be expected to result in a Material Adverse Change. The real property, improvements, equipment
and personal property held under lease by the Company or any of its subsidiaries 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 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, except where such failure would not, individually or in the aggregate, reasonably
be expected to result in a Material Adverse Change. 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.


 






    	 	 11	 



     


    

 


(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 Prospectus,
required to register as an “investment company” under the Investment Company Act of 1940, as amended (the “Investment
Company Act”).


 


(z)               
Insurance. The Company and its subsidiaries carry, or are covered by, insurance in such amounts and covering such
risks as the Company and its subsidiaries reasonably believe are adequate for the conduct of their business, provided by
recognized, financially sound and reputable institutions. Neither the Company nor any of its subsidiaries has received written
notice that it 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 to result in a Material Adverse Change.


 


(aa)           
No Price Stabilization or Manipulation; Compliance with Regulation M. Neither the Company nor any of its subsidiaries
has taken, directly or indirectly, any action designed to or that might 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, or has taken any 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 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 or except as would not, either individually
or in the aggregate, reasonably be expected 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, in all material respects, 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) the Company has not received written notice of any pending or potential 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 or as would not, either individually or in the
aggregate, reasonably be expected to result in a Material Adverse Change, 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) (each a “Company Benefit Plan”) are in compliance in all material respects with ERISA. “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 Company Benefit Plan that is subject
to Title IV of ERISA. No Company Benefit Plan that is subject to Title IV of ERISA, if such plan were terminated, would have any
 “amount of unfunded benefit liabilities” (as defined under ERISA) that would reasonable be expected to result in a
Material Adverse Change. Except as would not, either individually or in the aggregate, reasonably be expected to result in a Material
Adverse Change, neither the Company, its subsidiaries nor any of their ERISA Affiliates has incurred or reasonably expects to incur
any liability with respect to any Company Benefit Plan under (i) Title IV of ERISA with respect to termination of, or
withdrawal from, such plan or (ii) Sections 412, 4971, or 4975 of the Code. Each Company Benefit Plan 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.


 


(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.


 






    	 	 13	 



     


    

 


(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, except where failure to be so in compliance would not, individually or in the aggregate, reasonably be expected
to result in a Material Adverse Change.


 


(jj)             
Dividend Restrictions. Except as disclosed in the Prospectus, and except with respect to subsidiaries subject to
customary project finance dividend restrictions and foreign subsidiaries, 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, or employee of the Company or any of its subsidiaries or any 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”), 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 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 knowledge of the Company, threatened.


 






    	 	 14	 



     


    

 


(mm)     
Sanctions. Neither the Company nor any of its subsidiaries, nor, to the knowledge of the Company, any of its directors,
officers, employees, agents, affiliates or other persons 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 (i) 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 (ii)
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 (including
Cuba, Iran, North Korea, Sudan, Syria and the Crimea Region of the Ukraine).


 


(nn)          
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.


 


(oo)          
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.


 


(pp)          
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, and, to the Company’s knowledge, are free and clear of all material bugs, errors,
defects, Trojan horses, time bombs, malware and other corruptants, except as would not reasonably be expected, individually or
in the aggregate, to result in a Material Adverse Change. 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, except where the failure to so implement and maintain
would not reasonably be expected to result in a Material Adverse Change. “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 (as defined below); (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. To the Company’s knowledge,
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, except as would not, individually
or in the aggregate, reasonably be expected to result in a Material Adverse Change.


 



    	 	 15	 



     


    

 





(qq)           
Compliance with Data Privacy Laws. Except as would not, individually or in the aggregate, reasonably be expected
to result a Material Adverse Change, (i) the Company and its subsidiaries are in material compliance with all applicable state
and federal data privacy and security laws and regulations, including without limitation HIPAA, and (ii) 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 Privacy 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
written 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.


 


(rr)             
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.


 


Any certificate signed
by any officer 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.


 


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.


 






    	 	 16	 



     


    

 


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 such 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 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 on which 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 privately negotiated transactions with the consent of the Company;
(B) as block transactions; or (C) 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 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 clauses (A) and (B) above) the
method of placement of any Shares by the Agent shall be at the Agent’s discretion.


 


(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.


 






    	 	 17	 



     


    

 


(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.


 


(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.


 






    	 	 18	 



     


    

 


(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 with the prior approval of the
Company, and the cost of any aircraft chartered in connection with the road show with the prior approval of the Company; 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 (A) $50,000 in connection with the first Issuance Notice and (B)
$15,000 in connection with each Triggering Event Date (as defined below) on which the Company is required to provide a certificate
pursuant to Section 5(o).


 






    	 	 19	 



     


    

 


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:


 


(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,
any amendment or supplement to the Prospectus, or 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 commercially reasonable efforts to obtain the lifting of such order as soon as reasonably
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 existing 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 Section 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 existing when the Prospectus is delivered
to a purchaser, not 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 Section 4(d) and Section 4(f). Notwithstanding the foregoing, the
Company shall 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 provided, however, that
if the Company subsequently chooses to deliver an Issuance Notice to the Agent, the Company agrees to file such amendment or supplement
prior to the delivery of such Issuance Notice.


 






    	 	 20	 



     


    

 


(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, such consent not to be unreasonably withheld, conditioned or delayed, 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, conditioned or delayed. 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, conditioned
or delayed.


 






    	 	 21	 



     


    

 


(g)              
Filing of Agent Free Writing Prospectuses. The Company shall not to 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 (it being acknowledged that the Company may delay the filing of any amendment or supplement, if, in the reasonable
judgment of the Company, it is in the best interest of the Company); 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 commercially reasonable
efforts to obtain the withdrawal thereof as soon as reasonably practicable.


 






    	 	 22	 



     


    

 


(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 which shall satisfy
the provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Act, provided
that the Company will be deemed to have furnished such statements to its security holders and the Agent to the extent they are
filed on EDGAR or any successor system.


 


(k)              
Listing; Reservation of Shares. (a) The Company will maintain the listing of the Shares, on the Principal Market;
and (b) 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;


 






    	 	 23	 



     


    

 


(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


 


(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) 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, the Company shall cause Foley & Lardner LLP, counsel to the Company, to
furnish to the Agent a negative assurances letter and a written legal opinion, 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).


 






    	 	 24	 



     


    

 


(q)              
Comfort Letter. 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 KPMG LLP, the independent registered public accounting
firm who has 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 letter
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 hereunder per calendar quarter.


 


(r)             

Secretary’s Certificate. 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, 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.


 






    	 	 25	 



     


    

 


(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.


 


(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, 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, provided that if the sale of Shares pursuant to an Issuance Notice is suspended
or an Issuance Notice is suspended or terminated, then such period will end on the third Trading Day immediately following the
Settlement Date with respect to Shares sold pursuant such Issuance Notice prior to such suspension or termination; 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 (including restricted stock), options to purchase Common Shares, restricted
stock units, phantom equity awards 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 the rules of the Nasdaq Stock Market or other compensation plan of the Company or its
subsidiaries, (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, (iii) modification of any outstanding options, warrants or other rights
to purchase or acquire Common Shares, (iv) issuance of Common Shares issuable upon the exercise of participation rights disclosed
in the Prospectus (including any documents incorporated by reference therein), (v) issuance or sale of Common Shares, or securities
convertible into or exercisable for Common Shares, offered and sold in a privately negotiated transaction to vendors, customers,
strategic partners or potential strategic partners or other investors conducted in a manner so as not to be integrated with the
offering of Common Shares hereby, provided that the aggregate number of Common Shares issued under this subsection (v) pursuant
to any such arrangement shall not exceed five percent (5%) of the number of Common Shares outstanding immediately prior to giving
effect to such issuance; and (vi) issuance or sale of Common Shares in connection with any acquisition, strategic investment or
other similar transaction (including any joint venture, strategic alliance or partnership) provided that the aggregate number of
Common Shares issued under this subsection (vi) pursuant to any such arrangement shall not exceed five percent (5%) of the number
of Common Shares outstanding immediately prior to giving effect to such issuance.


 






    	 	 26	 



     


    

 


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, in all material respects, 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.



 


		(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, and no written notice shall 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 (A) and (B) below) any of the following:
(A) 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 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 FINRA; (B) a general
banking moratorium shall have been declared by any federal or New York authorities; or (C) 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.



 






    	 	 27	 



     


    

 


(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 President and
Chief Executive Officer 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 of the date of such certificate (which certificate shall not be required if the foregoing representations
shall be set forth in the Issuance Notice).


 


(c)              
No Misstatement or Material Omission. The 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.


 


Section
6. INDEMNIFICATION AND CONTRIBUTION


 


(a)               
Indemnification of the Agent. The Company agrees to indemnify and hold harmless the Agent, its officers and employees,
and each person, if any, who controls the Agent within the meaning of the Securities Act or the Exchange Act against any loss,
claim, damage, liability or expense, as incurred, to which the Agent or such officer, employee 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 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; (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; or (iii)
any act or failure to act or any alleged act or failure to act by the Agent in connection with, or relating in any manner to, the
Common Shares or the offering contemplated hereby, and which is included as part of or referred to in any loss, claim, damage,
liability or action arising out of or based upon any matter covered by clause (i) or (ii) above, 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, expense or action resulted directly from any such acts or failures to act undertaken
or omitted to be taken by the Agent through its bad faith or willful misconduct, and to reimburse the Agent and each such officer,
employee and controlling person for any and all documented expenses (including the reasonable and documented out-of-pocket fees
and disbursements of counsel chosen by the Agent) as such expenses are reasonably incurred by the Agent or such officer, employee
or controlling person in connection with investigating, 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, expense or action 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 first sentence of the ninth paragraph under the caption “Plan of Distribution”
in the Prospectus. The indemnity agreement set forth in this Section 6(a) shall be in addition to any liabilities
that the Company may otherwise have.


 






    	 	 28	 



     


    

 


(b)              
Indemnification of the Company and 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), which 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 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 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 documented expenses (including
the reasonable and documented out-of-pocket fees and disbursements of 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.


 






    	 	 29	 



     


    

 


(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 to so 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, 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.


 


(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.


 






    	 	 30	 



     


    

 


(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.


 


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 agent
fees 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 with the meaning of the Securities Act and the Exchange Act shall have the same
rights to contribution as the Company.


 






    	 	 31	 



     


    

 


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.


 


(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 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 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, including, for the avoidance of doubt, disclosure regarding periodic sales under this Agreement as
required to be included in the Company’s periodic reports pursuant to the rules of the Exchange Act. 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.


 






    	 	 32	 



     


    

 


(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 and
is not the agent or fiduciary of the Company, or its stockholders, creditors, employees or any other party, (iii) the Agent has
not assumed and will not 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 respective 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.


 


(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: (646) 619-4437

Attention: General Counsel


 


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



 


Duane Morris LLP


1540 Broadway


New York, NY 10036


Attention: James T. Seery


Email: jtseery@duanemorris.com


 


If to the Company:






FuelCell Energy, Inc.


3 Great Pasture Road


Danbury, Connecticut 06813

Attention: Michael Bishop

Telephone: (203) 825-6049


Email:mbishop@fce.com


 


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


 


Foley & Lardner LLP


111 Huntington Avenue, Suite 2500


Boston, Massachusetts 02199-7610

Attention:Paul D. Broude

Telephone: (617) 342-4027


Email:  PBroude@foley.com





 





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).


 






    	 	 33	 



     


    

 


(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. 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 Section, paragraph or provision of this Agreement
shall not affect the validity or enforceability of any other Section, paragraph or provision hereof. If any 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 (“Related Proceedings”)
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 (a “Related Judgment”), 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.


 


(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 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]


 









    	 	 34	 



     


    




 


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,	 
	 	 	 	 	 
	 	FUELCELL ENERGY, INC.	 
	 	 	 	 	 
	 	By: 	/s/ Michael S.
    Bishop	 
	 	 	Name:  	Michael S. Bishop	 
	 	 	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 Magarro	 
	 	Name:    	Michael Magarro	 
	 	Title:  	Managing Director	   





 









    	 



     


    




 


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 FuelCell Energy, Inc. (the “Company”) and Jefferies LLC (the “Agent”) dated
as of June 16, 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: $ ____ per share


 


		Comments:	



 


 





	 	 	 	 
	 	 	 	 	 






	 	By: 	 	 
	 	 	Name: 	 	 
	 	 	Title:  	 	 



 






    	 	A-1 
	 



     


    




 


Schedule A


 





Notice Parties


 


The Company


 


Michael Bishop


 


Daniel Case


 


Jennifer Arasimowicz


 


 


The Agent


 


Mike Magarro