Exhibit 10.1


 


IDEANOMICS, INC.


 


$150,000,000


 


Common Stock


($0.001 par value per share)


 


Sales Agreement


 


February 26, 2021


 


Roth Capital Partners, LLC


888 San Clemente Drive, Suite 400


Newport Beach, CA 92660


 


Ladies and Gentlemen:


 


Ideanomics, Inc., a
Nevada corporation (the “Company”), confirms its agreement (this “Agreement”) with Roth Capital
Partners, LLC (the “Agent”), as follows:


 


1.                 
Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement,
on the terms and subject to the conditions set forth herein, it may issue and sell through or to the Agent, shares (the “Placement
Shares”) of common stock of the Company, $0.001 par value per share (the “Common Stock”) having an
aggregate offering price of up to $150,000,000, provided, however, that in no event shall the Company issue or sell through
Agent such number of Placement Shares that (a) exceeds the number or dollar amount of shares of Common Stock that may be sold pursuant
to the Registration Statement (as defined below), or (b) exceeds the number of authorized but unissued shares of Common Stock of
the Company (the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto
agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under
this Agreement shall be the sole responsibility of the Company and that Agent shall have no obligation in connection with such
compliance. The issuance and sale of Placement Shares through or to Agent will be effected pursuant to the Registration Statement
(as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”),
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 Commission a registration statement on Form S-3 (File No. 333-252230),
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 a prospectus supplement specifically relating to the Placement
Shares (the “Prospectus Supplement”) to the base prospectus included as part of such registration
statement. The Company will furnish to the Agent, for use by the Agent, copies of the 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, or any subsequent registration
statement on Form S-3 filed pursuant to Rule 415(a)(6) under the Securities Act by the Company to cover any Placement Shares,
is herein called the “Registration Statement.” The base prospectus, including all documents incorporated
therein by reference, included in the Registration Statement, as it may be supplemented by the Prospectus Supplement, in the
form in which such 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, together with any then issued Issuer Free Writing Prospectus (defined
below), 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 or
deemed to be 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 deemed to be
incorporated by reference therein (the “Incorporated Documents”). For purposes of this Agreement, all
references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include
any 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 email notice (or other method mutually agreed to in writing by the Parties) of the number or dollar
value 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 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 have been sold, (iii) the Company suspends or terminates the Placement
Notice or (iv) the Agreement has been terminated under the provisions of Section 12. The amount of any discount,
commission or other compensation to be paid by the Company to 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 this Agreement and the terms of a Placement Notice, the terms of the Placement Notice will control.


 






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3.                 
Sale of Placement Shares by Agent. Subject to the provisions of Section 5(a), the Agent, for the
period specified in the Placement Notice, 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, 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 the Placement
Notice, the Agent may sell Placement Shares by any method permitted by law deemed to be an “at the market offering”
as defined in Rule 415 of the Securities Act.


 


4.                 
Suspension of Sales.


 


(a)              
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; 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. Each party 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 may be amended from time to time.


 


(b)              
Notwithstanding any other provision of this Agreement, during any period in which the Company is in possession of
material non-public information, the Company and the Agent agree that (i) no sale of Placement Shares will take place, (ii) the
Company shall not request the sale of any Placement Shares, and (iii) the Agent shall not be obligated to sell or offer to sell
any Placement Shares.


 








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


 






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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 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 the Agent’s commission,
discount or other compensation for such sales payable by the Company pursuant to Section 2 hereof.


 


(c)              
Delivery of Placement Shares. On each Settlement Date, against payment of the Net Proceeds, 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 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, the Company agrees that in addition to
and in no way limiting the rights and obligations set forth in Section 10(a) hereto, it will (i) hold the Agent harmless
against any loss, claim, damage, or expense (including reasonable 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 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 gross sales proceeds 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 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. 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,
duly authorized committee thereof or a duly authorized executive committee, and notified to the Agent in writing. Further,
under no circumstances shall the Company cause or permit the aggregate offering amount of Placement Shares sold pursuant to
this Agreement to exceed the Maximum Amount.


 






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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 Company and 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
has been filed with the Commission and 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 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. 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 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 to which Agent has consented. Except as disclosed in the Incorporated Documents,
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. The Company has no reason to believe that it will not in the
foreseeable future continue to be in compliance with all such listing and maintenance requirements.


 


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


 






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


 


(d)              
Financial Information. The financial statements of the Company included or incorporated by reference in the
Registration Statement, the Prospectus and the Issuer Free Writing Prospectuses, if any, together with the related notes and schedules,
present fairly, in all material respects, the financial position of the Company as of the dates indicated and the results of operations,
cash flows and changes in stockholders’ equity of the Company for the periods specified and have been prepared in compliance
with the requirements of the Securities Act and Exchange Act and in conformity with generally accepted accounting principles in
the United States (“GAAP”) applied on a consistent basis (except for (i) such adjustments to accounting
standards and practices as are noted therein, (ii) in the case of unaudited interim financial statements, to the extent such
financial statements may not include footnotes required by GAAP or may be condensed or summary statements and (iii) such adjustments
which will not be material, either individually or in the aggregate) during the periods involved; the other financial and statistical
data with respect to the Company contained or incorporated by reference in the Registration Statement, the Prospectus and the Issuer
Free Writing Prospectuses, if any, are accurately and fairly presented and prepared on a basis consistent with the financial statements
and books and records of the Company; there are no financial statements (historical or pro forma) that are required to be included
or incorporated by reference in the Registration Statement, or the Prospectus that are not included or incorporated by reference
as required; the Company does not have any material liabilities or obligations, direct or contingent (including any off-balance
sheet obligations), not described in the Registration Statement (excluding the exhibits thereto), and the Prospectus; and all disclosures
contained or incorporated by reference in the Registration Statement, the Prospectus and the Issuer Free Writing Prospectuses,
if any, regarding “non-GAAP financial measures” (as such term is defined by the rules and regulations of the Commission)
comply in all material respects with Regulation G of the Exchange Act and Item 10 of Regulation S-K under the Securities Act,
to the extent applicable.


 


(e)              
Conformity with EDGAR Filing. The Prospectus delivered to the Agent for use in connection with the sale of
the Placement Shares pursuant to this Agreement will be identical to the versions of the Prospectus created to be transmitted to
the Commission for filing via EDGAR, except to the extent permitted by Regulation S-T.


 


(f)                Organization.
The Company is duly organized, validly existing as a corporation and in good standing under the laws of its jurisdiction of
organization. The Company is, and will be, duly licensed or qualified as a foreign corporation for transaction of business
and in good standing under the laws of each other jurisdiction in which its ownership or lease of property or the conduct of
its business requires such license or qualification, and has all corporate power and authority necessary to own or hold its
properties and to conduct its business as described in the Registration Statement and the Prospectus, except where the
failure to be so qualified or in good standing or have such power or authority would not, individually or in the aggregate,
have a material adverse effect on or affecting the assets, business, operations, earnings, properties, condition (financial
or otherwise), prospects, stockholders’ equity or results of operations of the Company or prevent or materially
interfere with consummation of the transactions contemplated hereby (a “Material Adverse Effect”).


 






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(g)              
Subsidiaries. The Company does not own or control, directly or indirectly, any corporation, association or
other entity other than: (i) the subsidiaries listed in Exhibit 21.1 to the Company’s Annual Report on Form 10-K for the
most recently ended fiscal year, other than those subsidiaries not required to be listed on Exhibit 21.1 by Item 601 of Regulation
S-K under the Exchange Act; (ii) the subsidiaries disclosed in the other Incorporated Documents; and (iii) those subsidiaries formed
or acquired since the latest day of the most recently ended fiscal year. The Company owns directly or indirectly, all of the equity
interests of its subsidiaries free and clear of any lien, charge, security interest, encumbrance, right of first refusal or other
restriction, and all the equity interests of its subsidiaries are validly issued and are fully paid, non-assessable and free of
preemptive and similar rights.


 


(h)              
No Violation or Default. The Company is not (i) in violation of its charter or by-laws or similar
organizational documents; (ii) in default, and no event has occurred that, with notice or lapse of time or both, would constitute
such a default, in the due performance or observance of any term, covenant or condition contained in any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which the Company is a party or by which the Company is bound or to
which any of the property or assets of the Company is subject; or (iii) in violation of any law or statute or any judgment,
order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of each of clauses
(ii) and (iii) above, for any such violation or default that would not, individually or in the aggregate, have a Material
Adverse Effect. To the Company’s knowledge, no other party under any material contract or other agreement to which it is
a party is in default in any respect thereunder where such default would have a Material Adverse Effect.


 


(i)                 No Material
Adverse Effect. Subsequent to the respective dates as of which information is given in the Registration Statement, the
Prospectus and the Issuer Free Writing Prospectuses, if any, (including any document deemed incorporated by reference
therein), and except as otherwise disclosed in the Incorporated Documents, there has not been (i) any Material Adverse
Effect, (ii) any transaction which is material to the Company, (iii) any obligation or liability, direct or
contingent (including any off-balance sheet obligations), incurred by the Company which is material to the Company,
(iv) any material change in the capital stock or outstanding long-term indebtedness (other than (A) the grant of
additional awards under equity incentive plans, (B) changes in the number of outstanding Common Stock due to the
issuance of shares upon exercise or conversion of securities exercisable for or convertible into Common Stock outstanding on
the date hereof, (C) any repurchase of capital stock of the Company, (D) as a result of the sale of Placement
Shares, or (E) other than as publicly reported or announced), or (v) any dividend or distribution of any kind
declared, paid or made on the capital stock of the Company other than in each case above in the ordinary course of business
or as otherwise disclosed in the Registration Statement or Prospectus (including any document deemed incorporated by
reference therein).


 






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(j)                
Capitalization. The issued and outstanding shares of capital stock of the Company have been validly issued,
are fully paid and non-assessable and, other than as disclosed in the Registration Statement or the Prospectus, are not subject
to any preemptive rights, rights of first refusal or similar rights. The Company has an authorized, issued and outstanding capitalization
as set forth in the Registration Statement and the Prospectus as of the dates referred to therein (other than the grant of additional
options, restricted stock units or other equity compensation granted pursuant to the Company’s existing equity compensation
plans, or changes in the number of outstanding shares of Common Stock of the Company due to the issuance of shares upon the exercise
or conversion of securities exercisable for, or convertible into, Common Stock outstanding on the date hereof) and such authorized
capital stock conforms to the description thereof set forth in the Registration Statement and the Prospectus. The description of
the securities of the Company in the Registration Statement and the Prospectus is complete and accurate in all material respects.
As of the date referred to therein, and except as otherwise disclosed in the Incorporated Documents, the Company does not have
outstanding any options to purchase, or any rights or warrants to subscribe for, or any securities or obligations convertible into,
or exchangeable for, or any contracts or commitments to issue or sell, any shares of capital stock or other securities.


 


(k)              
Authorization; Enforceability. The Company has full legal right, power and authority to enter into this Agreement
and perform the transactions contemplated hereby. This Agreement has been duly authorized, executed and delivered by the Company
and is a legal, valid and binding agreement of the Company enforceable in accordance with its terms, except (i) to the extent
that enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’
rights generally and by general equitable principles and (ii) the indemnification and contribution provisions of Section 10
hereof may be limited by federal or state securities laws and public policy considered in respect thereof.


 


(l)                
Authorization of Placement Shares. The Placement Shares, when issued and delivered pursuant to the terms approved
by the board of directors of the Company or a duly authorized committee thereof, against payment therefor as provided herein, will
be duly and validly authorized and issued and fully paid and non-assessable, free and clear of any pledge, lien, encumbrance, security
interest or other claim, including any statutory or contractual preemptive rights, resale rights, rights of first refusal or other
similar rights, and will be registered pursuant to Section 12 of the Exchange Act. The Placement Shares, when issued, will
conform in all material respects to the description thereof set forth in or incorporated into the Prospectus.


 


(m)             No Consents
Required. No consent, approval, authorization, order, registration or qualification of or with any court or
arbitrator or governmental or regulatory authority is required for the execution, delivery and performance by the Company of
this Agreement, the issuance and sale by the Company of the Placement Shares, except for such consents, approvals,
authorizations, orders and registrations or qualifications as may be required under applicable state securities laws or by
the by-laws and rules of the Financial Industry Regulatory Authority (“FINRA”) or the Exchange in
connection with the sale of the Placement Shares by the Agent.


 






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(n)              
No Preferential Rights. (i) No person, as such term is defined in Rule 1-02 of Regulation S-X
promulgated under the Securities Act (each, a “Person”), has the right, contractual or otherwise, to cause the
Company to issue or sell to such Person any Common Stock or shares of any other capital stock or other securities of the Company,
(ii) no Person has any preemptive rights, resale rights, rights of first refusal, or any other rights (whether pursuant to
a “poison pill” provision or otherwise) to purchase any Common Stock or shares of any other capital stock or other
securities of the Company, (iii) no Person has the right to act as an underwriter or as a financial advisor to the Company
in connection with the offer and sale of Common Stock, and (iv) no Person has the right, contractual or otherwise, to require
the Company to register under the Securities Act any Common Stock or shares of any other capital stock or other securities of the
Company, or to include any such shares or other securities in the Registration Statement or the offering contemplated thereby,
whether as a result of the filing or effectiveness of the Registration Statement or the sale of the Placement Shares as contemplated
thereby or otherwise.


 


(o)              
Independent Public Accountant. B F Borgers CPA PC (the “Accountant”), whose report on the
financial statements of the Company is filed with the Commission as part of the Company’s most recent Annual Report on Form
10-K filed with the Commission and incorporated into the Registration Statement and the Prospectus, are and, during the periods
covered by their report, were an independent registered public accounting firm with respect to the Company within the meaning of
the Securities Act and the Public Company Accounting Oversight Board (United States). To the Company’s knowledge, the Accountant
is not in violation of the auditor independence requirements of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”)
with respect to the Company.


 


(p)              
Enforceability of Agreements. All agreements between the Company and third parties expressly referenced in
the Prospectus are legal, valid and binding obligations of the Company enforceable in accordance with their respective terms, except
to the extent that (i) enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors’ rights generally and by general equitable principles and (ii) the indemnification provisions of
certain agreements may be limited be federal or state securities laws or public policy considerations in respect thereof, and except
for any unenforceability that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.


 


(q)               No Litigation.
Except as otherwise disclosed in the Incorporated Documents, there are no legal, governmental or regulatory actions, suits or
proceedings pending, nor, to the Company’s knowledge, any legal, governmental or regulatory investigations, to which
the Company is a party or to which any property of the Company is the subject that, individually or in the aggregate, if
determined adversely to the Company would have a Material Adverse Effect or materially and adversely affect the ability of
the Company to perform its obligations under this Agreement; to the Company’s knowledge, no such actions, suits or
proceedings are threatened or contemplated by any governmental or regulatory authority or threatened by others; and
(i) there are no current or pending legal, governmental or regulatory investigations, actions, suits or proceedings
that are required under the Securities Act to be described in the Prospectus that are not so described in the Prospectus or
the other Incorporated Documents; and (ii) there are no contracts or other documents that are required under the
Securities Act to be filed as exhibits to the Registration Statement that are not so filed.


 






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(r)               
Licenses and Permits. The Company possesses or has obtained, all licenses, certificates, consents, orders,
approvals, permits and other authorizations issued by, and have made all declarations and filings with, the appropriate federal,
state, local or foreign governmental or regulatory authorities that are necessary for the ownership or lease of their respective
properties or the conduct of their respective businesses as described in the Registration Statement and the Prospectus (the “Permits”),
except where the failure to possess, obtain or make the same would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect. The Company has not received written notice of any proceeding relating to revocation or modification
of any such Permit or has any reason to believe that such Permit will not be renewed in the ordinary course, except where the failure
to obtain any such renewal would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.


 


(s)               
No Material Defaults. The Company has not defaulted on any installment on indebtedness for borrowed money
or on any rental on one or more long-term leases, which defaults, individually or in the aggregate, have a Material Adverse Effect.
The Company has not filed a report pursuant to Section 13(a) or 15(d) of the Exchange Act since the filing of its last Annual Report
on Form 10-K, indicating that it (i) has failed to pay any dividend or sinking fund installment on preferred stock or (ii) has
defaulted on any installment on indebtedness for borrowed money or on any rental on one or more long-term leases, which defaults,
individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect


 


(t)                
S-3 Eligibility. At the time the Registration Statement was or will be declared effective, and at the time
the Company’s most recent Annual Report on Form 10-K was filed with the Commission, the Company met or will meet the then
applicable requirements for the use of Form S-3 under the Securities Act. As of the close of trading on the Exchange on February
25, 2021, the aggregate market value of the outstanding voting and non-voting common equity (as defined in Rule 405) of the Company
held by persons other than affiliates of the Company (pursuant to Rule 144 of the Securities Act, those that directly, or indirectly
through one or more intermediaries, control, or are controlled by, or are under common control with, the Company) (the “Non-Affiliate
Shares”), was approximately $1,138,440,000 (calculated by multiplying (x) the price at which the common equity of the Company
was last sold on the Exchange on February 25, 2021 times (y) the number of Non-Affiliate Shares). The Company is not a shell company
(as defined in Rule 405 under the Securities Act) and has not been a shell company for at least 12 calendar months previously and
if it has been a shell company at any time previously, has filed current Form 10 information (as defined in General Instruction
I.B.6 of Form S-3) with the Commission at least 12 calendar months previously reflecting its status as an entity that is not a
shell company.


 






    	 	10	 



     


    

 


(u)              Certain Market Activities. Neither the Company nor, to the Company’s knowledge, any of its directors,
officers or controlling persons has taken, directly or indirectly, any action designed, or that has constituted or would reasonably
be expected to cause or result in, under the Exchange Act or otherwise, the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Placement Shares.


 


(v)              Broker/Dealer Relationships. Except for Delaware Board of Trade Holdings, Inc. and its affiliates, neither
the Company nor any related entities (i) is required to register as a “broker” or “dealer” in accordance
with the provisions of the Exchange Act or (ii) directly or indirectly through one or more intermediaries, controls or is
a “person associated with a member” or “associated person of a member” (within the meaning set forth in
the FINRA Manual).


 


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


 


(x)              Taxes. The Company has filed all federal, state, local and foreign tax returns which have been required to
be filed and paid all taxes shown thereon through the date hereof, to the extent that such taxes have become due and are not being
contested in good faith. Except as otherwise disclosed in or contemplated by the Registration Statement or the Prospectus, no tax
deficiency has been determined adversely to the Company which has had, or would reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect. The Company has no knowledge of any federal, state or other governmental tax deficiency,
penalty or assessment which has been or might be asserted or threatened against it which reasonably would be expected to have a
Material Adverse Effect.


 


(y)              
Title to Real and Personal Property. The Company has good and valid title in fee simple to all items of real
property and good and valid title to all personal property described in the Registration Statement or Prospectus as being owned
by it that are material to the business of the Company, in each case free and clear of all liens, encumbrances and claims, except
those that (i) do not materially interfere with the use made and proposed to be made of such property by the Company or (ii) would
not reasonably expected, individually or in the aggregate, to have a Material Adverse Effect. Any real property described in the
Registration Statement or Prospectus as being leased by the Company is held by it under valid, existing and enforceable leases,
except those that (A) do not materially interfere with the use made or proposed to be made of such property by the Company
or (B) would not be reasonably expected to have a Material Adverse Effect.


 


(z)               Intellectual
Property. The Company owns or possesses adequate enforceable rights to use all patents, patent applications, trademarks
(both registered and unregistered), service marks, trade names, trademark registrations, service mark registrations,
copyrights, licenses and know-how (including trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures) (collectively, the “Intellectual Property”), necessary
for the conduct of its business as conducted as of the date hereof, except to the extent that the failure to own or possess
adequate rights to use such Intellectual Property would not, individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect; the Company has not received any written notice of any claim of infringement or conflict which
asserted Intellectual Property rights of others, which infringement or conflict, if the subject of an unfavorable decision,
would result in a Material Adverse Effect; there are no pending, or to the Company’s knowledge, threatened judicial
proceedings or interference proceedings against the Company challenging the Company’s rights in or to or the validity
of the scope of any of the Company’s patents, patent applications or proprietary information.


 






    	 	11	 



     


    

 


(aa)           
Environmental Laws. Except as otherwise publicly disclosed, the Company (i) is in compliance with any
and all applicable federal, state, local and foreign laws, rules, regulations, decisions and orders relating to the protection
of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (collectively,
 “Environmental Laws”); (ii) has received and is in compliance with all permits, licenses or other approvals
required of it under applicable Environmental Laws to conduct its businesses as described in the Registration Statement and the
Prospectus; and (iii) has not received notice of any actual or potential liability for the investigation or remediation of
any disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants, except, in the case of any of clauses
(i), (ii) or (iii) above, for any such failure to comply or failure to receive required permits, licenses, other approvals
or liability as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.


 


(bb)          
Disclosure Controls. The Company maintains systems of internal controls designed to provide reasonable assurance
that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions
are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability;
(iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the
recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken
with respect to any differences. The Company is not aware of any material weaknesses in its internal control over financial reporting
(other than as set forth in the Prospectus). Since the date of the latest audited financial statements of the Company included
in the Prospectus, there has been no change in the Company’s internal control over financial reporting that has materially
affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting (other than
as set forth in the Prospectus). The Company has established disclosure controls and procedures (as defined in Exchange Act Rules
13a-15 and 15d-15) for the Company and designed such disclosure controls and procedures to ensure that material information relating
to the Company is made known to the certifying officers by others within those entities, particularly during the period in which
the Company’s Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may be, is being prepared. The Company’s
certifying officers have evaluated the effectiveness of the Company’s controls and procedures as of a date within 90 days
prior to the filing date of the Form 10-K for the fiscal year most recently ended (such date, the “Evaluation Date”).
The Company presented in its Form 10-K for the fiscal year most recently ended the conclusions of the certifying officers about
the effectiveness of the disclosure controls and procedures based on their evaluations as of the Evaluation Date. Since the Evaluation
Date, there have been no significant changes in the Company’s internal controls (as such term is defined in Item 307(b)
of Regulation S-K under the Securities Act) or, to the Company’s knowledge, in other factors that could significantly affect
the Company’s internal controls. To the knowledge of the Company, the Company’s “internal controls over financial
reporting” and “disclosure controls and procedures” are effective.


 






    	 	12	 



     


    

 





(cc)           
Sarbanes-Oxley. The Company is not aware of any failure on the part of the Company or any of the Company’s
directors or officers, in their capacities as such, to comply with any applicable provisions of the Sarbanes-Oxley Act and the
applicable rules and regulations promulgated thereunder in all material respects. Each of the principal executive officer and
the principal financial officer of the Company (or each former principal executive officer of the Company and each former principal
financial officer of the Company as applicable) has made all certifications required by Sections 302 and 906 of the Sarbanes-Oxley
Act with respect to all reports, schedules, forms, statements and other documents required to be filed by it or furnished by it
to the Commission during the past 12 months. For purposes of the preceding sentence, “principal executive officer”
and “principal financial officer” shall have the meanings given to such terms in the Sarbanes-Oxley Act.


 


(dd)          
Finder’s Fees. The Company has not incurred any liability for any finder’s fees, brokerage commissions
or similar payments in connection with the transactions herein contemplated, except as may otherwise exist with respect to Agent
pursuant to this Agreement.


 


(ee)           
Labor Disputes. No labor disturbance by or dispute with employees of the Company exists or, to the knowledge
of the Company, is threatened which would be reasonably likely to have a Material Adverse Effect.


 


(ff)             
Investment Company Act. The Company is not or after giving effect to the offering and sale of the Placement
Shares, will not be an “investment company” or an entity “controlled” by an “investment company,”
as such terms are defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”).


 


(gg)          
Operations. The operations of the Company are and have been conducted at all times in compliance with applicable
financial record keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended,
the money laundering statutes of all jurisdictions to which the Company is subject, the rules and regulations thereunder and any
related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively,
the “Money Laundering Laws”), except as would not have a Material Adverse Effect; and no action, suit or proceeding
by or before any court or governmental agency, authority or body or any arbitrator involving the Company with respect to the Money
Laundering Laws is pending or, to the knowledge of the Company, threatened.


 


(hh)          
Off-Balance Sheet Arrangements. There are no transactions, arrangements and other relationships between and/or
among the Company, and/or, to the knowledge of the Company, any of its affiliates and any unconsolidated entity, including, but
not limited to, any structural finance, special purpose or limited purpose entity (each, an “Off Balance Sheet Transaction”)
that could reasonably be expected to affect materially the Company’s liquidity or the availability of or requirements for
its capital resources, including those Off Balance Sheet Transactions described in the Commission’s Statement about Management’s
Discussion and Analysis of Financial Conditions and Results of Operations (Release Nos. 33-8056; 34-45321; FR-61), required to
be described in the Prospectus which have not been described as required.


 






    	 	13	 



     


    

 


(ii)              ERISA.
To the knowledge of the Company, each material employee benefit plan, within the meaning of Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended (“ERISA”), that is maintained, administered or
contributed to by the Company or any of its affiliates for employees or former employees of the Company has been maintained
in material compliance with its terms and the requirements of any applicable statutes, orders, rules and regulations,
including but not limited to ERISA and the Internal Revenue Code of 1986, as amended (the “Code”); no
prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred
which would result in a material liability to the Company with respect to any such plan excluding transactions effected
pursuant to a statutory or administrative exemption; and for each such plan that is subject to the funding rules of
Section 412 of the Code or Section 302 of ERISA, no “accumulated funding deficiency” as defined in
Section 412 of the Code has been incurred, whether or not waived, and the fair market value of the assets of each such
plan (excluding for these purposes accrued but unpaid contributions) exceeds the present value of all benefits accrued under
such plan determined using reasonable actuarial assumptions.


 


(jj)             
Forward Looking Statements. No forward-looking statement (within the meaning of Section 27A of the
Securities Act and Section 21E of the Exchange Act) (a “Forward Looking Statement”) contained in the Registration
Statement and the Prospectus has been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith.
The Forward Looking Statements incorporated by reference in the Registration Statement and the Prospectus from the Company’s
Annual Report on Form 10-K for the fiscal year most recently ended (i) are within the coverage of the safe harbor for forward
looking statements set forth in Section 27A of the Securities Act, Rule 175(b) under the Securities Act or Rule 3b-6 under
the Exchange Act, as applicable, (ii) were made by the Company with a reasonable basis and in good faith and reflect the Company’s
good faith commercially reasonable best estimate of the matters described therein, and (iii) have been prepared in accordance
with Item 10 of Regulation S-K under the Securities Act.


 


(kk)          
Agent Purchases. The Company acknowledges and agrees that Agent has informed the Company that the Agent may,
to the extent permitted under the Securities Act and the Exchange Act, purchase and sell Common Stock for its own account while
this Agreement is in effect, provided, that (i) no such purchase or sales shall take place while a Placement Notice is in
effect (except to the extent each Agent may engage in sales of Placement Shares purchased or deemed purchased from the Company
as a “riskless principal” or in a similar capacity) and (ii) the Company shall not be deemed to have authorized
or consented to any such purchases or sales by the Agent.


 


(ll)             
Margin Rules. Neither the issuance, sale and delivery of the Placement Shares nor the application of the proceeds
thereof by the Company as described in the Registration Statement and the Prospectus will violate Regulation T, U or X of the Board
of Governors of the Federal Reserve System or any other regulation of such Board of Governors.


 


(mm)     
    Insurance. The Company carries, or is covered by, insurance in such amounts and covering such risks as the
Company reasonably believes is adequate for the conduct of its business and as is customary for companies engaged in similar businesses
in similar industries.


 






    	 	14	 



     


    

 


(nn)          
No Improper Practices. (i) Neither the Company, nor to the Company’s knowledge, any of
its executive officers has, in the past five years, made any unlawful contributions to any candidate for any political office
(or failed fully to disclose any contribution in violation of law) or made any contribution or other payment to any official of,
or candidate for, any federal, state, municipal, or foreign office or other person charged with similar public or quasi-public
duty in violation of any law or of the character required to be disclosed in the Prospectus; (ii) no relationship, direct
or indirect, exists between or among the Company or, to the Company’s knowledge, any affiliate of the Company, on the one
hand, and the directors, officers and stockholders of the Company, that is required by the Securities Act to be described in the
Registration Statement and the Prospectus that is not so described; (iii) no relationship, direct or indirect, exists between
or among the Company, or any affiliate of the Company, on the one hand, and the directors, officers, stockholders or directors
of the Company that is required by the rules of FINRA to be described in the Registration Statement and the Prospectus that is
not so described; (iv) there are no material outstanding loans or advances or material guarantees of indebtedness by the
Company to or for the benefit of any of its officers or directors or any of the members of the families of any of them; (v) the
Company has not offered, or caused any placement agent to offer, Common Stock to any person with the intent to influence unlawfully
(A) a customer or supplier of the Company to alter the customer’s or supplier’s level or type of business with
the Company or (B) a trade journalist or publication to write or publish favorable information about the Company or any
of its products or services, and, (vi) neither the Company nor, to the Company’s knowledge, any employee or agent
of the Company has made any payment of funds of the Company or received or retained any funds in violation of any law, rule or
regulation (including, without limitation, the Foreign Corrupt Practices Act of 1977, which payment, receipt or retention of funds
is of a character required to be disclosed in the Registration Statement or the Prospectus).


 


(oo)          
Compliance with Applicable Laws. The Company has not been advised, and has no reason to believe, that it and
each of its subsidiaries are not conducting business in compliance with all applicable laws, rules and regulations of the jurisdictions
in which it is conducting business, except where failure to be so in compliance would not result in a Material Adverse Effect.


 


(pp)          
Status Under the Securities Act. The Company was not and is not an ineligible issuer as defined in Rule 405
under the Securities Act at the times specified in Rules 164 and 433 under the Securities Act in connection with the offering of
the Placement Shares.


 


(qq)          
No Misstatement or Omission in an Issuer Free Writing Prospectus. Each Issuer Free Writing Prospectus,
as of its issue date and as of each Applicable Time (as defined in Section 24 below), did not, does not and will not
include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement
or the Prospectus, including any incorporated document deemed to be a part thereof that has not been superseded or modified. The
foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity
with written information furnished to the Company by the Agent specifically for use therein.


 






    	 	15	 



     


    

 


(rr)              No Conflicts.
Neither the execution of this Agreement, nor the issuance, offering or sale of the Placement Shares, nor the consummation of
any of the transactions contemplated herein and therein, nor the compliance by the Company with the terms and provisions
hereof and thereof will conflict with, or will result in a breach of, any of the terms and provisions of, or has constituted
or will constitute a default under, or has resulted in or will result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company pursuant to the terms of any contract or other agreement to which the
Company may be bound or to which any of the property or assets of the Company is subject, except (i) such conflicts,
breaches or defaults as may have been waived and (ii) such conflicts, breaches and defaults that would not have a
Material Adverse Effect; nor will such action result (x) in any violation of the provisions of the organizational or
governing documents of the Company, or (y) in any material violation of the provisions of any statute or any order,
rule or regulation applicable to the Company or of any court or of any federal, state or other regulatory authority or other
government body having jurisdiction over the Company.


 


(ss)            
OFAC. Neither the Company or any director, officer, agent, employee, affiliate or representative of the Company
is a government, individual or entity (in this paragraph (ss), “Person”) that is, or is owned or controlled
by a Person that is, currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Department
of the Treasury (“OFAC”), the United Nations Security Council (“UNSC”), the European Union
(“EU”), Her Majesty’s Treasury (“HMT”), or other relevant sanctions authority (collectively,
 “Sanctions”), nor located, organized or resident in a country or territory that is the subject of Sanctions;
provided however, that for the purposes of this paragraph (ss), no person shall be an affiliate of the Company solely by reason
of owning less than a majority of any class of voting securities of the Company. The Company will not directly or indirectly use
the proceeds of the offering of the Securities hereunder, or lend, contribute or otherwise make available such proceeds to any
subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently
subject to any U.S. sanctions administered by OFAC. The Company represents and covenants that, except as detailed in the Prospectus,
for the past 5 years, the Company has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings
or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject
of Sanctions.


 


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


 


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


 






    	 	16	 



     


    

 


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


 


(a)               Registration
Statement Amendments. After the date of this Agreement and during any period in which a Prospectus relating to any
Placement Shares is required to be delivered by 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, 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 or for additional information, (ii) the Company will
prepare and file with the Commission any amendments or supplements to the Registration Statement or Prospectus that, in the
Company’s reasonable opinion, may be necessary or advisable in connection with the distribution of the Placement Shares
by the Agent (provided 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 unless a copy thereof has been submitted to Agent within a reasonable period of time
before the filing (provided, however, that 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 Agent shall have with respect to the failure to
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 promptly use its commercially reasonable
efforts to prevent the issuance of any stop order or to obtain its withdrawal if such a stop order should be issued. The Company
will advise the Agent promptly after it receives any request by the Commission for any amendments to the Registration Statement
or any amendment or supplements to the Prospectus or any Issuer Free Writing Prospectus or for additional information related to
the offering of the Placement Shares or for additional information related to the Registration Statement, the Prospectus or any
Issuer Free Writing Prospectus.


 






    	 	17	 



     


    

 


(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 best 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
the 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 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 interests 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 as 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 or file a general consent to service of process in any jurisdiction.


 


(e)              
Delivery of Registration Statement and Prospectus. The Company will furnish to the Agent and its counsel (at
the expense of the Company) copies of the Registration Statement, the Prospectus (including all documents incorporated by reference
therein) and all amendments and supplements to the Registration Statement or Prospectus that are filed with the Commission during
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 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)               
[Reserved]


 


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


 






    	 	18	 



     


    

 


(h)               Notice
of Other Sales. Without prior written notice to 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 Agent
hereunder and ending on the second (2nd) 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);
provided, however, that such restrictions will not be required in connection with the Company’s issuance or sale of (i)
Common Stock, restricted stock units, options to purchase Common Stock or Common Stock issuable upon the exercise of options,
pursuant to any employee or director 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, and (iii) Common Stock, or securities convertible into or exercisable for Common Stock, offered and
sold in a S transaction conducted in a manner so as not to be integrated with the offering of Common Stock hereby.


 


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


 


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


 


(k)              
Required Filings Relating to Placement of Placement Shares. The Company 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 filing under Rule 424(b), 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, 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.


 






    	 	19	 



     


    

 


(l)                
Representation Dates; Certificate. On the date of this Agreement and within five (5) trading days of
each time the Company:


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


 


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


 


(iii)           
     files a quarterly report 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(l) (the “Representation
Date Certificate”); provided however, if no Placement Notice is pending at such Representation Date, then before the
Company delivers a Placement Notice or the Agent sells any Placement Shares, the Company shall provide the Agent with a Representation
Date Certificate. The requirement to provide a Representation Date Certificate 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; provided, however, that such waiver shall not apply for any Representation Date on which the Company
files its annual report on Form 10-K. Notwithstanding the foregoing, 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 Representation Date
Certificate, then before the Company delivers the Placement Notice or the Agent sells any Placement Shares, the Company shall
provide the Agent with a Representation Date Certificate, dated the date of the Placement Notice.


 


(m)             Legal
Opinion. On the date of this Agreement, the Company shall cause to be furnished to the Agent a written opinion and
negative assurance letter of Venable LLP (“Company Counsel”), or other counsel satisfactory to the Agent,
in form and substance reasonably satisfactory to Agent and its counsel. Thereafter, within five (5) Trading Days of
each Representation Date with respect to which the Company is obligated to deliver a Representation Date Certificate 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 Agent and its counsel; provided however, if no placement notice is
pending at such Representation Date, then before the Company delivers a Placement Notice or the Agent sells any Placement
Shares, the Company shall provide the Agent with such negative assurance letter; provided, further, that in lieu of such
negative assurance letter 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 a prior negative assurance letter 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 negative assurance 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).


 






    	 	20	 



     


    

 


(n)              
Comfort Letter. (1) On the date of this Agreement and (2) 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 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);
provided however, if no placement notice is pending at such Representation Date, then before the Company delivers a Placement Notice
or the Agent sells any Placement Shares, the Company shall provide the Agent with the Comfort Letter; provided, further, that if
requested by the Agent, the Company shall cause a Comfort Letter to be furnished to the Agent within ten (10) Trading Days
of the date of occurrence of any material transaction or event, including the restatement of the Company’s financial statements.
The Comfort Letter from the Company’s independent accountants shall be in a form and substance satisfactory to the Agent,
(i) confirming that they are an independent public accounting firm within the meaning of the Securities Act and the Public
Company Accounting Oversight Board (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 might reasonably be expected to constitute, the stabilization or manipulation of the price
of any security of the Company to facilitate the sale or resale of Common Stock or (ii) sell, bid for, or purchase Common
Stock, 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
it will not 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, neither the Agent nor the Company (including its agents and representatives, other
than Agent in their capacity as such) will make, use, prepare, authorize, approve or refer to any written communication (as defined
in Rule 405 under the Securities Act), required to be filed with the Commission, that constitutes an offer to sell or solicitation
of an offer to buy Placement Shares hereunder.


 






    	 	21	 



     


    

 


(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 use commercially reasonable efforts to maintain such controls and other
procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act, and the
applicable regulations thereunder that are designed to ensure that information required to be disclosed by the Company in the
reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time
periods specified in the Commission’s rules and forms, including, without limitation, controls and procedures designed
to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange
Act is accumulated and communicated to the Company’s management, including its principal executive officer and
principal financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding
required disclosure and to ensure that material information relating to the Company is made known to it by others within the
Company, particularly during the period in which such periodic reports are being prepared.


 


8.                 
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,
in such number as the Agent shall deem necessary, (ii) the printing and delivery to the Agent of this Agreement and such other
documents as may be required in connection with the offering, purchase, sale, issuance or delivery of the Placement Shares, (iii) the
preparation, issuance and delivery of the certificates, if any, for the Placement Shares to the Agent, including any stock or other
transfer taxes and any capital duties, stamp duties or other duties or taxes payable upon the sale, issuance or delivery of the
Placement Shares to the Agent, (iv) the fees and disbursements of the counsel, accountants and other advisors to the Company,
(v) the reasonable out-of-pocket expenses of Agent, including fees and disbursements of counsel to the Agent up to $25,000
(which amount shall include all fees and disbursements of such counsel described in clause (ix) below) and quarterly disbursements
of counsel to the Agent up to $5,000 per calendar quarter, (vi) the printing and delivery to the Agent of copies of any Permitted
Issuer Free Writing Prospectus (defined below) and the Prospectus and any amendments or supplements thereto in such number as the
Agent shall deem necessary, (vii) the preparation, printing and delivery to the Agent of copies of the blue sky survey and
any Canadian “wrapper” and any supplements thereto, in such number as the Agent shall deem necessary, (viii) the
fees and expenses of the transfer agent and registrar for the Common Stock, (ix) the fees and expenses incident to any review
by FINRA of the terms of the sale of the Placement Shares, including fees and expenses of counsel to the Agent, and (x) the
fees and expenses incurred in connection with the listing of the Placement Shares on the Exchange.


 






    	 	22	 



     


    

 


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


 


(a)              
Registration Statement Effective. The Registration Statement shall have become effective and shall be available
for the sale of all Placement Shares contemplated to be 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 the initiation of
any proceedings for that purpose; (iii) receipt by the Company of any notification with respect to the suspension of the qualification
or exemption from qualification of any of the Placement Shares for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose; or (iv) the occurrence of any event that makes any material statement made in the Registration
Statement or the Prospectus or any material document incorporated or deemed to be incorporated therein by reference untrue in any
material respect or that requires the making of any changes in the Registration Statement, the Prospectus or documents so that,
in the case of the Registration Statement, it will not contain 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, 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. 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 opinion is material and is required to be stated
therein or is necessary to make the statements therein not misleading.


 


(d)              
Material Changes. Except as contemplated in the Prospectus, or disclosed in the Company’s reports filed
with the Commission, there shall not have been any material adverse change, on a consolidated basis, in the authorized capital
stock of the Company or any Material Adverse Effect, or any development that could reasonably be expected to 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 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.


 






    	 	23	 



     


    

 


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


 


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


 


(h)              
Secretary’s Certificate. On the date of this Agreement, the Agent shall have received a certificate,
signed on behalf of the Company by its corporate Secretary, in form and substance 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(l),
the Company shall have furnished to the Agent such appropriate further information, certificates and documents as the Agent may
reasonably request. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof.
The Company will furnish the Agent with such conformed copies of such opinions, certificates, letters and other documents as the
Agent shall reasonably request.


 


(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 quotation on the Exchange,
subject only to notice of issuance, or the Company shall have filed an application for listing quotation 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 12(a).


 






    	 	24	 



     


    

 


10.             
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 (except to the extent that such untrue statement, misstatement
or omission by the Company is based on information provided to the Company by the Agent in writing);


 


(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 10(d) below) any such settlement is effected with the written
consent of the Agent, which consent shall not unreasonably be delayed or withheld; and


 


(iii)           
against any and all expense whatsoever, as incurred (including the 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)              
Agent Indemnification. Agent agrees to indemnify and hold harmless the Company and its directors and each
officer of the Company who signed the Registration Statement, and each person, if any, who (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 10(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 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.


 






    	 	25	 



     


    

 


(c)               Procedure.
Any party that proposes to assert the right to be indemnified under this Section 10 will, promptly after receipt of
notice of commencement of any action against such party in respect of which a claim is to be made against an indemnifying
party or parties under this Section 10, notify each such indemnifying party of the commencement of such action,
enclosing a copy of all papers served, but the omission so to notify such indemnifying party will not relieve the
indemnifying party from (i) any liability that it might have to any indemnified party otherwise than under this
Section 10 and (ii) any liability that it may have to any indemnified party under the foregoing provision of this
Section 10 unless, and only to the extent that, such omission results in the forfeiture of substantive rights or
defenses by the indemnifying party. If any such action is brought against any indemnified party and it notifies the
indemnifying party of its commencement, the indemnifying party will be entitled to participate in and, to the extent that it
elects by delivering written notice to the indemnified party promptly after receiving notice of the commencement of the
action from the indemnified party, jointly with any other indemnifying party similarly notified, to assume the defense of the
action, with counsel reasonably satisfactory to the indemnified party, and after notice from the indemnifying party to the
indemnified party of its election to assume the defense, the indemnifying party will not be liable to the indemnified party
for any 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 written advice of counsel) that there
may be legal defenses available to it or other indemnified parties that are different from or in addition to those available
to the indemnifying party, (3) a conflict or potential conflict exists (based on written 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 fees, disbursements and other charges of counsel will be at
the expense of the indemnifying party or parties. It is understood that the indemnifying party or parties shall not, in
connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm admitted to practice in such jurisdiction at any one time for
all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the indemnifying
party promptly 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 10 (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.


 






    	 	26	 



     


    

 


(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 10 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, 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 10(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 10(d) shall be deemed to include, for the purpose of this Section 10(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 10(c) hereof. Notwithstanding the foregoing provisions of this Section 10(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 10(d), any person who controls a party to this Agreement within the meaning of the Securities 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 of the Company who signed the Registration Statement will have the same rights to contribution as the Company,
subject in each case to the provisions hereof. Any party entitled to contribution, promptly after receipt of notice of
commencement of any action against such party in respect of which a claim for contribution may be made under this
Section 10(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 10(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 10(c) hereof, no party will be liable for contribution with respect to any
action or claim settled without its written consent if such consent is required pursuant to Section 10(c) hereof.


 






    	 	27	 



     


    

 


11.             
Additional Covenants.


 


(a)              
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 the Agent 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.


 


(b)              
Representations and Agreements to Survive Delivery. The indemnity and contribution agreements contained in
Section 10 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, for a period of one
(1) year commencing on the date such representations and warranties are made.


 


12.             
Termination.


 


(a)               The
Agent may terminate this Agreement, by notice to the Company, as hereinafter specified at any time (1) if there has
been, since the time of execution of this Agreement or since the date as of which information is given in the Prospectus, any
Material Adverse Effect, or any development that is reasonably likely to have a Material Adverse Effect or, in the sole
judgment of the Agent, is material and adverse and makes it impractical or inadvisable to market the Placement Shares or to
enforce contracts for the sale of the Placement Shares, (2) if there has occurred any material adverse change in the
financial markets in the United States or the international financial markets, any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is such as to make it, in the judgment of the
Agent, impracticable or inadvisable to market the Placement Shares or to enforce contracts for the sale of the Placement
Shares, (3) if trading in the 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 8 (Expenses), Section 10 (Indemnification), Section 11 (Survival of
Representations), Section 17 (Governing Law; Consent to Jurisdiction) and Section 18 (Waiver of Jury Trial)
hereof shall remain in full force and effect notwithstanding such termination. If the Agent elects to terminate this
Agreement as provided in this Section 12(a), the Agent shall provide the required notice as specified in
Section 13 (Notices).


 






    	 	28	 



     


    

 


(b)              
The Company shall have the right, by giving five (5) days’ written notice as hereinafter specified, to terminate
this Agreement in its sole discretion at any time after the date of this Agreement. Any such termination shall be without liability
of any party to any other party except that the provisions of Section 8, Section 10, Section 11, Section 17
and Section 18 hereof shall remain in full force and effect notwithstanding such termination.


 


(c)              
The Agent shall have the right, by giving five (5) days’ written notice as hereinafter specified, to terminate
this Agreement in its sole discretion at any time after the date of this Agreement. Any such termination shall be without liability
of any party to any other party except that the provisions of Section 8, Section 10, Section 11, Section 17
and Section 18 hereof shall remain in full force and effect notwithstanding such termination.


 


(d)              
Unless earlier terminated pursuant to this Section 12, 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;
provided that the provisions of Section 8, Section 10, Section 11, Section 17 and Section 18 hereof shall
remain in full force and effect notwithstanding such termination.


 


(e)              
This Agreement shall remain in full force and effect unless terminated pursuant to Sections 12(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 8, Section 10, Section 11, Section 17 and Section 18 shall remain
in full force and effect.


 


(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.


 


(g)              
Subject to the additional limitations set forth in Section 8 of this Agreement, in the event of termination
of this Agreement prior to the sale of any Placement Shares, the Agent shall be entitled only to reimbursement of its out-of-pocket
expenses actually incurred.


 


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


 






    	 	29	 



     


    

 


Roth Capital Partners, LLC


888 San Clemente


Newport Beach, CA 92660


Fax No.: (949) 720-7215


Attention: Managing Director


 


and


 


Pryor Cashman LLP


7 Times Square


New York, NY 10036


Attn: M. Ali Panjwani, Esq.


E-mail: ali.panjwani@pryorcashman.com


 


and if to the Company, shall be delivered
to:


 


Ideanomics, Inc.


1441 Broadway, Suite 5116


New York, NY 10018


Attn: Tony Sklar


E-mail: tsklar@ideanomics.com


 


with a copy to:


 


Venable LLP


1270 Avenue of the Americas


New York, NY 10020


Attn: William N. Haddad, Esq.


E-mail: wnhaddad@venable.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 or by verifiable facsimile
transmission (with an original to follow) on or before 4:30 p.m., New York City time, on a Business Day or, if such day is
not a Business Day, on the next succeeding Business Day, (ii) on the next Business Day after timely delivery to a nationally-recognized
overnight courier and (iii) on the Business Day actually received if deposited in the U.S. mail (certified or registered mail,
return receipt requested, postage prepaid).


 


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


 






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14.             
 Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the Company and
the Agent and their respective successors and the affiliates, controlling persons, officers and directors referred to in Section 10
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 party may assign its rights or obligations under this Agreement
without the prior written consent of the other party; provided, however, that the Agent may assign its rights and obligations hereunder
to an affiliate thereof without obtaining the Company’s consent.


 


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


 


16.             
Entire Agreement; Amendment; Severability. 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.


 


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


 


18.             
CONSENT TO JURISDICTION. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE 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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19.             
Use of Information. The Agent may not use 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.


 


20.             
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.


 


21.             
Effect of Headings. The section and Exhibit headings herein are for convenience only and shall not affect
the construction hereof.


 


22.             
Permitted Free Writing Prospectuses.


The Company represents, warrants and agrees
that, unless it obtains the prior consent of the Agent, 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.


 


23.             
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 the Agent’s counsel confidential to the extent not otherwise publicly-available.


 


24.             
Definitions.


 


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


 


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


 


“Business
Day” shall mean any day on which the Exchange and commercial banks in the City of New York are open for business.


 


“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.


 






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


 


“Trading Day”
means any day on which shares of Common Stock are purchased and sold on the Exchange.


 


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.


 






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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,	 	 
	 	 	 
	 	IDEANOMICS, INC.
	 	 	 
	 	By:	/s/ Alf Poor
	 	Name: 	Alf Poor
	 	Title:	Chief Financial Officer
	 	 	 
	 	ACCEPTED as of the date first-above written:
	 	 	 
	 	ROTH CAPITAL PARTNERS, LLC
	 	 	 
	 	By:	/s/ Bob Stephenson
	 	Name:	Bob Stephenson
	 	Title:	Managing Director



 



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