Exhibit 10.1


 


EXECUTION COPY


 


CADIZ, INC.


 


Common Stock

(par value $0.01 per share)


 


At Market Issuance Sales Agreement


 


March 27, 2018


 


B. Riley FBR, Inc.


299 Park Avenue, 7th Floor


New York, NY 10171


 


Ladies and Gentlemen:


 


Cadiz, Inc., a Delaware
corporation (the “Company”), confirms its agreement (this “Agreement”) with B. Riley FBR,
Inc. (the “Agent”) as follows:


 


1. Issuance
and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject
to the conditions set forth herein, it may issue and sell through the Agent, shares (the “Placement Shares”);
of the Company’s common stock, par value $0.01 per share (the “Common Stock”); provided however, that
in no event shall the Company issue or sell through the Agent such number of Placement Shares that (a) exceeds the number of shares
or dollar amount of Common Stock registered on the effective Registration Statement (as defined below) pursuant to which the offering
is being made or (b) exceeds the number of shares or dollar amount registered on the Prospectus Supplement (as defined below) (the
lesser of (a) or (b) the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties
hereto agree that compliance with the limitations set forth in this Section 1 on the number of Placement Shares issued and
sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection
with such compliance. The issuance and sale of Placement Shares through the Agent will be effected pursuant to the Registration
Statement (as defined below), although nothing in this Agreement shall be construed as requiring the Company to use the Registration
Statement to issue any Placement Shares.


 


The Company has filed,
in accordance with the provisions of the Securities Act of 1933, as amended and the rules and regulations thereunder (the “Securities
Act”), with the Securities and Exchange Commission (the “Commission”), a registration statement on
Form S-3 (File No. 333-214318), including a base prospectus, relating to certain securities including the Placement Shares to be
issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file
in accordance with the provisions of the Securities Exchange Act of 1934, as amended and the rules and regulations thereunder (the
“Exchange Act”). The Company has prepared and filed a prospectus supplement to the base prospectus included
as part of such registration statement specifically relating to the Placement Shares (the “Prospectus Supplement”).
The Company will furnish to the Agent, for use by the Agent, copies of the base prospectus included as part of such registration
statement, as supplemented by the Prospectus Supplement, relating to the Placement Shares. Except where the context otherwise requires,
such registration statement, and any post-effective amendment thereto, including all documents filed as part thereof or incorporated
by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission
pursuant to Rule 424(b) under the Securities Act or deemed to be a part of such registration statement pursuant to Rule 430B
of the Securities Act, is herein called the “Registration Statement.” Any registration statement filed by the
Company pursuant to Rule 462(b) under the Securities Act is called the “462(b) Registration Statement” and, from and
after the date and time of filing of the Rule 462(b) Registration Statement, the term “Registration Statement” shall
include the Rule 462(b) Registration Statement. The base prospectus, including all documents incorporated or deemed incorporated
therein by reference to the extent such information has not been superseded or modified in accordance with Rule 412 under the Securities
Act (as qualified by Rule 430B(g) of the Securities Act), included in the Registration Statement, as it may be supplemented by
the Prospectus Supplement, in the form in which such base prospectus and/or Prospectus Supplement have most recently been filed
by the Company with the Commission pursuant to Rule 424(b) under the Securities Act, and any Free Writing Prospectus filed by the
Company, if any, is herein called the “Prospectus.” Any reference herein to the Registration Statement, the
Prospectus or any amendment or supplement thereto shall be deemed to refer to and include the documents incorporated by reference
therein, and any reference herein to the terms “amend,” “amendment” or “supplement” with respect
to the Registration Statement or the Prospectus shall be deemed to refer to and include the filing after the execution hereof of
any document with the Commission incorporated by reference therein (the “Incorporated Documents”).


 






     


     


    

 


For purposes of this
Agreement, all references to the Registration Statement, the 462(b) Registration Statement the Prospectus or to any amendment or
supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering
Analysis and Retrieval System, or if applicable, the Interactive Data Electronic Application system when used by the Commission
(collectively, “EDGAR”).


 


2. Placements.
Each time that the Company wishes to issue and sell Placement Shares hereunder (each, a “Placement”), it will
notify the Agent by electronic mail (or other method mutually agreed to in writing by the parties) of the number of Placement Shares,
the time period during which sales are requested to be made, any limitation on the number of Placement Shares that may be sold
in any one day and any minimum price below which sales may not be made (a “Placement Notice”), the form of which
is attached hereto as Schedule 1. The Placement Notice shall originate from any of the individuals from the Company set
forth on Schedule 3 (with a copy to each of the other individuals from the Company listed on such schedule), and shall be
addressed to each of the individuals from the Agent set forth on Schedule 3, as such Schedule 3 may be amended from
time to time. The Placement Notice shall be effective immediately upon receipt by the Agent unless and until (i) the Agent declines
to accept the terms contained therein for any reason, in its sole discretion, (ii) the entire amount of the Placement Shares thereunder
has been sold, (iii) the Company suspends or terminates the Placement Notice, which suspension and termination rights may be exercised
by the Company in its sole discretion, or (iv) this Agreement has been terminated under the provisions of Section 13. The
amount of any discount, commission or other compensation to be paid by the Company to the Agent in connection with the sale of
the Placement Shares shall be calculated in accordance with the terms set forth in Schedule 2. It is expressly acknowledged
and agreed that neither the Company nor the Agent will have any obligation whatsoever with respect to a Placement or any Placement
Shares unless and until the Company delivers a Placement Notice to the Agent and the Agent does not decline such Placement Notice
pursuant to the terms set forth above, and then only upon the terms specified therein and herein. In the event of a conflict between
the terms of Sections 2 or 3 of this Agreement and the terms of a Placement Notice, the terms of the Placement Notice
will control.


 






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3. Sale
of Placement Shares by the Agent. Subject to the terms and conditions of this Agreement, for the period specified in a Placement
Notice, the Agent will use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable
state and federal laws, rules and regulations and the rules of the NASDAQ Capital Market (the “Exchange”), to
sell the Placement Shares up to the amount specified in, and otherwise in accordance with the terms of, such Placement Notice.
The Agent will provide written confirmation to the Company no later than the opening of the Trading Day (as defined below) immediately
following the Trading Day on which it has made sales of Placement Shares hereunder setting forth the number of Placement Shares
sold on such day, the compensation payable by the Company to the Agent pursuant to Section 2 with respect to such sales,
and the Net Proceeds (as defined below) payable to the Company, with an itemization of the deductions made by the Agent (as set
forth in Section 5(b)) from the gross proceeds that it receives from such sales. Subject to the terms of a Placement Notice,
the Agent may sell Placement Shares by any method permitted by law deemed to be an “at the market offering” as defined
in Rule 415 of the Securities Act. “Trading Day” means any day on which shares of Common Stock are purchased
and sold on the Exchange.


 


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


 


5. Sale
and Delivery to the Agent; Settlement.


 


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


 






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b. Settlement
of Placement Shares. Unless otherwise specified in the applicable Placement Notice, settlement for sales of Placement Shares
will occur on the second (2nd) Trading Day (or such earlier day as is industry practice for regular-way trading)
following the date on which such sales are made (each, a “Settlement Date”). The Agent shall notify the Company
of each sale of Placement Shares no later than opening day following the Trading Day that the Agent sold Placement Shares. The
amount of proceeds to be delivered to the Company on a Settlement Date against receipt of the Placement Shares sold (the “Net
Proceeds”) will be equal to the aggregate sales price received by the Agent, after deduction for (i) the Agent’s
commission, discount or other compensation for such sales payable by the Company pursuant to Section 2 hereof, and (ii)
any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales.


 


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


 


d. Limitations
on Offering Size. Under no circumstances shall the Company cause or request the offer or sale of any Placement Shares if, after
giving effect to the sale of such Placement Shares, the aggregate number of Placement Shares sold pursuant to this Agreement would
exceed the lesser of (A) together with all sales of Placement Shares under this Agreement, the Maximum Amount, (B) the amount available
for offer and sale under the currently effective Registration Statement and (C) the amount authorized from time to time to be issued
and sold under this Agreement by the Company’s board of directors, a duly authorized committee thereof or a duly authorized
executive committee, and notified to the Agent in writing. As of the date hereof, the amount available for offer and sale under
the currently effective Registration Statement is sufficient to cover the Maximum Amount, and that any information and material
provided by the Company to the Agent supporting the calculation of such available amount under the Registration Statement are true
and correct in all material respect. Under no circumstances shall the Company cause or request the offer or sale of any Placement
Shares pursuant to this Agreement at a price lower than the minimum price authorized from time to time by the Company’s board
of directors, a duly authorized committee thereof or a duly authorized executive committee, and notified to the Agent in writing.


 






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


 


a. Registration
Statement and Prospectus. The transactions contemplated by this Agreement meet the requirements for and comply with the conditions
for the use of Form S-3 under the Securities Act. The Registration Statement (including the 462(b) Registration Statement) has
been filed with the Commission and has been declared effective under the Securities Act. The Prospectus Supplement will name the
Agent as the agent in the section entitled “Plan of Distribution.” The Company has not received, and has no notice
of, any order of the Commission preventing or suspending the use of the Registration Statement, or threatening or instituting proceedings
for that purpose. The Registration Statement and, assuming no act or omission on the part of the Agent that would make such statements
untrue, the offer and sale of Placement Shares as contemplated hereby meet the requirements of Rule 415 under the Securities Act
and comply in all material respects with said Rule. Any statutes, regulations, contracts or other documents that are required to
be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement have been
so described or filed, as applicable. Copies of the Registration Statement, the Prospectus, and any such amendments or supplements
and all documents incorporated by reference therein that were filed with the Commission on or prior to the date of this Agreement
have been delivered, or are available through EDGAR, to the Agent and its counsel. The Company has not distributed and, prior to
the later to occur of each Settlement Date and completion of the distribution of the Placement Shares, will not distribute any
offering material in connection with the offering or sale of the Placement Shares other than the Registration Statement and the
Prospectus and any Issuer Free Writing Prospectus (as defined below) to which the Agent has consented, which consent will not be
unreasonably withheld or delayed, or that is required by applicable law or the listing maintenance requirements of the Exchange.
The Common Stock is currently quoted on the Exchange under the trading symbol “CDZI”. The Company has not, in the 12
months preceding the date hereof, received notice from the Exchange to the effect that the Company is not in compliance with the
listing or maintenance requirements of the Exchange. To the Company’s knowledge, it is in compliance with all such listing
and maintenance requirements.


 






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b. Accurate
Disclosure. Neither the Registration Statement nor any amendment thereto, at the effective time of each part thereof, contained,
contains or will contain an untrue statement of a material fact or omitted, omits or will omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading. Neither the Prospectus nor any supplement thereto,
as of its issue date, at the time of any filing with the Commission pursuant to Rule 424(b), included, includes or will include
an untrue statement of a material fact or omitted, omits or will omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not misleading. The representations and warranties in this Section
6(b) shall not apply to statements in or omissions from the Registration Statement (or any amendment thereto) or the Prospectus
(or any supplement thereto) made in reliance upon, and in conformity with, written information furnished to the Company by the
Agent specifically for use in the preparation of such document.


 


c. Issuer
Free Writing Prospectuses. Each Issuer Free Writing Prospectus, if any, does not include any information that conflicts with
the information contained in the Registration Statement or the Prospectus. The foregoing sentence does not apply to statements
in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the
Company by the Agent specifically for use therein. At the earliest time after the filing of the Registration Statement that the
Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Securities Act)
of the Placement Shares and at the date hereof, the Company was not and is not an “ineligible issuer,” as defined in
Rule 405 under the Securities Act, including the Company or any subsidiary in the preceding three (3) years not having been convicted
of a felony or misdemeanor or having been made the subject of a judicial or administrative decree or order as described in Rule
405 of the Securities Act (without taking account of any determination by the Commission pursuant to Rule 405 of the Securities
Act that it is not necessary that the Company be considered an ineligible issuer), nor an “excluded issuer” as defined
in Rule 164 under the Securities Act. Each Issuer Free Writing Prospectus satisfied, as of its issue date and at all subsequent
times to the date hereof, all other conditions to use thereof as set forth in Rules 164 and 433 under the Securities Act.


 


d. No
Other Offering Materials. The Company has not distributed and will not distribute any prospectus or other offering material
in connection with the offering and sale of the Placement Shares other than the Registration Statement or the Prospectus or other
materials permitted by the Securities Act to be distributed by the Company; provided, however, that the Company has
not made and will not make any offer relating to the Placement Shares that would constitute a Free Writing Prospectus.


 


e. Financial
Statements. The financial statements of the Company, together with the related notes, set forth or incorporated by reference
in the Registration Statement and the Prospectus comply in all material respects with the requirements of the Securities Act and
the Exchange Act and fairly present the financial condition of the Company and its consolidated subsidiaries as of the dates indicated
and the results of operations and changes in cash flows for the periods therein specified in conformity with generally accepted
accounting principles in the United States (“GAAP”) consistently applied throughout the periods involved; the
supporting schedules included in the Registration Statement present fairly the information required to be stated therein; all non-GAAP
financial information included in the Registration Statement and the Prospectus complies with the requirements of Regulation G
and Item 10 of Regulation S-K under the Securities Act; and, except as disclosed in the Registration Statement and the Prospectus,
there are no material off-balance sheet arrangements (as defined in Regulation S-K under the Act, Item 303(a)(4)(ii)) or any other
relationships with unconsolidated entities or other persons, that may have a material current or, to the Company’s knowledge,
material future effect on the Company’s financial condition, results of operations, liquidity, capital expenditures, capital
resources or significant components of revenue or expenses. No other financial statements or schedules are required to be included
in the Registration Statement or the Prospectus.


 






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f.
Due Incorporation. Each of the Company and each of its Subsidiaries has been duly organized and is validly existing as a
corporation or other legal entity in good standing (or the foreign equivalent thereof) under the laws of its jurisdiction of incorporation
or organization. Each of the Company and its Subsidiaries is duly qualified to do business and is in good standing as a foreign
corporation or other legal entity in each jurisdiction in which its ownership or lease of its properties or the conduct of its
business requires such qualification and has all power and authority (corporate or other) necessary to own or hold its properties
and to conduct the businesses in which each is engaged, except where the failure to so qualify or have such power or authority
would not have and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the
condition (financial or otherwise), results of operations, assets or business of the Company and its Subsidiaries, taken as a whole
(any such effect, a “Material Adverse Effect”). As used in this Agreement, “Subsidiary” shall
mean a “significant subsidiary” as such term is defined in Rule 1-02 of Regulation S-X of the Commission.


 


g. Subsidiaries.
The membership interests or capital stock, as applicable, of each Subsidiary have been duly authorized and validly issued, are
fully paid and nonassessable and, except to the extent set forth in the Registration Statement, are owned by the Company directly,
free and clear of any claim, lien, encumbrance, security interest, restriction upon voting or transfer or any other claim of any
third party.


 


h. Due
Authorization. The Company has the full right, power and authority to enter into this Agreement and to perform and to discharge
its obligations hereunder and thereunder; and this Agreement has been duly authorized, executed, and delivered by the Company,
and this Agreement constitutes a valid and binding obligation of the Company enforceable in accordance with its terms, subject
to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and to general principles of
equity.


 






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i. Capitalization.
The authorized capital stock of the Company consists of 70,000,000 shares of Common Stock, of which 23,216,535 shares of Common
Stock were outstanding as of the close of business on March 26, 2018. All of the outstanding shares of Common Stock have been duly
authorized and are validly issued, fully paid and nonassessable. Other than (i) 571,274 shares of Common Stock reserved for issuance
under the Company’s employee benefit plans, stock option and employee stock purchase plans or other employee compensation
plans as such plans are in existence on the date hereof and described in the Registration Statement; (ii) 10,462,629 shares of
Common Stock underlying outstanding convertible notes; and (iv) 362,500 shares of Common Stock underlying outstanding warrants,
the Company has no shares of capital stock reserved for issuance. Except as described in the Registration Statement, there are
no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights,
repurchase rights, agreements, arrangements, calls, commitments or rights of any kind that obligate the Company or any of its Subsidiaries
to issue or sell any shares of capital stock or other securities of the Company or any of its Subsidiaries or any securities or
obligations convertible or exchangeable into or exercisable for, or giving any person a right to subscribe for or acquire, any
securities of the Company or any of its Subsidiaries, and no securities or obligations evidencing such rights are authorized, issued
or outstanding. Except as described in the Registration Statement, the Company does not have outstanding any bonds, debentures,
notes or other obligations the holders of which have the right to vote (or convertible into or exercisable for securities having
the right to vote) with the stockholders of the Company on any matter. None of the outstanding Shares were issued in violation
of any preemptive rights, rights of first refusal or other similar rights to subscribe for or purchase securities of the Company.
Except as described in the Registration Statement, neither the filing of the Registration Statement nor the offering or sale of
the Placement Shares as contemplated by this Agreement gives rise to any rights for or relating to the registration of any shares
of Common Stock or other securities of the Company (collectively “Registration Rights”) and any person to whom
the Company has granted Registration Rights, if any, has agreed not to exercise such rights until after expiration of any applicable
lock-up period. The Placement Shares to be issued and sold by the Company have been duly authorized and, when issued, delivered
and paid for in accordance with the terms of this Agreement, will have been validly issued and will be fully paid and nonassessable,
and the holders thereof will not be subject to personal liability by reason of being such holders.


 


j. No
Default, Termination or Lien. The execution, delivery and performance of this Agreement and the consummation of the transactions
contemplated hereby, and compliance by the Company with the terms of this Agreement, will not (with or without notice or lapse
of time or both) conflict with or result in a breach or violation of any of the terms or provisions of, constitute a default under,
give rise to any right of termination or other right or the cancellation or acceleration of any right or obligation or loss of
a benefit under, or give rise to the creation or imposition of any lien, encumbrance, security interest, claim or charge upon any
property or assets of the Company or any Subsidiary pursuant to, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries
is bound or to which any of the property or assets of the Company or any of its Subsidiaries is subject, nor will such actions
result in any violation of the provisions of the charter or by-laws (or analogous governing instruments, as applicable) of the
Company or any of its Subsidiaries or any law, statute, rule, regulation, judgment, order or decree of any court or governmental
agency or body, domestic or foreign, having jurisdiction over the Company or any of its Subsidiaries or any of their properties
or assets.


 


k.
No Consents. No consent, approval, authorization or order of, or qualification with, any governmental body or agency is
required for the performance by the Company of its obligations under this Agreement, except such as may be required under the Securities
Act, the rules of the Financial Industry Regulatory Authority (“FINRA”) or state securities or blue sky laws
or relating to the issuance of the Placement Shares with the NASDAQ Global Market.


 






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l. Independent
Accountants. PricewaterhouseCoopers LLP (“PwC”), who have certified certain financial statements and related
schedules included or incorporated by reference in the Registration Statement, is an independent registered public accounting firm
as required by the Securities Act and the rules and regulations thereunder and the Public Company Accounting Oversight Board (United
States) (“PCAOB”). Except as pre-approved in accordance with the requirements set forth in Section 10A of the
Exchange Act, PwC has not been engaged by the Company to perform any “prohibited activities” (as defined in Section
10A of the Exchange Act).


 


m. No
Material Adverse Change. There has not occurred any material adverse change, or any development involving a prospective material
adverse change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its Subsidiaries,
taken as a whole, from that set forth or contemplated in the Registration Statement or the Prospectus filed prior to the date hereof.


 


n. Legal
Proceedings. There are no legal or governmental proceedings, actions, suits or claims pending or, to the Company’s knowledge,
threatened to which the Company or any of its Subsidiaries is a party or to which any of the properties or assets of the Company
or any of its Subsidiaries is subject (i) other than proceedings accurately described in all material respects in the Registration
Statement and proceedings that would not have and would not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect, or (ii) that are required to be described in the Registration Statement and are not so described; and
there are no statutes, regulations, contracts or other documents to which the Company or any of its Subsidiaries is subject or
by which the Company or any of its Subsidiaries is bound that are required to be described in the Registration Statement or to
be filed as exhibits to the Registration Statement that are not described or filed as required. Neither the Company nor any Subsidiary,
nor any director or officer thereof, is or has been the subject of any legal or governmental proceedings, actions, suits or claims
of violation of or liability under federal or state securities laws or a claim of breach of fiduciary duty.


 


o. Regulatory
Permits. Each of the Company and its Subsidiaries possesses or has applied for all certificates, authorizations, licenses,
franchises, permits, orders and approvals issued or granted by the appropriate governmental or regulatory authorities, agencies,
courts, commissions or other entities, whether federal, state, local or foreign, or applicable self-regulatory organizations necessary
to conduct its business as currently conducted, except (i) where the failure to possess such certificates, authorizations, licenses,
franchises, permits, orders and approval, individually or in the aggregate, has not and would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect (“Material Permits”) and (ii) as accurately described
in all material respects in the Registration Statement, neither the Company nor any of its Subsidiaries has received any written
notice of proceedings relating to the revocation or material adverse modification of any such Material Permits (except as accurately
described in all material respects in the Registration Statement), and to the Company’s knowledge, there are no facts or
circumstances that would give rise to the revocation or material adverse modifications of any Material Permits.


 






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p. Material
Contracts. Except for Material Contracts, the Company and its Subsidiaries are not party to any agreements, contracts or commitments
that are material to the business, financial condition, assets or operations of the Company and its Subsidiaries that would be
required to be filed pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act. Neither the Company nor any of its Subsidiaries
is in material default under or in material violation of, nor to the Company’s knowledge, has received written notice of
termination or default under any Material Contract. For purposes of this Agreement, “Material Contract” means
any contract of the Company that was filed as an exhibit to the Registration Statement pursuant to Item 601(b)(10) of Regulation
S-K.


 


q. Investment
Company Act. Neither the Company nor any of its Subsidiaries is or, after giving effect to the purchase and sale of the Placement
Shares contemplated hereby and the application of the proceeds thereof, will become an “investment company” within
the meaning of the Investment Company Act of 1940, as amended (the “Investment Company Act”), and the rules
and regulations of the Commission thereunder.


 


r. No
Price Stabilization. Neither the Company, its Subsidiaries nor any of the Company’s or its Subsidiaries’ officers,
directors or affiliates has taken or will take, directly or indirectly, any action designed or intended to stabilize or manipulate
the price of any security of the Company, or which caused or resulted in, or which would in the future reasonably be expected to
cause or result in, stabilization or manipulation of the price of any security of the Company.


 


s. Title
to Property. The Company and its Subsidiaries have good and marketable title to all real and personal property owned by them
which is material to the business of the Company and its Subsidiaries, taken as a whole, in each case free and clear of all liens,
encumbrances and defects of title except such as are described in the Registration Statement or such as do not materially affect
the value of such property and do not interfere with the use made and proposed to be made of such property by the Company and its
Subsidiaries; and any real property and buildings held under lease by the Company and its Subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are not material and do not interfere with the use made and proposed
to be made of such property and buildings by the Company and its Subsidiaries, in each case except as described in the Registration
Statement.


 


t. No
Labor Disputes. No labor problem or dispute with the employees of the Company exists, or, to the Company’s knowledge,
is threatened or imminent, which would or would reasonably be expected, individually or in the aggregate, to result in a Material
Adverse Effect. The Company is not aware that any key employee or significant group of employees of the Company plans to terminate
employment with the Company. To the Company’s knowledge, no executive officer (as defined in Rule 501(f) of the Securities
Act) of the Company or any of its Subsidiaries is in violation of any material term of any employment contract, confidentiality,
disclosure or proprietary information agreement or non-competition agreement. Except for matters which would not and would not
reasonably be expected to, individually or in the aggregate, result in a Material Adverse Effect, (i) the Company has not engaged
in any unfair labor practice; (ii) there is (A) no unfair labor practice complaint pending or, to the Company’s knowledge,
threatened against the Company before the National Labor Relations Board, and no grievance or arbitration proceeding arising out
of or under collective bargaining agreements is pending or to the Company’s knowledge, threatened, (B) no strike, labor dispute,
slowdown or stoppage pending or, to the Company’s knowledge, threatened against the Company and (C) no union representation
dispute currently existing concerning the employees of the Company and (ii) to the Company’s knowledge, (A) no union organizing
activities are currently taking place concerning the employees of the Company and (B) there has been no violation of any federal,
state, local or foreign law relating to discrimination in the hiring, promotion or pay of employees, any applicable wage or hour
laws or any provision of the Employee Retirement Income Security Act of 1974 (“ERISA”) or the rules and regulations
promulgated thereunder concerning the employees of the Company.


 






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u. Taxes.
The Company (i) has timely filed all necessary federal, state, local and foreign income and franchise tax returns (or timely filed
applicable extensions therefore) that have been required to be filed and (ii) is not in default in the payment of any taxes which
were payable pursuant to said returns or any assessments with respect thereto, other than any which the Company is contesting in
good faith and for which adequate reserves have been provided and reflected in the financial statements included in the Registration
Statement. The Company does not have any tax deficiency that has been or, to the Company’s knowledge, is reasonably likely
to be asserted or threatened against it that would result or would reasonably be expected to result in, individually or in the
aggregate, a Material Adverse Effect.


 


v. ERISA.
The Company is in compliance in all material respects with all presently applicable provisions of ERISA; no “reportable event”
(as defined in ERISA) has occurred with respect to any “pension plan” (as defined in ERISA) for which the Company would
have any liability; the Company has not incurred and does not expect to incur liability under (i) Title IV of ERISA with respect
to termination of, or withdrawal from, any “pension plan” or (ii) Sections 412 or 4971 of the Internal Revenue Code
of 1986, as amended, including the regulations and published interpretations thereunder (the “Code”); and each
“pension plan” for which the Company would have any liability that is intended to be qualified under Section 401(a)
of the Code is so qualified in all material respects and nothing has occurred, whether by action or by failure to act, which would
cause the loss of such qualification.


 


w. Compliance
with Environmental Laws. Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor any
of its Subsidiaries is in violation of any statute, rule, regulation, decision or order of any governmental agency or body or any
court, relating to the use, disposal or release of hazardous or toxic substances or relating to the protection or restoration of
the environment or human exposure to hazardous or toxic substances (collectively, “Environmental Laws”), or
to the Company’s knowledge, operates any real property contaminated with any substance that is subject to any Environmental
Laws, is liable for any off-site disposal or contamination pursuant to any Environmental Laws, or is subject to any claim relating
to any Environmental Laws, which violation, contamination, liability or claim would or would reasonably be expected, individually
or in the aggregate, to have a Material Adverse Effect; and the Company is not aware of any pending investigation which might lead
to such a claim.


 


x. Intellectual
Property Rights. The Company and its Subsidiaries own or possess, or have the right to use, adequate trademarks, trade names
and other rights to inventions, know-how, patents, copyrights, confidential information and other intellectual property (collectively,
“Intellectual Property Rights”) necessary to conduct the business now operated by them, or presently employed
by them, and have not received any notice of infringement of or conflict with asserted rights of others with respect to any Intellectual
Property Rights, except such as would not and would not reasonably be expected to, individually or in the aggregate, have a Material
Adverse Effect.


 






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y. Foreign
Corrupt Practices Act. Neither the Company nor any of its Subsidiaries, nor to its knowledge, any director, officer, employee
or other person associated with or acting on behalf of the Company or any of its Subsidiaries has: (i) used any Company funds for
any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or
indirect unlawful payment to any foreign or domestic government official or employee from Company funds; (iii) caused the Company
or any of its Subsidiaries to be in violation of any provision of the United States Foreign Corrupt Practices Act of 1977; or (iv)
made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment from Company funds.


 


z. OFAC
and Similar Laws. None of the Company, any of its Subsidiaries or, to the Company’s knowledge, any director, officer,
agent, employee, affiliate or representative of the Company or any of its subsidiaries is an individual or entity (“Person”)
currently the subject or target of any sanctions administered or enforced by the United States Government, including, without limitation,
the U.S. Department of the Treasury’s Office of Foreign Assets Control, the United Nations Security Council, the European
Union, Her Majesty’s Treasury, 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 of Sanctions;
and the Company will not directly or indirectly use the proceeds of the sale of the Notes, or lend, contribute or otherwise make
available such proceeds to any subsidiaries, joint venture partners or other Person, to knowingly fund any activities of or business
with any Person, or in any country or territory, that, at the time of such funding, is the subject of Sanctions or in any other
manner that will result in a violation by any Person (including any Person participating in the transaction, whether as underwriter,
advisor, investor or otherwise) of Sanctions.


 


aa.Disclosure
Controls and Procedures. The Company has established and maintains disclosure controls and procedures (as defined in Exchange
Act Rules 13a-15(e) and 15d-15(e)) that are effective in all material respects to ensure that material information relating to
the Company, including any consolidated Subsidiaries, is made known to its chief executive officer and chief financial officer
by others within those entities. The Company’s certifying officers have evaluated the effectiveness of the Company’s
controls and procedures as of the end of the period covered by the most recently filed annual periodic report under the Exchange
Act (such date, the “Evaluation Date”). The Company presented in its most recently filed annual periodic report
under the Exchange Act the conclusions of the certifying officers about the effectiveness of the disclosure controls and procedures
based on their evaluations as of the Evaluation Date.


 


bb.Accounting
Controls. The Company and its Subsidiaries maintain a system of internal accounting and other controls sufficient to provide
reasonable assurances that (i) transactions are executed in accordance with management’s general or specific authorizations;
(ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain
accountability for assets; (iii) access to assets is permitted only in accordance with management’s general or specific authorization;
and (iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action
is taken with respect to any differences. Except as described in the Registration Statement, since the end of the Company’s
most recent audited fiscal year, there has been (A) no material weakness in the Company’s internal control over financial
reporting (whether or not remediated) and (B) 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.


 






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cc.Absence of
Material Changes. Subsequent to the respective dates as of which information is given in the Registration Statement, and except
as may be otherwise disclosed in the Registration Statement and the Prospectus, there has not been (i) any Material Adverse Effect,
(ii) any transaction which is material to the Company, (iii) any obligation, direct or contingent (including any off-balance sheet
obligations), incurred by the Company, which is material to the Company, (iv) any dividend or distribution of any kind declared,
paid or made on the capital stock of the Company, (v) any change in the capital stock (other than a change in the number of outstanding
shares of Common Stock due to grants of stock under the Company’s stock incentive plans existing on the date hereof or the
issuance of shares upon the exercise of outstanding options or warrants) or any issuance of options, warrants, convertible securities
or other rights to purchase the capital stock (other than grants of stock options under the Company’s stock option plans
existing on the date hereof) of the Company.


 


dd.Broker’s
Fees. Neither the Company nor any of its Subsidiaries is a party to any contract, agreement or understanding with any person
(other than this Agreement and any letter of understanding between the Company and the Agent) that would give rise to a valid claim
against the Company or the Agent for a brokerage commission, finder’s fee or like payment in connection with the offering
and sale of the Placement Shares or any transaction contemplated by this Agreement.


 


ee.Listing and
Maintenance Requirements. The Company is subject to and in compliance in all material respects with the reporting requirements
of Section 13 or Section 15(d) of the Exchange Act, as applicable. The Common Stock is registered pursuant to Section 12(b) of
the Exchange Act and is listed on the NASDAQ Global Market, and the Company has taken no action designed to, or reasonably likely
to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from
the NASDAQ Global Market, nor has the Company received any notification that the Commission or NASDAQ is contemplating terminating
such registration or listing. The Placement Shares will be duly authorized for listing on the NASDAQ Global Market immediately
following the date hereof.


 


ff.Sarbanes-Oxley
Act. The Company is in compliance in all material respects with all applicable provisions of the Sarbanes-Oxley Act of 2002
and all applicable rules and regulations promulgated thereunder or implementing the provisions thereof that are then in effect.


 


gg.NASDAQ Stockholder
Approval Rules. No approval of the stockholders of the Company under the rules and regulations of NASDAQ (including Rule 5635
of the NASDAQ Marketplace Rules) is required for the Company to issue and deliver the Placement Shares to the Agent.


 






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


 


ii. Eligibility
to use Form S-3. The conditions for use of Form S-3 in connection with the offer and sale of the Placement Shares, as set forth
in the General Instructions thereto, have been satisfied.


 


jj.Incorporated
Documents. The documents incorporated by reference in the Registration Statement and in the Prospectus, when they became effective
or were filed with the Commission, as the case may be, conformed in all material respects to the requirements of the Securities
Act or the Exchange Act, as applicable, and were filed on a timely basis with the Commission (except to the extent such untimely
filing did not affect the Company’s eligibility to use Form S-3) and none of such documents contained an untrue statement
of a material fact or omitted to state a material fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; any further documents so filed and incorporated by reference in the Registration Statement
or in the Prospectus, when such documents are filed with the Commission, will conform in all material respects to the requirements
of the Exchange Act, and will not contain an untrue statement of a material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances under which they were made, not misleading.


 


kk.Compliance
with Occupational Laws. To its knowledge, the Company and each of its subsidiaries (A) is in compliance, in all material respects,
with any and all applicable foreign, federal, state and local laws, rules, regulations, treaties, statutes and codes promulgated
by any and all governmental authorities (including pursuant to the Occupational Health and Safety Act) relating to the protection
of human health and safety in the workplace (“Occupational Laws”); (B) has received all material permits, licenses
or other approvals required of it under applicable Occupational Laws to conduct its business as currently conducted; and (C) is
in compliance, in all material respects, with all terms and conditions of such permit, license or approval. No material action,
proceeding, revocation proceeding, writ, injunction or claim is pending or, to the Company’s knowledge, threatened against
the Company or any of its subsidiaries relating to Occupational Laws, and the Company does not have knowledge of any facts, circumstances
or developments relating to its operations or cost accounting practices that could reasonably be expected to form the basis for
or give rise to such actions, suits, investigations or proceedings.


 






    	 	14	 



     


    

 


ll.Statistical
Information. Any third-party statistical and market-related data included in the Registration Statement and the Prospectus
are based on or derived from sources that the Company believes to be reliable and accurate in all material respects.


 


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


 


nn.FINRA Matters.
Except as previously disclosed to counsel for the Agent or as set forth in the Registration Statement and the Prospectus, to the
Company’s knowledge, no beneficial owners of the Company’s capital stock or subordinated debt who, together with their
associated persons and affiliates, hold in the aggregate 10% or more of such capital stock or subordinated debt, have any direct
or indirect association or affiliate with a FINRA member. In addition, the Company represents that the Company (i) has a non-affiliate,
public common equity float of at least $150 million or (ii) a non-affiliate, public common equity float of at least $100 million
and annual trading volume of at least three million shares.


 


oo. NASDAQ
Marketplace Rules. Except as described in the Registration Statement or the Prospectus, the Company is and will be in compliance
in all material respects with all applicable corporate governance requirements set forth in the NASDAQ Marketplace Rules.


 


pp.Six Month Period
Prior to Offering. Except as described in the Registration Statement and the Prospectus, the Company has not sold, issued or
distributed any shares of Common Stock during the six-month period preceding the date hereof, including any sales pursuant to Rule
144A under, or Regulation D or S of, the Securities Act, other than shares issued pursuant to employee benefit plans, qualified
stock option plans or other employee or consultant compensation plans or pursuant to outstanding options, rights or warrants.


 






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


 


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


 


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


 






    	 	16	 



     


    

 


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


 


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


 


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


 


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


 


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


 






    	 	17	 



     


    

 


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


 


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


 


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


 


k. Required
Filings Relating to Placement of Placement Shares. The Company agrees that on such dates as the Securities Act shall require,
the Company will (i) file a prospectus supplement with the Commission under the applicable paragraph of Rule 424(b) under the Securities
Act (each and every date a filing under Rule 424(b) is made, a “Filing Date”), which prospectus supplement will
set forth, within the relevant period, the amount of Placement Shares sold through the Agent, the Net Proceeds to the Company and
the compensation payable by the Company to the Agent with respect to such Placement Shares (provided that the Company may satisfy
its obligations under this Section 7(k) by making a filing pursuant to the Exchange Act that includes the required information),
and (ii) deliver such number of copies of each such prospectus supplement to each exchange or market on which such sales were effected
as may be required by the rules or regulations of such exchange or market.


 






    	 	18	 



     


    

 


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


 


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


 


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


 


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


 


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


 


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


 


the Company shall furnish the Agent (but
in the case of clause (iv) above only if the Agent reasonably determines that the information contained in such Form 8-K is material)
with a certificate, in the form attached hereto as Exhibit 7(1). The requirement to provide a certificate under this Section
7(1) shall be waived for any Representation Date occurring at a time at which no Placement Notice is pending, which waiver
shall continue until the earlier to occur of the date the Company delivers a Placement Notice hereunder (which for such calendar
quarter shall be considered a Representation Date) and the next occurring Representation Date on which the Company files its annual
report on Form 10-K. Notwithstanding the foregoing, (i) upon the delivery of the first Placement Notice hereunder and (ii) if the
Company subsequently decides to sell Placement Shares following a Representation Date when the Company relied on such waiver and
did not provide the Agent with a certificate under this Section 7(1), then before the Agent sells any Placement Shares,
the Company shall provide the Agent with a certificate, in the form attached hereto as Exhibit 7(1), dated the date of the
Placement Notice.


 






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m. Legal
Opinion. On or prior to the date of the first Placement Notice given hereunder the Company shall cause to be furnished to the
Agent a written opinion and a negative assurance letter of Greenberg Traurig, LLP (“Company Counsel”), or other
counsel reasonably satisfactory to the Agent, each in form and substance reasonably satisfactory to the Agent. Thereafter, within
five (5) Trading Days of each Representation Date with respect to which the Company is obligated to deliver a certificate in the
form attached hereto as Exhibit 7(l) for which no waiver is applicable, the Company shall cause to be furnished to the Agent
a negative assurance letter of Company Counsel in form and substance reasonably satisfactory to the Agent; provided that,
in lieu of such negative assurance for subsequent periodic filings under the Exchange Act, counsel may furnish the Agent with a
letter (a “Reliance Letter”) to the effect that the Agent may rely on the negative assurance letter previously
delivered under this Section 7(m) to the same extent as if it were dated the date of such letter (except that statements
in such prior letter shall be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented as of
the date of the Reliance Letter).


 


n. Comfort
Letter. On or prior to the date of the first Placement Notice given hereunder and within five (5) Trading Days after each subsequent
Representation Date, other than pursuant to Section 7(l)(iii), the Company shall cause its independent accountants to furnish
the Agent letters (the “Comfort Letters”), dated the date the Comfort Letter is delivered, which shall meet
the requirements set forth in this Section 7(n). The Comfort Letter from the Company’s independent accountants shall
be in a form and substance reasonably satisfactory to the Agent, (i) confirming that they are an independent public accounting
firm within the meaning of the Securities Act and the PCAOB, (ii) stating, as of such date, the conclusions and findings of such
firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters”
to underwriters in connection with registered public offerings (the first such letter, the “Initial Comfort Letter”)
and (iii) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter
had it been given on such date and modified as necessary to relate to the Registration Statement and the Prospectus, as amended
and supplemented to the date of such letter.


 


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


 


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


 


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


 






    	 	20	 



     


    

 


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


 


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


 


9. Payment
of Expenses. The Company will pay all expenses incident to the performance of its obligations under this Agreement, including
(i) the preparation, filing, including any fees required by the Commission, and printing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment and supplement thereto and each Free Writing Prospectus,
in such number as the Agent shall deem reasonably necessary, (ii) the printing and delivery to the Agent of this Agreement and
such other documents as may be required in connection with the offering, purchase, sale, issuance or delivery of the Placement
Shares, (iii) the preparation, issuance and delivery of the certificates, if any, for the Placement Shares to the Agent, including
any stock or other transfer taxes and any capital duties, stamp duties or other duties or taxes payable upon the sale, issuance
or delivery of the Placement Shares to the Agent, (iv) the fees and disbursements of the counsel, accountants and other advisors
to the Company, (v) the reasonable and documented out-of-pocket fees and disbursements of counsel to the Agent up to $35,000 and
an additional $1,500 per quarter so long as this Agreement remains in effect; (vi) the fees and expenses of the transfer agent
and registrar for the Common Stock, (vii) the filing fees incident to any review by FINRA of the terms of the sale of the Placement
Shares, and (viii) the fees and expenses incurred in connection with the listing of the Placement Shares on the Exchange.


 






    	 	21	 



     


    

 


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


 


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


 


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


 


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


 


d. Material
Changes. Except as contemplated in the Prospectus, or disclosed in the Company’s reports filed with the Commission, there
shall not have been any Material Adverse Effect, or any development that would cause a Material Adverse Effect, or a downgrading
in or withdrawal of the rating assigned to any of the Company’s securities (other than asset backed securities) by any “nationally
recognized statistical rating organization,” as such term is defined by the Commission for purposes of Rule 436(g)(2) under
the Securities Act (a “Rating Organization”), or a public announcement by any Rating Organization that it has
under surveillance or review its rating of any of the Company’s securities (other than asset backed securities), the effect
of which, in the case of any such action by a Rating Organization described above, in the reasonable judgment of the Agent (without
relieving the Company of any obligation or liability it may otherwise have), is so material as to make it impracticable or inadvisable
to proceed with the offering of the Placement Shares on the terms and in the manner contemplated in the Prospectus.


 






    	 	22	 



     


    

 


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


 


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


 


g. Representation
Certificate. The Agent shall have received the certificate required to be delivered pursuant to Section 7(1) on or before
the date on which delivery of such certificate is required pursuant to Section 7(1).


 


h. Secretary’s
Certificate. On or prior to the first Representation Date, the Agent shall have received a certificate, signed on behalf of
the Company by its corporate Secretary, in form and substance reasonably satisfactory to the Agent and its counsel.


 


i. No
Suspension. Trading in the Common Stock shall not have been suspended on the Exchange and the Common Stock shall not have been
delisted from the Exchange.


 


j. Other
Materials. On each date on which the Company is required to deliver a certificate pursuant to Section 7(1), the Company
shall have furnished to the Agent such appropriate further information, certificates and documents as the Agent may reasonably
request and which are usually and customarily furnished by an issuer of securities in connection with a securities offering of
the type contemplated hereby. All such opinions, certificates, letters and other documents will be in compliance with the provisions
hereof.


 


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


 


l. Approval
for Listing. The Placement Shares shall either have been approved for listing on the Exchange, subject only to notice of issuance,
or the Company shall have filed an application for listing of the Placement Shares on the Exchange at, or prior to, the issuance
of any Placement Notice.


 


m. No
Termination Event. There shall not have occurred any event that would permit the Agent to terminate this Agreement pursuant
to Section 13(a).


 






    	 	23	 



     


    

 


11. Indemnification
and Contribution.


 


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


 


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


 


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


 


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


 


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


 


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


 






    	 	24	 



     


    

 


c. Procedure.
Any party that proposes to assert the right to be indemnified under this Section 11 will, promptly after receipt of notice
of commencement of any action against such party in respect of which a claim is to be made against an indemnifying party or parties
under this Section 11, notify each such indemnifying party of the commencement of such action, enclosing a copy of all papers
served, but the omission so to notify such indemnifying party will not relieve the indemnifying party from (i) any liability that
it might have to any indemnified party otherwise than under this Section 11 and (ii) any liability that it may have to any
indemnified party under the foregoing provisions of this Section 11 unless, and only to the extent that, such omission results
in the forfeiture of substantive rights or defenses by the indemnifying party. If any such action is brought against any indemnified
party and it notifies the indemnifying party of its commencement, the indemnifying party will be entitled to participate in and,
to the extent that it elects by delivering written notice to the indemnified party promptly after receiving notice of the commencement
of the action from the indemnified party, jointly with any other indemnifying party similarly notified, to assume the defense of
the action, with counsel reasonably satisfactory to the indemnified party, and after notice from the indemnifying party to the
indemnified party of its election to assume the defense, the indemnifying party will not be liable to the indemnified party for
any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred
by the indemnified party in connection with the defense. The indemnified party will have the right to employ its own counsel in
any such action, but the fees, expenses and other charges of such counsel will be at the expense of such indemnified party unless
(1) the employment of counsel by the indemnified party has been authorized in writing by the indemnifying party, (2) the indemnified
party has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other indemnified
parties that are different from or in addition to those available to the indemnifying party, (3) a conflict or potential conflict
of interest exists (based on advice of counsel to the indemnified party) between the indemnified party and the indemnifying party
(in which case the indemnifying party will not have the right to direct the defense of such action on behalf of the indemnified
party) or (4) the indemnifying party has not in fact employed counsel to assume the defense of such action within a reasonable
time after receiving notice of the commencement of the action, in each of which cases the reasonable and documented out-of-pocket
fees, disbursements and other charges of counsel will be at the expense of the indemnifying party or parties. It is understood
that the indemnifying party or parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the reasonable and documented out-of-pocket fees, disbursements and other charges of more than one separate firm
admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such reasonable and documented
out-of-pocket fees, disbursements and other charges will be reimbursed by the indemnifying party promptly after the indemnifying
party receives a written invoice relating to fees, disbursements and other charges in reasonable detail. An indemnifying party
will not, in any event, be liable for any settlement of any action or claim effected without its written consent. No indemnifying
party shall, without the prior written consent of each indemnified party, settle or compromise or consent to the entry of any judgment
in any pending or threatened claim, action or proceeding relating to the matters contemplated by this Section 11 (whether
or not any indemnified party is a party thereto), unless such settlement, compromise or consent (1) includes an unconditional release
of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and (2) does not
include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.


 






    	 	25	 



     


    

 


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


 






    	 	26	 



     


    

 


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


 


13. Termination.


 


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


 






    	 	27	 



     


    

 


b. The
Company shall have the right, by giving five (5) days’ notice as hereinafter specified to terminate this Agreement in its
sole discretion at any time after the date of this Agreement. Any such termination shall be without liability of any party to any
other party except that the provisions of Section 9 (Payment of Expenses), Section 11 (Indemnification and Contribution),
Section 12 (Representations and Agreements to Survive Delivery), Section 18 (Governing Law and Time; Waiver of Jury
Trial), Section 19 (Consent to Jurisdiction) and Section 20 (Use of Information) hereof shall remain in full force
and effect notwithstanding such termination.


 


c. The
Agent shall have the right, by giving five (5) days’ notice as hereinafter specified to terminate this Agreement in its sole
discretion at any time after the date of this Agreement. Any such termination shall be without liability of any party to any other
party except that the provisions of Section 9 (Payment of Expenses), Section 11 (Indemnification and Contribution),
Section 12 (Representations and Agreements to Survive Delivery), Section 18 (Governing Law and Time; Waiver of Jury
Trial), Section 19 (Consent to Jurisdiction) and Section 20 (Use of Information) hereof shall remain in full force
and effect notwithstanding such termination.


 


d. Unless
earlier terminated pursuant to this Section 13, this Agreement shall automatically terminate upon the issuance and sale
of all of the Placement Shares through the Agent on the terms and subject to the conditions set forth herein except that the provisions
of Section 9 (Payment of Expenses), Section 11 (Indemnification and Contribution), Section 12 (Representations
and Agreements to Survive Delivery), Section 18 (Governing Law and Time; Waiver of Jury Trial), Section 19 (Consent
to Jurisdiction) and Section 20 (Use of Information) hereof shall remain in full force and effect notwithstanding such termination.


 


e. This
Agreement shall remain in full force and effect unless terminated pursuant to Sections 13(a), (b), (c), or
(d) above or otherwise by mutual agreement of the parties; provided, however, that any such termination by
mutual agreement shall in all cases be deemed to provide that Section 9 (Payment of Expenses), Section 11 (Indemnification
and Contribution), Section 12 (Representations and Agreements to Survive Delivery), Section 18 (Governing Law and
Time; Waiver of Jury Trial), Section 19 (Consent to Jurisdiction) and Section 20 (Use of Information) shall remain
in full force and effect. Upon termination of this Agreement, the Company shall not have any liability to the Agent for any discount,
commission or other compensation with respect to any Placement Shares not otherwise sold by the Agent under this Agreement.


 


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


 






    	 	28	 



     


    

 


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


 


B. Riley FBR, Inc.


299 Park Avenue, 7th Floor


New York, NY 10171


Attention: General Counsel


Telephone: (310) 966-1444


Email: atmdesk@brileyfbr.com


 


with a copy to:


 


Morgan, Lewis & Bockius LLP


1400 Page Mill Road


Palo Alto, CA 94304


Attention: Albert Lung


Telephone: (650) 843-7263


Email: albert.lung@morganlewis.com


 


and if to the Company, shall be delivered
to:


 


Cadiz, Inc.


550 South Hope Street, Suite 2850


Los Angeles, CA 90071


Attention: Chief Financial Officer


Telephone: (213) 271-1600


Email:


 


with a copy to:


 


Greenberg Traurig, LLP





1840 Century Park East, Suite 1900





Los Angeles, CA 90067-2121


Attention: Kevin Friedmann


Telephone: (310) 586-7747


Email: friedmannk@gtlaw.com


 


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


 






    	 	29	 



     


    

 


15. Successors
and Assigns. This Agreement shall inure to the benefit of and be binding upon the Company and the Agent and their respective
successors and the affiliates, controlling persons, officers and directors referred to in Section 11 hereof. References
to any of the parties contained in this Agreement shall be deemed to include the successors and permitted assigns of such party.
Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective
successors and permitted assigns any rights, remedies, obligations or liabilities under or by reason of this Agreement, except
as expressly provided in this Agreement. Neither the Company nor the Agent may assign its rights or obligations under this Agreement
without the prior written consent of the other party.


 


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


 


17. Entire
Agreement; Amendment; Severability. This Agreement (including all schedules and exhibits attached hereto and Placement Notices
issued pursuant hereto) constitutes the entire agreement and supersedes all other prior and contemporaneous agreements and undertakings,
both written and oral, among the parties hereto with regard to the subject matter hereof. Neither this Agreement nor any term hereof
may be amended except pursuant to a written instrument executed by the Company and the Agent. In the event that any one or more
of the provisions contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable as
written by a court of competent jurisdiction, then such provision shall be given full force and effect to the fullest possible
extent that it is valid, legal and enforceable, and the remainder of the terms and provisions herein shall be construed as if such
invalid, illegal or unenforceable term or provision was not contained herein, but only to the extent that giving effect to such
provision and the remainder of the terms and provisions hereof shall be in accordance with the intent of the parties as reflected
in this Agreement.


 


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


 


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


 






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


 


21. Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument. Delivery of an executed Agreement by one party to the other may be made by facsimile
transmission or email of a .pdf attachment.


 


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


 


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


 


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


 


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


 






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


 


c. the
Agent has not provided any legal, accounting, regulatory or tax advice with respect to the transactions contemplated by this Agreement
and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;


 


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


 


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


 


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


 


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


 


“Company’s
knowledge” and similar expressions mean the actual knowledge of an executive officer of the Company as of the date to
which the expression relates.


 


“Free Writing
Prospectus” means a free writing prospectus as defined in Rule 405 of the Securities Act.


 


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


 


“Market Materials”
means any and all marketing materials used by the Company in the road show conducted in connection with the offering.


 


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


 






    	 	32	 



     


    

 


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


 


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


 


[Remainder of the page intentionally left
blank]


 






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


 


	 	Very truly yours,
	 	 	 
	 	CADIZ, INC.
	 	 	 
	 	By:	/s/ Timothy J. Shaheen
	 	Name:	Timothy J. Shaheen
	 	Title:	Chief Financial Officer




 


	 	ACCEPTED as of the date first-above written:
	 	 	 
	 	B. RILEY FBR, INC.
	 	 	 
	 	By:	/s/
    Patrice McNicoll             
	 	Name:	Patrice McNicoll
	 	Title:	Co-Head of Investment Banking




 


 






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SCHEDULE 1


 


Form of Placement Notice


 


	From:	Cadiz, Inc.
	 	 
	To:	B. Riley FBR, Inc.
	 	 
	Attention:	[       ]
	 	 
	Subject:	At Market Issuance--Placement Notice



		 	 



Ladies and Gentlemen:


 


Pursuant to the terms
and subject to the conditions contained in the At Market Issuance Sales Agreement between Cadiz, Inc., a Delaware corporation (the
“Company”), and B. Riley FBR, Inc. (the “Agent”), dated March 27, 2018, the Company hereby
requests that the Agent sell up to [_____] of the Company’s Common Stock, par value $0.01 per share, at a minimum market
price of $[] per share, during the time period beginning [month, day, time] and ending [month, day, time].


 






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SCHEDULE 2


 


Compensation


 


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


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 








    	 	36	 



     


    

 





SCHEDULE 3


 


Notice Parties


 


The Company


 


B. Riley FBR


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 








    	 	37	 



     


    

 


EXHIBIT 7(1)


 


Form of Representation
Date Certificate


 


___________, 20__


 


This Representation
Date Certificate (this “Certificate”) is executed and delivered in connection with Section 7(1) of the
At Market Issuance Sales Agreement (the “Agreement”), dated March 27, 2018, and entered into between Cadiz,
Inc. (the “Company”) and B. Riley FBR, Inc. All capitalized terms used but not defined herein shall have the
meanings given to such terms in the Agreement.


 


The Company hereby certifies as follows:


 


1. As
of the date of this Certificate (i) the Registration Statement does not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and
(ii) neither the Registration Statement nor the Prospectus contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which
they were made, not misleading and (iii) no event has occurred as a result of which it is necessary to amend or supplement the
Prospectus in order to make the statements therein not untrue or misleading for this paragraph 1 to be true.


 


2. Each
of the representations and warranties of the Company contained in the Agreement were, when originally made, and are, as of the
date of this Certificate, true and correct in all material respects.


 


3. Except
as waived by the Agent in writing, each of the covenants required to be performed by the Company in the Agreement on or prior to
the date of the Agreement, this Representation Date, and each such other date prior to the date hereof as set forth in the Agreement,
has been duly, timely and fully performed in all material respects and each condition required to be complied with by the Company
on or prior to the date of the Agreement, this Representation Date, and each such other date prior to the date hereof as set forth
in the Agreement has been duly, timely and fully complied with in all material respects.


 


4. Subsequent
to the date of the most recent financial statements in the Prospectus, and except as described in the Prospectus, including Incorporated
Documents, there has been no Material Adverse Effect.


 


5. No
stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued, and no proceedings
for that purpose have been instituted or are pending or threatened by any securities or other governmental authority (including,
without limitation, the Commission).


 


6. No
order suspending the effectiveness of the Registration Statement or the qualification or registration of the Placement Shares under
the securities or Blue Sky laws of any jurisdiction are in effect and no proceeding for such purpose is pending before, or threatened,
to the Company’s knowledge or in writing by, any securities or other governmental authority (including, without limitation,
the Commission).


 






    	 	38	 



     


    

 


The undersigned has executed this Representation
Date Certificate as of the date first written above.


 





	 	CADIZ, INC.
	 	 	 
	 	By:	               
	 	Name:	
	 	Title:	


 






    	 	39	 



     


    

 





EXHIBIT 23


 


Permitted Issuer Free Writing Prospectuses


 


[None.]


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


40