Exhibit 10.1


 


Cohen &
CoMPANY inc.

EQUITY DISTRIBUTION AGREEMENT


 


December 1, 2020


 


NORTHLAND CAPITAL MARKETS1





150 South Fifth Street, Suite 3300





Minneapolis, Minnesota 55402





Ladies and Gentlemen:


 


Cohen &
Company Inc., a Maryland corporation (collectively with its subsidiaries and affiliates, including, without limitation, all entities
disclosed or described in the Registration Statement (as defined below) as being subsidiaries or affiliates of Cohen &
Co. Inc., the “Company”), proposes to issue and sell through Northland Capital Markets, as sales agent (the
 “Manager”), on the terms set forth in this Equity Distribution Agreement (this “Agreement”),
shares of its common stock, par value $0.01 per share (“Common Stock”), having an aggregate offering price
of up to $75,000,000 (the “Shares”). Notwithstanding anything to the contrary contained herein, the parties
hereto agree that compliance with the limitations set forth herein regarding the amount of Shares to be issued and sold under
this Agreement, including any limitations on the amount of securities sold by the Company during any period under the Securities
Act and the rules and regulations promulgated thereunder, including rules that prohibit the Company from selling
securities in a public primary offering with a value exceeding more than one-third of its public float in
any 12-month period so long as its public float remains below $75.0 million, shall be the sole responsibility of the Company,
and the Manager shall have no obligation in connection with such compliance.


 


The
Company has filed with the Securities and Exchange Commission (the “Commission”) a registration statement on
Form S-3 (File No. 333-249641), including a prospectus, relating to the securities (the “Shelf Securities”),
including the Shares, to be issued from time to time by the Company. The registration statement as of its most recent effective
date, including the information (if any) deemed to be part of the registration statement at the time of effectiveness pursuant
to Rule 430A or Rule 430B under the Securities Act of 1933, as amended, and the rules and regulations of
the Commission promulgated thereunder (the “Securities Act”), together with any additional registration statement
on Form S-3 filed pursuant to Rule 462(b) under the Securities Act, is hereinafter referred to as the “Registration
Statement”, and the related prospectus covering the Shelf Securities and filed as part of the Registration Statement,
together with any amendments or supplements thereto as of the most recent effective date of the Registration Statement, is hereinafter
referred to as the “Basic Prospectus”. “Prospectus Supplement” means the final prospectus
supplement, relating to the Shares, filed by the Company with the Commission pursuant to Rule 424(b) under the Securities
Act on or before the second business day after the date hereof, in the form furnished by the Company to the Manager in connection
with the offering of the Shares. Except where the context otherwise requires, “Prospectus” means the Basic
Prospectus, as supplemented by the Prospectus Supplement and the most recent Interim Prospectus Supplement (as defined in Section 6(c) below),
if any. For purposes of this Agreement, “free writing prospectus” has the meaning set forth in Rule 405
under the Securities Act. “Permitted Free Writing Prospectuses” means the documents listed on Schedule I hereto
or otherwise approved in writing by the Manager in accordance with Section 6(b), and “broadly available road show”
means a “bona fide electronic road show” as defined in Rule 433(h)(5) under the Securities Act that has
been made available without restriction to any person. As used herein, the terms “Registration Statement”, “Basic
Prospectus”, “Prospectus Supplement”, “Interim Prospectus Supplement” and “Prospectus”
shall include the documents, if any, incorporated by reference therein. The terms “supplement”, “amendment”
and “amend” as used herein with respect to the Registration Statement, the Basic Prospectus, the Prospectus
Supplement, any Interim Prospectus Supplement or the Prospectus shall include all documents subsequently filed by the Company
with the Commission pursuant to the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission
promulgated thereunder (the “Exchange Act”), that are deemed to be incorporated by reference therein (the “Incorporated
Documents”). All references in this Agreement to the Registration Statement, the Basic Prospectus, the Prospectus Supplement,
any Interim Prospectus Supplement, the Prospectus or any amendments or supplements to any of the foregoing, shall include any
copy thereof filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System (“EDGAR”).


 





 






1 Northland Capital Markets is the trade name for
certain capital markets and investment banking activities of Northland Securities, Inc., member FINRA/SIPC.


 






    	 	 	 



     


    







 


1.            Representations
and Warranties. The Company represents and warrants to and agrees with the Manager that:


 


(a)            Registration
Statement. The Company is eligible to use Form S-3 under the Securities Act. The Registration Statement has become effective.
No post-effective amendment to the Registration Statement has been filed; no stop order suspending the effectiveness of the Registration
Statement has been issued under the Securities Act and no proceedings for that purpose or pursuant to Section 8A of the Securities
Act have been instituted or are pending or, to the knowledge of the Company, are contemplated by the Commission, and any request
on the part of the Commission for additional information has been complied with.


 


(b)            Compliance
with Registration Requirements. (i) (A) At the respective times the Registration Statement and each amendment
thereto became effective, (B) at each deemed effective date with respect to the Manager pursuant to Rule 430B(f)(2) under
the Securities Act (each, a “Deemed Effective Time”), (C) as of each time Shares are sold pursuant to
this Agreement (each, a “Time of Sale”), (D) at each Settlement Date (as defined in Section 4 below)
and (E) at all times during which a prospectus is required by the Securities Act to be delivered (whether physically or through
compliance with Rule 172 under the Securities Act or any similar rule) in connection with any sale of Shares (the “Delivery
Period”), the Registration Statement complied and will comply in all material respects with the requirements of the
Securities Act; (ii) the Basic Prospectus complied at the time it was filed with the Commission, complies as of the date
hereof and, as of each Time of Sale and at all times during the Delivery Period, will comply in all material respects with the
rules and regulations under the Securities Act; (iii) each of the Prospectus Supplement, any Interim Prospectus Supplement
and the Prospectus will comply, as of the date that such document is filed with the Commission, as of each Time of Sale, as of
each Settlement Date and at all times during the Delivery Period, in all material respects with the rules and regulations
under the Securities Act; and (iv) the Incorporated Documents, when they were filed with the Commission, conformed in all
material respects to the requirements of the Exchange Act, and any further Incorporated Documents so filed and incorporated by
reference, when they are filed with the Commission, will conform in all material respects to the requirements of the Exchange
Act.


 


(c)            General
Disclosure Package. (i) As of the date hereof, at the respective times that the Registration Statement and each
amendment thereto became effective and at each Deemed Effective Time, the Registration Statement 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; (ii) as of each Time of Sale, the Prospectus (as amended and supplemented at such Time
of Sale) and any Permitted Free Writing Prospectus then in use, considered together (collectively, the “General Disclosure
Package”), did not contain and will not contain any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(iii) as of its date, the Prospectus did not contain an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
and (iv) at any Settlement Date, the Prospectus (as amended and supplemented at such Settlement Date) did not and will not
contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading; provided, however, that this representation
and warranty shall not apply to any statement or omission made in reliance upon and in conformity with information furnished in
writing to the Company by the Manager expressly for use in the Prospectus or in the General Disclosure Package.


 



    	 	2	 



     


    




 


(d)            Issuer
Free Writing Prospectus. Any free writing prospectus that the Company was or is required to file pursuant to Rule 433(d) under
the Securities Act has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act and
the applicable rules and regulations thereunder. Each free writing prospectus that the Company has filed, or is required
to file, pursuant to Rule 433(d) under the Securities Act or that was prepared by or on behalf of or used or referred
to by the Company complies or will comply in all material respects with the requirements of the Securities Act and the applicable
rules and regulations thereunder. Each free writing prospectus, as of its issue date and at all subsequent times through
the completion of the public offer and sale of the Shares or until any earlier date that the Company notified or notifies the
Manager, did not, does not and will not include any material information that conflicted, conflicts or will conflict with the
information contained in the Registration Statement or the Prospectus; provided, however, that this representation
and warranty shall not apply to any statement or omission made in reliance upon and in conformity with information furnished in
writing to the Company by the Manager expressly for use in such free writing prospectus, the Registration Statement or the Prospectus.
Each broadly available road show, if any, when considered together with the General Disclosure Package, does not contain any untrue
statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that this representation and warranty shall not apply
to any statement or omission made in reliance upon and in conformity with information furnished in writing to the Company by the
Manager expressly for use in such broadly available road show and the General Disclosure Package. Except for the Permitted Free
Writing Prospectuses, if any, and electronic road shows, if any, furnished to and approved by the Manager in accordance with Section 6(b),
the Company has not prepared, used or referred to, and will not, prepare, use or refer to, any free writing prospectus.


 


(e)            Incorporated
Documents. The Incorporated Documents, when they were filed with the Commission, conformed in all material respects to the
requirements of the Exchange Act, and none of such documents contained any untrue statement of a material fact or omitted to state
a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
and any further documents so filed and incorporated by reference in the Registration Statement, the General Disclosure Package
or the Prospectus, when such documents are filed with the Commission, will conform in all material respects to the requirements
of the Exchange Act and will not contain any untrue statement of a material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances under which they were made, not misleading.


 


(f)            Financial
Statements. The financial statements of the Company filed with the Commission and included or incorporated by reference in
the Registration Statement, the General Disclosure Package or the Prospectus, present fairly in all material respects the financial
condition of the Company as of and at the dates indicated, and each of the statements of operations, cash flows and stockholders’
equity of the Company for the periods specified; such financial statements have been prepared in conformity with generally
accepted accounting principles in the United States of America (“GAAP”) applied on a consistent basis throughout
the periods involved except to the extent disclosed in the notes thereto. There are no financial statements (historical or pro
forma) that are required to be included or incorporated by reference in the Registration Statement, the General Disclosure Package
or the Prospectus that are not included or incorporated by reference as required. All non-GAAP financial measures (as defined
in Regulation G promulgated by the Commission pursuant to the Exchange Act) and ratios derived using non-GAAP financial measures
included or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus have been
presented in compliance with Item 10 of Regulation S-K. Except as disclosed in the General Disclosure Package or the Prospectus,
the Company is not party to any off-balance sheet transactions, arrangements, obligations (including contingent obligations) or
other persons that may have a material current or future effect on the Company’s financial condition, changes in financial
condition, results of operations, liquidity, capital expenditures, capital resources or significant components of revenues or
expenses. The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration
Statement, the General Disclosure Package or the Prospectus fairly presents the information called for in all material respects
and has been prepared in all material respects in accordance with the Commission’s rules and guidelines applicable
thereto.


 






    	 	3	 



     


    

  


(g)            No
Material Adverse Effect. Except as otherwise set forth in the Registration Statement, the General Disclosure Package or the
Prospectus, since the date of the latest audited financial statements included in the General Disclosure Package, there has been
no (i) material adverse change, or any development involving a prospective material adverse change, in or affecting the condition,
financial or otherwise, or in the assets, earnings, business, properties, management, results of operations or prospects of the
Company, whether or not arising in the ordinary course of business, as a result of the ongoing COVID-19 pandemic or the ability
of the Company to perform its obligations under this Agreement (a “Material Adverse Effect”); (ii) transaction
which is material to the Company; (iii) liability or obligation, direct or contingent (including without limitation
any off-balance sheet obligations or any losses or interference with business from fire, explosion, flood, earthquakes,
accident or other calamity, whether or not covered by insurance, or from any strike, labor dispute or court or governmental action,
order or decree), incurred by the Company, which is material to the Company, individually or in the aggregate; (iv) change
in the capital stock of the Company (other than the issuance or retention of shares of Common Stock upon the exercise of stock
options or the vesting, exercise or settlement of other awards described as outstanding in, and the grant of options and awards
under other existing equity incentive plans described in, the Registration Statement, the General Disclosure Package or the Prospectus);
(v) material change in the outstanding indebtedness of the Company; (vi) dividend or distribution of any kind declared,
paid or made on the Common Stock; or (vii) alteration in the Company’s method of accounting.


 


(h)            Organization
and Good Standing. Each of the Company and the Subsidiaries (as defined below) has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the respective jurisdiction of its incorporation or organization with power
and authority (corporate and other) to own, lease and operate its properties and conduct its business as described in the Registration
Statement, the General Disclosure Package and the Prospectus and currently conducted and to enter into and perform its obligations
under this Agreement, and has been duly qualified as a foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such
qualification, except where the failure so to qualify or be in good standing would not have a Material Adverse Effect.


 


(i)            Capitalization.
The Company has an authorized capitalization as set forth in the Registration Statement, the General Disclosure Package and the
Prospectus, and all of the issued and outstanding shares of Common Stock of the Company have been duly and validly authorized
and issued, including in compliance with all federal and state securities laws, are fully paid and non-assessable and conform
to the descriptions thereof contained in the Registration Statement, the General Disclosure Package and the Prospectus; and none
of the issued and outstanding shares of capital stock of the Company are subject to any preemptive or similar rights.


 






    	 	4	 



     


    










 


(j)            The
Shares. The Shares have been, and as of each Settlement Date will be, duly authorized, and when issued and delivered
in accordance with the terms of this Agreement against payment therefor in accordance with the terms hereof, will be validly issued,
including in compliance with all federal and state securities laws, fully paid and non-assessable, will conform to the descriptions
thereof contained in the Registration Statement, the General Disclosure Package and the Prospectus and the issuance of such Shares
will not be subject to any preemptive or similar rights.


 


(k)            Stock
Exchange Listing. The Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange Act and
is listed on the NYSE American Stock Exchange (the “Exchange”), and the Company has taken no action designed
to, or likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the
Common Stock from the Exchange nor has the Company received any notification that the Commission or the Exchange is contemplating
terminating such registration or listing. To the Company’s knowledge, it has complied in all material respects with the
applicable requirements of the Exchange for maintenance of inclusion of the Common Stock on the Exchange.


 


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


 


(m)            No
Preemptive Rights. Except as described in the Registration Statement, the General Disclosure Package or the Prospectus, there
are no options, warrants, preemptive rights, rights of first refusal or other rights to subscribe for or to purchase any equity
securities of the Company.


 


(n)            Descriptions
and Exhibits. There are no statutes, regulations, documents or contracts of a character required to be described in the Registration
Statement, the General Disclosure Package or the Prospectus or to be filed as an exhibit to the Registration Statement which are
not described or filed as required.


 


(o)            Non-Contravention.
The issue and sale of the Shares to be sold by the Company hereunder, the execution of this Agreement by the Company and the compliance
by the Company with all of the provisions of this Agreement and the consummation of the transactions herein contemplated (i) will
not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or any other evidence of indebtedness 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 are subject;
(ii) will not result in any violation of the provisions of the certificate or articles of incorporation or by-laws (or other
organization documents) of the Company; and (iii) will not result in any violation of any statute or any order, decree, rule or
regulation of any court or governmental or administrative agency or body having jurisdiction over the Company or any of its properties,
except, in the case of clauses (i) and (iii) above, where such breaches, violations or defaults would not, individually
or in the aggregate, have a Material Adverse Effect.


 


(p)            No
Violations. Neither the Company nor its Subsidiaries is (i) in violation of its articles or certificate of incorporation,
by-laws (or other organizational or charter documents), (ii) in violation of any law, ordinance, administrative or governmental
rule or regulation applicable to the Company or the Subsidiary, (iii) in violation of any decree of any court or governmental
agency or body having jurisdiction over the Company or the Subsidiary, or (iv) in default in the performance of any obligation,
agreement or condition contained in any bond, debenture, note or any other evidence of indebtedness or in any agreement, indenture,
lease or other instrument to which the Company or a Subsidiary is a party or by which it or any of its properties may be bound,
except, in the case of clauses (ii), (iii) and (iv), where any such violation or default, individually or in the aggregate,
would not have a Material Adverse Effect.


 






    	 	5	 



     


    




 


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


 


(r)            Other
Underwriting Agreements. Except for this Agreement, the Company is not a party to any agreement with an agent or underwriter
for any other “at the market” or continuous equity transaction.


 


(s)            No
Consents Required. No consent, approval, authorization, order, license, 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 of the Shares and the consummation of the transactions contemplated by this Agreement, except
for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, orders and registrations
or qualifications as may be required under applicable state securities laws in connection with the purchase and distribution of
the Shares by the Manager.


 


(t)            Legal
Proceedings. Other than as set forth in the Registration Statement, the General Disclosure Package or the Prospectus, there
are no actions, suits, proceedings, inquiries or investigations brought by or before any legal or governmental authority now pending
to which the Company is a party or of which any property of the Company is the subject which, if determined adversely to the Company,
individually or in the aggregate, would have or may reasonably be expected to have a Material Adverse Effect, or would prevent
or impair the consummation of the transactions contemplated by this Agreement, or which are required to be described in the Registration
Statement, the General Disclosure Package or the Prospectus; and, to the best of the Company’s knowledge, no such actions,
suits, proceedings, inquiries or investigations are threatened or contemplated by governmental authorities or others.


 


(u)            Independent
Accountant. Grant Thornton LLP (“Company Auditor”), who has certified certain financial statements
of the Company, was, at all applicable times, an independent registered public accounting firm with respect to the Company within
the applicable rules and regulations adopted by the Commission and the Public Company Accounting Oversight Board and as required
by the Securities Act.


 


(v)            Title
to Real and Personal Property. Except (a) as otherwise set forth in the Registration Statement, the General Disclosure
Package or the Prospectus, (b) for liens, security interests and similar encumbrances under any liens, security interests
or similar encumbrances made pursuant to credit facilities or indentures of the Company or (c) as would not have a Material
Adverse Effect, individually or in the aggregate, the Company has good and marketable title to all of the real and personal properties
and assets reflected as owned in the financial statements referred to in Section 1(f) or elsewhere in the Registration
Statement, the General Disclosure Package or the Prospectus, in each case free and clear of any security interests, mortgages,
liens, pledges, charges, encumbrances, equities, adverse claims and other defects or restrictions. No real property owned, leased,
licensed, or used by the Company lies in an area which is, or will be, subject to restrictions which would prohibit, and no statements
of facts relating to the actions or inaction of another person or entity or his, her or its ownership, leasing, licensing, or
use of any real or personal property exists or will exist which would prevent, the continued effective ownership, leasing, licensing,
exploration, development or production or use of such real property in the business of the Company as presently conducted or as
the Registration Statement, the General Disclosure Package or the Prospectus indicates the Company contemplates conducting, except
as may be properly described in the Registration Statement, the General Disclosure Package or the Prospectus or such as in the
aggregate do not now cause and will not in the future cause a Material Adverse Effect. The real property, improvements,
equipment and personal property held under lease by the Company or of a Subsidiary are held under valid and enforceable leases,
with such exceptions as would not, individually or in the aggregate, have a Material Adverse Effect.


 






    	 	6	 



     


    




 


(w)            Title
to Intellectual Property. Except as otherwise disclosed in the Registration Statement, the General Disclosure Package,
or the Prospectus, the Company, including its Subsidiaries, own, or have obtained valid and enforceable licenses for, the inventions,
patent applications, patents, trademarks, trade names, service names, copyrights, trade secrets and other intellectual property
described in the Registration Statement, the General Disclosure Package, or the Prospectus as being owned or licensed by them
or which are necessary for the conduct of the Company’s and its Subsidiaries’ businesses as currently conducted or
as currently proposed to be conducted (collectively, “Intellectual Property”), except as would not have a Material
Adverse Effect on the Company and its Subsidiaries taken as a whole, and except as enforceability of any licenses may be limited
by bankruptcy and other similar laws affecting the rights of creditors generally and general principles of equity. To the Company’s
knowledge: (i) there are no third parties who have rights to any registered Intellectual Property, other than any co-owner
of any patent constituting Intellectual Property who is listed on the records of the U.S. Patent and Trademark Office and any
co-owner of any patent application constituting Intellectual Property who is named in such patent application; and (ii) there
is no infringement by third parties of any Intellectual Property. There is no pending or, to the Company’s knowledge, threatened
action, suit, proceeding or claim by others: (A) challenging the Company’s rights in or to any Intellectual Property,
and the Company is unaware of any facts which would form a reasonable basis for any such action, suit, proceeding or claim; (B) challenging
the validity, enforceability or scope of any Intellectual Property, and the Company is unaware of any facts that would form a
reasonable basis for any such action, suit, proceeding or claim; or (C) asserting that the Company or any of its Subsidiaries
infringes or otherwise violates, or would, upon the expansion or commercialization of any product or service described in the
Registration Statement, the General Disclosure Package, or the Prospectus as under development, infringe or violate, any patent,
trademark, trade name, service name, copyright, trade secret or other proprietary rights of others, and the Company is unaware
of any facts which would form a reasonable basis for any such action, suit, proceeding or claim. The Company and its subsidiaries
have complied with the terms of each agreement pursuant to which Intellectual Property has been licensed to the Company or any
Subsidiary, and all such agreements are in full force and effect. To the Company’s knowledge, there are no material defects
in any of the patents or patent applications included in the Intellectual Property. The Company and its Subsidiaries have taken
commercially reasonable steps to protect, maintain and safeguard their Intellectual Property, including the execution of nondisclosure
and confidentiality agreements. The Intellectual Property, including technology candidates or products, and/or their uses described
in the Registration Statement, the General Disclosure Package, or the Prospectus as under development by the Company or any Subsidiary
fall within the scope of the claims of one or more patents owned by, or exclusively licensed to, the Company or any Subsidiary.


 






    	 	7	 



     


    




 


(x)            No
Undisclosed Relationships. No relationship, direct or indirect, exists between or among the Company, on the one hand, and
the directors, officers, stockholders, customers or suppliers of the Company, on the other hand, that is required to be described,
incorporated by reference or included in the Registration Statement, the General Disclosure Package or the Prospectus and which
is not so described, incorporated or included.


 


(y)            Subsidiaries.
All of the direct and indirect significant subsidiaries of the Company that are required to be disclosed in the Company’s
periodic reports are set forth in the reports filed with the Commission pursuant to Section 13(a), 13(e), 14 or 15(d) of
the Exchange Act. The Company owns, directly or indirectly, all of the capital stock or other equity interests of each Subsidiary
free and clear of any Liens, and all of the issued and outstanding shares of capital stock of each Subsidiary are validly issued
and are fully paid, non-assessable and free of preemptive and similar rights to subscribe for or purchase securities. “Subsidiary”
means any material subsidiary of Cohen & Company Inc. and shall, where applicable, also include any direct or indirect
subsidiary of Cohen & Company Inc. formed or acquired after the date hereof.


 


(z)            Dividend
Restrictions. Except as disclosed in the Registration Statement, General Disclosure Package, or Prospectus, and subject to
the existence of legally available funds, no Subsidiary of the Company is currently prohibited or restricted, directly or indirectly,
from paying dividends to the Company, or from making any other distribution with respect to such Subsidiary’s equity securities
or from repaying to the Company or any other Subsidiary of the Company any amounts that may from time to time become due under
any loans or advances to such Subsidiary from the Company or from transferring any property or assets to the Company or to any
other Subsidiary.


 


(aa)     Investment
Company Act. The Company is not and, after giving effect to the offering and sale of the Shares as contemplated herein and
the application of the Net Proceeds (as defined in Section 3 below) therefrom as described in the General Disclosure Package
and the Prospectus, will not be required to register as an “investment company”, as such term is defined in the Investment
Company Act of 1940, as amended.


 


(bb)     Taxes.
All United States federal income tax returns of the Company required by law to be filed have been filed and all taxes shown by
such returns or otherwise assessed, which are due and payable, have been paid, except for such taxes, if any, as are being or
will be contested in good faith and as to which adequate reserves have been provided. The Company has filed all other tax returns
that are required to have been filed by it pursuant to applicable foreign, state, local or other law, except insofar as the failure
to file such returns, individually or in the aggregate, would not result in a Material Adverse Effect; and the Company has paid
all taxes due pursuant to such returns or pursuant to any assessment received by the Company except for such taxes, if any, as
are being or will be contested in good faith and as to which adequate reserves have been provided or insofar as the non-payment
of such taxes, individually or in the aggregate, would not result in a Material Adverse Effect.


 


(cc)     Licenses
and Permits. The Company possesses all permits, licenses, approvals, consents and other authorizations (collectively, “Permits”)
issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct the businesses now
operated by it; the Company is in compliance with the terms and conditions of all such Permits and all of the Permits are valid
and in full force and effect, except, in each case, where the failure so to possess or comply with or where the invalidity of
such Permits or the failure of such Permits to be in full force and effect, individually or in the aggregate, would not have a
Material Adverse Effect; and the Company has not received any notice of proceedings relating to the revocation or material modification
of any such Permits.


 






    	 	8	 



     


    




 


(dd)     No
Labor Disputes. No material labor dispute with the employees of the Company exists, or, to the knowledge of the Company, is
imminent or threatened. The Company is not aware of any existing or imminent labor disturbance by the employees of any of its
principal suppliers, manufacturers, customers or contractors, which, individually or in the aggregate, may reasonably be expected
to result in a Material Adverse Effect.


 


(ee)     Compliance
with and Liability under Environmental Laws. Except as described in the Registration Statement, the General Disclosure Package
or the Prospectus, there has been no storage, disposal, generation, manufacture, refinement, transportation, handling or treatment
of hazardous substances or hazardous wastes by the Company (or, to the knowledge of the Company, any of its predecessors in interest),
at, upon or from any of the property now or previously owned, leased or operated by the Company in violation of any applicable
law, ordinance, rule, regulation, order, judgment, decree or permit that would require the Company to undertake any remedial action
under any applicable law, ordinance, rule, regulation, order, judgment, decree or permit, except for any violation or remedial
action that would not, individually or in the aggregate with all such violations and remedial actions, cause a Material Adverse
Effect. Except for abandonment and similar costs incurred or to be incurred in the ordinary course of business of the Company,
there has been no material spill, discharge, leak, emission, injection, escape, dumping or release of any kind onto any property
now or previously owned, leased or operated by the Company or into the environment surrounding such property of any hazardous
substances or hazardous wastes due to or caused by the Company (or, to the knowledge of the Company, any of its predecessors in
interest), except for any such spill, discharge, leak, emission, injection, escape, dumping or release that would not, singularly
or in the aggregate with all such spills, discharges, leaks, emissions, injections, escapes, dumpings and releases, result in
a Material Adverse Effect; and the terms “hazardous substances,” and “hazardous wastes”
shall be construed broadly to include such terms and similar terms, all of which shall have the meanings specified in any applicable
local, state and federal laws or regulations with respect to environmental protection. Except as set forth in the Registration
Statement, the General Disclosure Package or the Prospectus, the Company has not been named as a “potentially responsible
party” under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended.


 


(ff)     Compliance
with ERISA. Each employee benefit plan, within the meaning of Section 3(3) of the Employee Retirement Income Security
Act of 1974, as amended (“ERISA”), (whether or not subject to ERISA) that is sponsored, maintained, administered,
contributed or required to be contributed to by the Company or any entity that would be treated as a single employer with any
of the foregoing pursuant to Section 414 of the Internal Revenue Code of 1986, as amended (the “Code”)
(each such plan, a “Plan”) has been maintained, administered and operated in compliance with its terms and
the requirements of any applicable statutes, orders, rules and regulations, including but not limited to ERISA and the Code,
except to the extent that failure to so comply, individually or in the aggregate, would not have a Material Adverse Effect. The
fair market value of the assets of each 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. No other event set forth in Section 4043(b) of
ERISA (excluding events with respect to which the 30-day notice requirement under Section 4043 of ERISA has been waived)
has occurred with respect to any Plan.No prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975
of the Code, has occurred with respect to any Plan, excluding transactions effected pursuant to a statutory or administrative
exemption that has resulted in or could reasonably be expected to have a Material Adverse Effect. The Company could not reasonably
be expected to have any liability (whether actual, contingent or otherwise) (i) with respect to any Plan subject to Section 412
of the Code or to Title IV of ERISA or (ii) with respect to any Plan or other contract, agreement, arrangement or policy
that provides for retiree or post-employment welfare benefits other than as required by Section 4980B of the Code or similar
state laws.


 






    	 	9	 



     


    




 


(gg)     Financial
Regulatory Matters. J.V.B. Financial Group, LLC is (i) duly registered with the Commission as a broker-dealer under the
Exchange Act, (ii) a member in good standing of the Financial Industry Regulatory Authority (“FINRA”),
(iii) not in arrears in regard to any assessment made upon it by the Securities Investor Protection Corporation, and (iv) has
received no notice from the Commission, FINRA, the Municipal Securities Rulemaking Board, the Commodities Future Trading Commission
or any other governmental or regulatory authority or securities exchange of any alleged rule violation or other circumstance
which could reasonably be expected to have a Material Adverse Effect. J.V.B. Financial Group, LLC. has received no notice from
the Federal Deposit Insurance Corporation, the office of the Comptroller of the Currency or the Board of Governors of the Federal
Reserve System of any alleged rule violation or other circumstance which could reasonably be expected to have a Material
Adverse Effect. Cohen & Company Financial Limited is in good standing with the Financial Conduct Authority, Cohen &
Company Financial (Europe) Limited is in good standing with the Central Bank of Ireland, and neither has received any notice from
such regulatory agency of any alleged rule violation or other circumstance which could reasonably be expected to have a Material
Adverse Effect.


 


(hh)     Disclosure
Controls. The Company has established and maintains disclosure controls and procedures (as defined in Rules 13a-15(e) and
15d-15(e) under the Exchange Act) which (i) are designed to ensure that material information relating to the Company
is made known to the Company’s principal executive officer and its principal financial officer by others within the Company,
particularly during the periods in which the periodic reports required under the Exchange Act are being prepared; (ii) have
been evaluated for effectiveness as of a date within 90 days prior to the earlier of the date that the Company filed its most
recent annual or quarterly report with the Commission and the date of the General Disclosure Package; and (iii) are designed
to be effective in all material respects to perform the functions for which they were established. Except as described in the
Registration Statement, the General Disclosure Package or the Prospectus, since the date of the latest audited financial statements
included in or incorporated by reference into the Registration Statement, the General Disclosure Package or the Prospectus, the
Company has not been advised of any (i) significant deficiencies or material weaknesses in the design or operation of its
disclosure controls and procedures or (ii) any fraud, whether or not material, that involves management or other employees
who have a significant role in the Company’s disclosure controls and procedures.


 


(ii)            Internal
Controls Over Financial Reporting. The Company maintains a system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with management’s general or specific authorizations;
(ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP as applied
in the United States and to maintain asset accountability; (iii) access to assets is permitted only in accordance with
management’s general or specific authorizations; (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 and (v) interactive
data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement, the General
Disclosure Package or the Prospectus fairly presents the information called for in all material respects and has been prepared
in all material respects in accordance with the Commission’s rules and guidelines applicable thereto. The Company’s
system of “internal control over financial reporting” (as defined in Rule 13a-15(f) of the Exchange Act)
complies with the requirements of the Exchange Act and has been designed by, or under the supervision of, its principal executive
and principal financial officers, or persons performing similar functions, to provide reasonable assurance regarding the reliability
of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. Except as described
in the Registration Statement, the General Disclosure Package or the Prospectus, since the date of the latest audited financial
statements included in or incorporated by reference into the Registration Statement, the General Disclosure Package or the Prospectus,
(a) the Company has not been advised of (1) any significant deficiencies in the design or operation of internal controls
over financial reporting that are reasonably likely to materially affect the ability of the Company to record, process, summarize
and report financial information or data, or any material weaknesses in internal controls over financial reporting and (2) any
fraud, whether or not material, that involves management or other employees who have a significant role in the internal controls
over financial reporting of the Company, and (b) since that date, there has been no change in the Company’s internal
controls over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s
internal controls over financial reporting.


 






    	 	10	 



     


    




 


(jj)     Data
Security. (i) The Company has complied and is presently in compliance with all internal and external privacy policies,
contractual obligations, industry standards, applicable laws, statutes, judgments, orders, rules and regulations of any court
or arbitrator or other governmental or regulatory authority and any other legal obligations, in each case, relating to the collection,
use, transfer, import, export, storage, protection, disposal and disclosure by the Company of personal, personally identifiable,
household, sensitive, confidential or regulated data (“Data Security Obligations”, and such data, “Data”);
(ii) the Company has not received any notification of or complaint regarding and is unaware of any other facts that, individually
or in the aggregate, would reasonably indicate non-compliance with any Data Security Obligation; and (iii) there is no action,
suit or proceeding by or before any court or governmental agency, authority or body pending or threatened alleging non-compliance
with any Data Security Obligation nor are there any incidents under internal review or investigations relating to the same.


 


(kk)     Data
Protection; No Breaches. The Company’s information technology assets and equipment, computers, systems, networks,
hardware, software, websites, applications, and databases are adequate for, and operate and perform in all material respects as
required in connection with, the operation of the business of the Company as currently conducted, free and clear of all material
bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants.The Company has taken all technical and organizational
measures necessary to protect the information technology systems and Data used in connection with the operation of the Company’s
business. Without limiting the foregoing, the Company has used reasonable efforts to establish and maintain, and has established,
maintained, implemented and complied with, reasonable information technology, information security, cyber security and data protection
controls, policies and procedures, including oversight, access controls, encryption, technological and physical safeguards and
business continuity/disaster recovery and security plans that are designed to protect against and prevent breach, destruction,
loss, unauthorized distribution, use, access, disablement, misappropriation or modification, or other compromise or misuse of
or relating to any information technology system or Data used in connection with the operation of the Company’s business
(“Breach”). There has been no such Breach, and the Company has not been notified of and has no knowledge of
any event or condition that would reasonably be expected to result in, any such Breach.


 


(ll)     Insurance.
The Company is insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as
are prudent and customary in the businesses in which the Company is engaged; the Company has not been refused any insurance coverage
sought or applied for; and the Company has no reason to believe that it will not be able to renew its existing insurance coverage
as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business
at a cost that would not have a Material Adverse Effect on the Company.


 






    	 	11	 



     


    




 


(mm)     No
Broker’s Fees. The Company is not a party to any contract, agreement or understanding with any person that would give
rise to a valid claim against the Company or the Manager for a brokerage commission, finder’s fee or like payment in connection
with the offering and sale of the Shares other than this Agreement.


 


(nn)     No
Registration Rights. Except as disclosed in the Registration Statement, the General Disclosure Package or the Prospectus and
as have been validly complied with or waived, there are no persons with registration rights or other similar rights to have any
securities of the Company registered pursuant to the Registration Statement or sold in the offering contemplated by this Agreement.


 


(oo)      No
Stabilization. The Company has not taken, directly or indirectly, any action designed to or that would be reasonably expected
to cause or result in stabilization or manipulation of the price of the Common Stock or any other “reference security”
(as defined in Rule 100 of Regulation M under the Exchange Act (“Regulation M”)) whether to facilitate
the sale or resale of the Shares or otherwise, and has taken no action which would directly or indirectly violate Regulation M.
The Company acknowledges that the Manager may engage in passive market making transactions in the Shares on the Exchange
in accordance with Regulation M.


 


(pp)     Forward-Looking
Statements. Each “forward-looking statement” (within the meaning of Section 27A of the Securities Act or
Section 21E of the Exchange Act) contained in the Registration Statement, the General Disclosure Package or the Prospectus
has been made or reaffirmed with a reasonable basis and in good faith.


 


(qq)     Statistical
and Market Data. The statistical and market and industry-related data included in the Registration Statement, the General
Disclosure Package and the Prospectus are based on or derived from sources which the Company believes to be reliable and accurate
or represent the Company’s good faith estimates that are made on the basis of data derived from such sources, and the Company
has obtained the written consent to the use of such data from sources to the extent required.


 


(rr)     Sarbanes-Oxley
Act. There is and has been no failure on the part of the Company or, to the knowledge of the Company after reasonable inquiry,
any of the Company’s directors or officers, in their capacities as such, to comply in all material respects with any provision
of the Sarbanes-Oxley Act of 2002, as amended, and the rules and regulations promulgated in connection therewith, including
Section 402 related to loans and Sections 302 and 906 related to certifications.


 


(ss)     Ineligible
Issuer. (i) At the earliest time after the filing of the Registration Statement that the Company or another offering
participant made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Shares and (ii) as of the Time of Sale
and on each such time this representation is repeated or deemed to be made (with such date being used as the determination date
for purposes of this clause (ii)), the Company was not and is not an Ineligible Issuer (as defined in Rule 405 under the
Securities Act), without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary
that the Company be considered an Ineligible Issuer.


 






    	 	12	 



     


    

 


(tt)     No
Unlawful Payments. Neither the Company nor any director, officer or employee of the Company nor, to the knowledge of the Company,
any agent, affiliate, representative or other person associated with or acting on behalf of the Company has (i) used any
corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity;
(ii) made or taken an act in furtherance of an offer, payment, promise to pay or authorization or approval of any unlawful
payment or benefit, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any foreign
or domestic government official or employee, including of any government-owned or controlled entity or of a public international
organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or
party official or candidate for political office; (iii) violated or is in violation of any provision of the Foreign
Corrupt Practices Act of 1977, as amended, or any applicable law or regulation implementing the OECD Convention on Combating Bribery
of Foreign Public Officials in International Business Transactions, or committed an offence under the Bribery Act 2010 of the
United Kingdom or any other applicable anti-bribery or anti-corruption law; or (iv) made, offered, agreed, requested
or taken an act in furtherance of any unlawful bribe or other unlawful benefit, including, without limitation, any rebate, payoff,
influence payment, kickback or other unlawful or improper payment or benefit. The Company has instituted, maintained and enforced,
and will continue to maintain and enforce policies and procedures designed to promote and ensure compliance with all applicable
anti-bribery and anti-corruption laws and the representations and warranties contained herein. The Company will not use, directly
or indirectly, the proceeds from the offering the of Shares hereunder in furtherance of any offer, payment, promise to pay or
authorization or approval of any payment or benefit, giving or receipt of money, property, gifts or anything else of value, to
any person in violation of any anti-corruption laws.


  


(uu)     Compliance
with Anti-Money Laundering Laws. The operations of the Company are and have been conducted at all times in compliance with
all applicable financial recordkeeping and reporting requirements, including those of the Currency and Foreign Transactions Reporting
Act of 1970, as amended, the applicable money laundering statutes of all jurisdictions where the Company conducts business, the
rules and regulations thereunder and any related or similar rules, regulations or guidelines issued, administered or enforced
by any governmental agency (collectively, the “Anti-Money Laundering Laws”), and no action, suit or proceeding
by or before any court or governmental agency, authority or body or any arbitrator involving the Company with respect to the Anti-Money
Laundering Laws is pending or, to the knowledge of the Company, threatened.


 


(vv)     No
Conflicts with Sanctions Laws. Neither the Company nor any of its directors, officers, or employees, nor, to the knowledge
of the Company, any agent, affiliate, representative or other person associated with or acting on behalf of the Company (each,
a “Person”) is, or is owned or controlled by one or more persons that are, currently the subject or the target
of any sanctions administered or enforced by the U.S. government, (including, without limitation, the Office of Foreign Assets
Control of the U.S. Department of the Treasury or the U.S. Department of State and including, without limitation, the designation
as a “specially designated national” or “blocked person”), the United Nations Security Council, the European
Union, Her Majesty’s Treasury or other relevant sanctions authority (collectively, “Sanctions”), nor
is the Company located, organized or resident in a country or territory that is the subject or target of Sanctions, including,
without limitation, the Balkans, Belarus, Burundi, the Central African Republic, Cuba, the Democratic Republic of the Congo, Iran,
Libya, North Korea, Sudan, Syria and Venezuela (each, a “Sanctioned Country”); and the Company will not
directly or indirectly use the proceeds of the offering of the Shares hereunder, or lend, contribute or otherwise make available
such proceeds to any joint venture partner or other person or entity (i) to fund or facilitate any activities of or business
with any person that, at the time of such funding or facilitation, is the subject or target of Sanctions, (ii) to fund or
facilitate any activities of or business in any Sanctioned Country or (iii) in any other manner that will result in a violation
by any person (including any person participating in the transaction, whether as underwriter, advisor, investor or otherwise)
of Sanctions. For the past five years, the Company has not knowingly engaged in and is not now knowingly engaged in, and will
not engage in, any dealings or transactions with any Person that at the time of the dealing or transaction is or was the subject
or the target of Sanctions or with any Sanctioned Country.


 






    	 	14	 



     


    




 


(ww)     Sales
Limitations. The Company is in compliance with Commission rules that prohibit the Company from selling securities in
a public primary offering with a value exceeding more than one-third of its public float in any 12-month
period so long as its public float remains below $75.0 million


 


Any certificate signed by any officer of
the Company delivered to the Manager or to counsel for the Manager shall be deemed a representation and warranty by the Company
to the Manager as to the matters covered thereby on the date of such certificate.


 


The Company acknowledges that the Manager
and, for purposes of the opinions to be delivered pursuant to Section 6 hereof, counsel to the Company and counsel to the
Manager, will rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to such reliance.


 


2.            Sale
of Securities. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and
conditions herein set forth, the Company and the Manager agree that the Company may from time to time seek to sell Shares through
the Manager, acting as sales agent as follows:


 


(a)            The
Company may submit its orders to the Manager by telephone (including any price, time or size limits or other customary parameters
or conditions) to sell Shares on any Trading Day (as defined herein), which order shall be confirmed by the Manager (and accepted
by the Company) by electronic mail using a form substantially similar to that attached hereto as Exhibit A. As used
herein, “Trading Day” shall mean any trading day on the Exchange, other than a day on which the Exchange is
scheduled to close prior to its regular weekday closing time.


 


(b)            Subject
to the terms and conditions hereof, the Manager shall use its commercially reasonable efforts consistent with its normal sales
and trading practices to execute any Company order submitted to it hereunder to sell Shares with respect to which the Manager
has agreed to act as sales agent. The Company acknowledges and agrees that (i) there can be no assurance that the Manager
will be successful in selling the Shares, (ii) the Manager will incur no liability or obligation to the Company or any other
person or entity if it does not sell Shares for any reason and (iii) the Manager shall be under no obligation to purchase
Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Manager and the Company.


 


(c)            The
Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company other than (A) by any method
permitted by law deemed to be an “at the market” offering as defined in Rule 415(a)(4) of the Securities
Act, including by means of ordinary brokers’ transactions between members of the Exchange that qualify for delivery of a
Prospectus to the Exchange in accordance with Rule 153 of the Securities Act and (B) such other sales of the Shares
on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and such Manager.


 


(d)            The
Company shall not authorize the issuance and sale of, and the Manager shall not sell, any Share at a price lower than the minimum
price therefor designated by the Company pursuant to Section 2(a) above. In addition, the Company or the Manager may,
upon notice to the other party hereto by telephone (confirmed promptly by email), suspend an offering of the Shares pursuant to
this Agreement for a specified period (a “Suspension Period”); provided, however, that such suspension
shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the receipt
or giving of such notice, as applicable; and provided further, that there shall be no obligations under Sections 6(l),
6(m), 6(n) and 6(o) with respect to the delivery of certificates, opinions or comfort letters to the Managers during
a Suspension Period and that such obligations shall recommence on the termination of the Suspension Period.


 






    	 	15	 



     


    




 


(e)            The
Manager shall provide written confirmation (which may be by email) to the Company following the close of trading on the Exchange
each day in which Shares are sold under this Agreement setting forth (i) the amount of Shares sold on such day, (ii) the
price or prices at which such Shares were sold on such day, (iii) the gross offering proceeds received from such sale, (iv) the
Net Proceeds to the Company and (v) the commission payable by the Company to the Manager with respect to such sales.


 


(f)            At
each Time of Sale, Settlement Date and Representation Date (as defined in Section 6(l) below), the Company shall be
deemed to have affirmed each representation and warranty contained in this Agreement. Any obligation of the Manager to use its
commercially reasonable efforts to sell the Shares on behalf of the Company as sales agent shall be subject to the continuing
accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder
and to the continuing satisfaction of the additional conditions specified in Section 5 of this Agreement.


 


(g)            Notwithstanding
any other provision of this Agreement, the Company and the Manager agree that no sales of Shares shall take place, the Company
shall not request the sales of any Shares that would be sold and the Manager shall not be obligated to sell or offer to sell,
(i) during any period in which the Company’s insider trading policy, as it exists on the date of this Agreement, would
prohibit the purchase or sale of Common Stock by persons subject to such policy, or (ii) during any other period in which
the Company is, or could reasonably be deemed to be, in possession of material non-public information; provided that, unless
otherwise agreed between the Company and the Manager, for purposes of Section 2(g)(i) above, any such period shall be
deemed to end on the date on which the Company’s next subsequent annual report on Form 10-K or quarterly report on
Form 10-Q, as the case may be, is filed with the Commission.


 


3.            Fee.
The compensation to the Manager for sales of the Shares with respect to which the Manager acts as sales agent hereunder shall
be 2.5% of the gross offering proceeds of the Shares sold pursuant to this Agreement (the “Selling Commission”).
For each sale of Shares, the amount of sale proceeds remaining after payment of the Selling Commission shall constitute the net
proceeds to the Company for such sale of Shares (the “Net Proceeds”). The Company shall pay to the Manager,
on the applicable Settlement Date, the Selling Commission for the applicable Shares sold by the Manager (which amount may be withheld
by the Manager from the gross proceeds from the sale of such Shares). For the avoidance of doubt, any expense payment and reimbursement
obligations of the Company set forth in Section 6(i) below shall be separate and independent obligations of the Company
and shall not be deemed a credit or otherwise act to offset the compensation to the Manager pursuant to this Agreement.


 


4.            Payment,
Delivery and Other Obligations. Settlement for sales of the Shares pursuant to this Agreement will occur on the second Trading
Day (or such earlier day as is industry practice for regular-way trading) following the date on which such sales are made (each
such day, a “Settlement Date”). On each Settlement Date, the Shares sold through the Manager for settlement
on such date shall be issued and delivered by the Company to the Manager against payment of the Net Proceeds from the sale of
such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent
to the Manager’s or its designee’s account (provided that the Manager shall have given the Company written notice
of such designee prior to the applicable Settlement Date) at The Depository Trust Company 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, in return for payment in same day funds delivered to the account designated by the Company. If the Company,
or its transfer agent (if applicable), shall default on its obligation to deliver the Shares on any Settlement Date, then the
Company shall (i) hold the Manager 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 and (ii) pay the Manager any
commission, discount or other compensation to which it would otherwise be entitled absent such default.


 






    	 	16	 



     


    




 


5.            Conditions
to the Manager’s Obligations. The obligations of the Manager are subject to the following conditions:


 


(a)            Since
the later of (A) the date of this Agreement and (B) the immediately preceding Representation Date: (i) there shall
not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review
for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities
of the Company by any “nationally recognized statistical rating organization”, as such term is defined in Section 3(a)(62)
of the Exchange Act; and (ii) there shall not have occurred, in the Manager’s sole judgment, any change or development
reasonably likely to become a Material Adverse Effect from the respective dates of the Registration Statement, the Prospectus
and the General Disclosure Package that, in the Manager’s sole judgment, makes it or would make it impracticable to market
the Shares on the terms and in the manner contemplated in the Prospectus.


 


(b)            The
Manager shall have received on each date specified in Section 6(l) a certificate, dated such date and signed by an executive
officer of the Company, to the effect set forth in Section 5(a)(i) above and to the effect that (i) the representations
and warranties of the Company contained in this Agreement are true and correct as of such date; (ii) the Company has complied
with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before
such date; (iii) no stop order suspending the effectiveness of the Registration Statement has been issued under the
Securities Act and no proceedings for that purpose or pursuant to Section 8A of the Securities Act have been instituted or
are pending or, to the knowledge of the Company, are contemplated by the Commission, and any request on the part of the Commission
for additional information has been complied with; (iv) the Prospectus Supplement, any Interim Prospectus Supplement and
each Permitted Free Writing Prospectus have been timely filed with the Commission under the Securities Act (in the case of a Permitted
Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), and all requests for additional information
on the part of the Commission have been complied with or otherwise satisfied; (v) as of such date and as of each Time of
Sale, if any, subsequent to the immediately preceding Representation Date, the Registration Statement did not contain any 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 (vi) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding
Representation Date, the General Disclosure Package did not contain any 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; provided, however, that no such certificate shall apply to any statements
or omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Manager expressly
for use in the General Disclosure Package. The officer signing and delivering such certificate may rely upon his or her knowledge
as to proceedings threatened.


 






    	 	17	 



     


    

 



 


(c)            The
Manager shall have received on each date specified in Section 6(m) an opinion and negative assurance letter of Duane
Morris LLP, outside counsel for the Company, dated such date, in form and substance reasonably satisfactory to the Manager, which
opinion and negative assurance letter shall be rendered to the Manager at the request of the Company and shall so state therein.


 


(d)            The
Manager shall have received on each date specified in Section 6(n) an opinion and negative assurance letter of Faegre
Drinker Biddle & Reath LLP, counsel for the Manager, dated such date, in form and substance reasonably satisfactory to
the Manager.


 


(e)            The
Manager shall have received on each date specified in Section 6(o), letters dated such date in form and substance satisfactory
to the Manager, from Company Auditor, current independent registered public accountant for the Company, (A) confirming that
as of the date of its respective audit report(s), it was an independent registered public accounting firm within the meaning of
the Securities Act, the Exchange Act and the Public Company Accounting Oversight Board, (B) stating, as of such date, the
conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’
 “comfort letters” to underwriters in connection with registered public offerings (the first such letters from Company
Auditor, the “Initial Comfort Letter”) and (C) updating the Initial Comfort Letter with any information
that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate
to the Registration Statement, the Prospectus Supplement, the Prospectus or any issuer free writing prospectus, as amended and
supplemented to the date of such letter.


 


(f)            All
filings with the Commission required by Rule 424 under the Act to have been filed by each Time of Sale or related Settlement
Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)).


 


(g)            The
Shares shall have been approved for listing on the Exchange, subject only to a notice of issuance at or prior to the applicable
Settlement Date.


 


6.            Covenants
of the Company. The Company covenants with the Manager as follows:


 


(a)            To
furnish to the Manager copies of the Registration Statement (excluding exhibits) and copies of the Prospectus (or the Prospectus,
as amended or supplemented) in such quantities as the Manager may from time to time reasonably request. In case the Manager is
required to deliver, under the Securities Act (whether physically or through compliance with Rule 172 under the Securities
Act or any similar rule), a prospectus relating to the Shares after the nine-month period referred to in Section 10(a)(3) of
the Securities Act, or after the time a post-effective amendment to the Registration Statement is required pursuant to Item 512(a) of
Regulation S-K under the Securities Act, upon the request of the Manager, and at its own expense, the Company shall prepare
and deliver to the Manager as many copies as the Manager may reasonably request of an amended Registration Statement or amended
or supplemented prospectus complying with Item 512(a) of Regulation S-K or Section 10(a)(3) of the Securities
Act, as the case may be.


 


(b)            Before
amending or supplementing the Registration Statement or the Prospectus in connection with the issuance of the Shares, to furnish
to the Manager a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to
which the Manager reasonably objects (other than any prospectus supplement relating to the offering of Shelf Securities other than
the Shares). To furnish to the Manager a copy of each proposed free writing prospectus to be prepared by or on behalf of, used
by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which the Manager reasonably
objects. Not to take any action that would result in the Manager or the Company being required to file with the Commission pursuant
to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Manager that the Manager
otherwise would not have been required to file thereunder.


 






    17


     


    




 


(c)            To
file, subject to Section 6(b) above, promptly all reports and any definitive proxy or information statements required
to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent
to the date of the Prospectus Supplement and for the duration of the Delivery Period. For the duration of the Delivery Period,
to include in its quarterly reports on Form 10-Q, and in its annual reports on Form 10-K, a summary detailing, for the
relevant reporting period, (i) the number of Shares sold through the Manager pursuant to this Agreement, (ii) the Net
Proceeds received by the Company from such sales and (iii) the compensation paid by the Company to the Manager with respect
to such sales (or alternatively, to prepare a prospectus supplement (each, an “Interim Prospectus Supplement”)
with such summary information and, at least once a quarter and subject to Section 6(b) above, file such Interim Prospectus
Supplement pursuant to Rule 424(b) under the Securities Act (and within the time periods required by Rule 424(b) and
Rules 430A, 430B or 430C under the Securities Act)).


 


(d)            To
file any Permitted Free Writing Prospectus to the extent required by Rule 433 under the Securities Act and to provide copies
of the Prospectus and such Prospectus Supplement and each Permitted Free Writing Prospectus (to the extent not previously delivered
or filed on EDGAR or any successor system thereto) to the Manager via electronic mail in “.pdf” format on such filing
date to an electronic mail account designated by the Manager and, at the Manager’s request, to also furnish copies of the
Prospectus and such Prospectus Supplement to the Exchange and each other exchange or market on which sales of the Shares were effected,
in each case, as may be required by the rules or regulations of the Exchange or such other exchange or market.


 


(e)            During
the Delivery Period to advise the Manager, promptly and no later than one Trading Day after it receives notice thereof, of the
issuance of any stop order by the Commission, of the suspension of the qualification of the Shares for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for
the amending or supplementing of the Registration Statement, the Prospectus Supplement, the Prospectus or any Permitted Free Writing
Prospectus or for additional information; and, in the event of the issuance of any such stop order or of any order preventing or
suspending the use of any prospectus relating to the Shares or suspending any such qualification, to promptly use its best efforts
to obtain its withdrawal.


 


(f)            If,
after the date hereof and during the Delivery Period, either (i) any event shall occur or condition exist as a result of which
the Prospectus would include any untrue statement of a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were made, not misleading, or (ii) for any other
reason it shall be necessary during such same period to amend or supplement the Prospectus or to file any document in order to
comply with the Securities Act or the Exchange Act, to promptly advise the Manager by telephone (with confirmation in writing or
electronic mail) and to promptly prepare and file, subject to Section 6(b) above, with the Commission an amendment or
supplement to the Registration Statement or the Prospectus which will correct such statement or omission or effect such compliance
and to furnish to the Manager as many copies as the Manager may reasonably request of such amendment or supplement.


 


(g)            To
endeavor to qualify the Shares for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Manager shall
reasonably request and to continue such qualifications in effect so long as necessary under such laws for the distribution of the
Shares; provided, however, that the Company shall not be required to qualify as a foreign corporation or to consent
to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale
of the Shares).


 






    18


     


    

 





(h)            To
make generally available to the Company’s security holders and to the Manager as soon as practicable an earnings statement
covering a period of at least 12 months beginning with the first fiscal quarter of the Company occurring after the date of this
Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities
Act.


 


(i)            Whether
or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid
all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and
expenses of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of
the Shares under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Registration
Statement, any Prospectus Supplement, the Prospectus, any free writing prospectus prepared by or on behalf of, used by, or referred
to by the Company and amendments and supplements to any of the foregoing, including the filing fees payable to the Commission relating
to the Shares (within the time required by Rule 456(b)(1), if applicable), all printing costs associated therewith, and the
mailing and delivering of copies thereof to the Manager, in the quantities hereinabove specified, (ii) all costs and expenses
related to the transfer and delivery of the Shares, including any transfer or other taxes payable thereon and all trading, execution,
settlement or wiring fees incurred by the Agent in connection with the sale of the Shares, (iii) the cost of printing or producing
any Blue Sky or Legal Investment memorandum in connection with the offer and sale of the Shares under state securities laws and
all expenses in connection with the qualification of the Shares for offer and sale under state securities laws as provided in Section 6(g) above,
including filing fees and the reasonable fees and disbursements of counsel for the Manager in connection with such qualification
and in connection with the Blue Sky or Legal Investment memorandum, (iv) all filing fees and the reasonable fees and disbursements
of counsel to the Manager incurred in connection with the offering contemplated by this Agreement, including any review and qualification
by FINRA, provided that reimbursement pursuant to this clause (iv) shall not exceed $150,000 through the fourth business
day following execution of this Agreement and shall not exceed $25,000 for each quarterly period thereafter, (v) all costs
and expenses incident to listing the Shares on the Exchange, (vi) the costs and charges of any transfer agent, registrar or
depositary, (vii) all fees, expenses and disbursements relating to background checks
of the Company’s officers and directors in an amount not to exceed $1,000 per individual, and (viii) all other
costs and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise
made in this Section. In addition, the Company will also reimburse (A) all reasonable out of pocket expenses of the Manager
in connection with the documentation, negotiation, implementation and execution of the Agreement and offering of Shares, including
reasonable fees and disbursements to Agent’s outside counsel, up to an aggregate of $50,000, and (B) reasonable out
of pocket expenses in connection with diligence related to the Agreement and offering of Shares up to an aggregate of $10,000 per
calendar year during the term of this Agreement.


 


(j)            If
the third anniversary of the initial effective date of the Registration Statement occurs before all the Shares have been sold,
prior to such third anniversary, to file, subject to Section 6(b), a new shelf registration statement and to take any other
action necessary to permit the public offering of the Shares to continue without interruption (references herein to the Registration
Statement shall include the new registration statement that is declared effective by, or becomes effective upon filing with, the
Commission).


 






    19


     


    

 


(k)            To
use its commercially reasonable efforts to cause the Shares to be listed for trading on the Exchange and to maintain such listing.





 


(l)             Upon
commencement of the offering of the Shares under this Agreement (and upon the recommencement of the offering of the Shares under
this Agreement following a Suspension Period), and each time that (i) the Registration Statement or the Prospectus is amended
or supplemented (other than a prospectus supplement relating solely to the offering of Shelf Securities other than the Shares)
or (ii) there is filed with the Commission any document incorporated by reference into the Prospectus (other than a current
report on Form 8-K, unless the Manager shall otherwise reasonably request) (such commencement date (and any such recommencement
date, if applicable) and each such date referred to in (i) and (ii) above, a “Representation Date”),
to furnish or cause to be furnished to the Manager forthwith a certificate dated and delivered as of such date (except
that, in the case of clause (ii), the Company has up to two business days after the filing to furnish the certificate),
in form reasonably satisfactory to the Manager, to the effect that the statements contained in the certificate referred to in Section 5(b) of
this Agreement are true and correct at the time of such Representation Date, as though made at and as of such time modified as
necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to the time of delivery of such
certificate.


 


(m)           (i)      On
each Representation Date, the Company shall cause to be furnished to the Manager, dated as of such date, in form and substance
satisfactory to the Manager, the written opinion and negative assurance letter of Duane Morris
LLP, outside counsel for the Company, as described in Section 5(c), modified as necessary to relate to the Registration
Statement and the Prospectus, as amended and supplemented to the time of delivery of such opinion and negative assurance letter
(except that, in the case of clause (ii) of Section 6(l) above, the Company
has up to two business days after the filing to have the written opinions and negative assurance letters furnished to the Manager).


 


(n)            On
each Representation Date, Faegre Drinker Biddle & Reath LLP, counsel to the Manager, shall furnish to the Manager a written
opinion and negative assurance letter, as described in Section 5(d), dated as of such date in form and substance reasonably
satisfactory to the Manager (except that, in the case of clause (ii) of Section 6(l) above,
Faegre Drinker Biddle & Reath LLP has up to two business days after the filing to have the written opinions and negative
assurance letters furnished to the Manager).


 


With respect to Sections 6(m) and
6(n) above, in lieu of delivering such an opinion for dates subsequent to the commencement of the offering of the Shares under
this Agreement such counsel may furnish the Manager with a letter (a “Reliance Letter”) to the effect that the
Manager may rely on a prior opinion delivered under Section 6(m) or Section 6(n), as the case may be, to the same
extent as if it were dated the date of such letter (except that statements in such prior opinion shall be deemed to relate to the
Registration Statement and the Prospectus as amended or supplemented as of such subsequent date).


 


(o)            Upon
commencement of the offering of the Shares under this Agreement (and upon the recommencement of the offering of the Shares under
this Agreement following a Suspension Period) and each time that (i) the Registration Statement or the Prospectus is amended
or supplemented to include additional financial information, (ii) the Company files an annual report on Form 10-K or
quarterly report on Form 10-Q, (iii) there is furnished to the Commission by the Company any document which contains
additional or amended financial information, including any earnings release or, (iv) there is filed with the Commission any
document (other than an annual report on Form 10-K or quarterly report on Form 10-Q) incorporated by reference into the
Prospectus which contains additional or amended financial information, Company Auditor shall deliver to the Manager the comfort
letter described in Section 5(e) (except that, in the case of clauses (iii) and (iv), the Company Auditor has up
to two business days after the filing to deliver the comfort letter).


 


 






    20


     


    




 


(p)            To
comply with the Due Diligence Protocol attached hereto on Schedule II and any other due diligence review or call reasonably
requested by the Manager.


 


(q)            The
Company will deliver to the Manager (or its agent), on the date of execution of this Agreement, a properly completed and executed
Certification Regarding Beneficial Owners of Legal Entity Customers, together with copies of identifying documentation, and the
Company undertakes to provide such additional supporting documentation as the Manager may reasonably request in connection with
the verification of the foregoing Certification.


 


(r)            To
reserve and keep available at all times, free of preemptive rights, Shares for the purpose of enabling the Company to satisfy its
obligations hereunder.


 


(s)            That
it consents to the Manager trading in the Common Stock for the Manager’s own account and for the account of its clients at
the same time as sales of the Shares occur pursuant to this Agreement.


 


(t)            That
each acceptance by the Company of an offer to purchase the Shares hereunder shall be deemed to be an affirmation to the Manager
that the representations and warranties of the Company contained in or made pursuant to this Agreement are true and correct as
of the date of such acceptance as though made at and as of such date, and an undertaking that such representations and warranties
will be true and correct as of the Time of Sale and the Settlement Date for the Shares relating to such acceptance as though made
at and as of each of such dates (except that such representations and warranties shall be deemed to relate to the Registration
Statement and the Prospectus, as amended and supplemented, relating to such Shares).


 


(u)            Prior
to instructing the Manager pursuant to Section 2 hereof to make sales on any given day (or as otherwise agreed between the
Company and the Manager), the Company’s board of directors or a committee thereof authorized by either such board of directors
or any authorized committee thereof (the “Board”) (i) shall have approved the minimum price and maximum
number of Shares to be sold on such day and (ii) shall have provided to the Company an authorizing resolution, substantially
in the form of Exhibit B, approving such price and number. The instructions provided to the Manager by the Company, pursuant
to Section 2, on such day shall reflect the terms of such authorizing resolution.


 


(v)            Not
to, or publicly disclose an intention to, sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option
to sell or otherwise dispose of or agree to dispose of, directly or indirectly, any shares of the Common Stock or securities convertible
into or exchangeable or exercisable for the Common Stock or warrants or other rights to purchase the Common Stock or any other
securities of the Company that are substantially similar to the Common Stock or permit the registration under the Securities Act
of any shares of the Common Stock, except for (i) the registration of the Shares and the sales through the Manager pursuant
to this Agreement, (ii) any shares of Common Stock issued by the Company upon the exercise of an option or warrant or the
conversion of a security outstanding on the date hereof and referred to in the Prospectus, (iii) any shares of Common Stock
issued or options to purchase Common Stock granted pursuant to existing employee benefit plans or long term incentive plan of the
Company or (iv) any shares of Common Stock issued pursuant to any stock repurchase plan of the Company, during the Delivery
Period, without (A) giving the Manager at least three business days’ prior written notice specifying the nature of the
proposed sale and the date of such proposed sale and (B) the Manager suspending activity under this program for such period
of time as requested by the Company.


 






    21


     


    




 


7.            Representations
and Covenants of the Manager. The Manager 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 Shares will be offered and sold, except
such states in which the Manager is exempt from registration or such registration is not otherwise required. The Manager 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 Shares will be offered and sold, except such states in which it is exempt from
registration or such registration is not otherwise required, during the term of this Agreement. The Manager covenants with the
Company not to take any action that would result in the Company being required to file with the Commission under Rule 433(d) under
the Securities Act a free writing prospectus prepared by or on behalf of the Manager that otherwise would not be required to be
filed by the Company thereunder, but for the action of the Manager. The Manager shall not use any free writing prospectus in connection
with the offer and sale of the Shares except for any such free writing prospectus approved by the Company for use for such purpose.


 


8.            Indemnity
and Contribution.


 


(a)            Indemnification
of the Manager. The Company agrees to indemnify and hold harmless the Manager and each person, if any, who controls the Manager
within the meaning of either Section 15 of the Securities Act or Section 20(a) of the Exchange Act and each affiliate
of the Manager within the meaning of Rule 405 under the Securities Act from and against any and all losses, liabilities, claims,
damages and expenses whatsoever as incurred (including without limitation, reasonable attorneys’ fees and any and all reasonable
expenses whatsoever incurred in investigating, preparing or defending against any litigation, commenced or threatened, or any claim
whatsoever, and any and all amounts paid in settlement of any claim or litigation in accordance with this section), joint or several,
to which they or any of them may become subject under the Securities Act, the Exchange Act or otherwise, insofar as such losses,
liabilities, claims, damages or expenses (or actions in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration Statement, the Prospectus, the Prospectus Supplement
(including any Interim Prospectus Supplement), the General Disclosure Package, any Permitted Free Writing Prospectus or other free
writing prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act,
or in any supplement thereto or amendment thereof, or arising out of or based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however,
that the Company will not be liable in any such case to the extent that any such loss, liability, claim, damage or expense arises
out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made in reliance
upon and in strict conformity with written information relating to the Manager furnished to the Company in writing by or on behalf
of the Manager expressly for use therein.


 


(b)            Indemnification
of the Company. The Manager agrees to indemnify and hold harmless the Company, each of the directors of the Company, each of
the officers of the Company who signed the Registration Statement, and each other person, if any, who controls the Company within
the meaning of either Section 15 of the Securities Act or Section 20(a) of the Exchange Act, to the same extent
as the foregoing indemnity from the Company to the Manager, but only with reference to information relating to the Manager furnished
to the Company in writing by the Manager expressly for use in the Registration Statement, the Prospectus, the Prospectus Supplement
(including any Interim Prospectus Supplement), the General Disclosure Package, any Permitted Free Writing Prospectus or other free
writing prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act,
or any amendment or supplement thereto.


 






    22


     


    




 


(c)            Required
Notices; Right to Counsel. In case any proceeding (including any governmental investigation) shall be instituted involving
any person in respect of which indemnity may be sought pursuant to Section 8(a) or 8(b), such person (the “indemnified
party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”)
in writing (it being understood that the omission so to notify the indemnifying party shall not relieve the indemnifying party
from any liability that it might have to any indemnified party otherwise than under this Section 8 and from any liability
that it may have to any indemnified party under the foregoing provisions of this Section 8 unless, and only to the extent
that, such omission results in the forfeiture of substantive rights or defenses by the indemnifying party), and the indemnifying
party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent
the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements
of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any
such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood
that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding
or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred.
Such firm shall be designated in writing by the Manager, in the case of parties indemnified pursuant to Section 8(a), and
by the Company, in the case of parties indemnified pursuant to Section 8(b). The indemnifying party shall not be liable for
any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability
by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second
and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying
party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that are the subject matter of such proceeding.


 


(d)            Contribution.
If the indemnification provided for in this Section 8 is unavailable to or insufficient to hold harmless an indemnified party
under Section 8(a) or 8(b) in respect of any losses, liabilities, claims, damages or expenses (or actions in respect
thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, liabilities, claims, damages or expenses (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative benefits received by the Company on the one hand and the Manager on the other from the offering of the
Shares. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law, then each
indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate
to reflect not only such relative benefits but also the relative fault of the Company on the one hand and the Manager on the other
in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses (or actions
in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company, on
the one hand, and the Manager, on the other hand, from the offering of the Shares shall be deemed to be in the same respective
proportions as the gross proceeds from the offering (before deducting expenses) received by the Company bear to the total commissions
received by the Manager. The relative fault shall of the Company, on the one hand, and the Manager, on the other hand, shall be
determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to information supplied by the Company or the Manager and the parties’
relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.


 






    23


     


    

 





The Company and the Manager agree
that it would not be just and equitable if contributions pursuant to this Section 8(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in
this Section 8(d). The amount paid or payable by an indemnified party as a result of the losses, liabilities, claims, damages
or expenses (or actions in respect thereof) referred to above in this Section 8(d) shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 8(d), the Manager shall not be required to contribute any amount in
excess of the amount by which the total price at which the Shares sold by it were offered to the public exceeds the amount of any
damages that the Manager has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission or any amount in excess of the Selling Commission received by the Manager
in connection with the offering contemplated hereby.


 


No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.


 


For
purposes of this Section 8(d), each officer and employee of the Manager and each person, if any, who controls the Manager
within the meaning of the Securities Act or the Exchange Act shall have the same rights to contribution as the Manager, and each
director of the Company, each officer of the Company who signed the Registration Statement, and each person, if any, who controls
the Company within the meaning of the Securities Act and the Exchange Act shall have the same rights to contribution as the Company.


 


(e)            Non-Exclusive
Remedies. The obligations of the parties to this Agreement contained in this Section 8 are not exclusive and shall not
limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.


 


(f)            Information
Provided by Manager. It is understood and agreed that the only information furnished by the Manager to the Company pursuant
to Section 8(a) or 8(b) that is included in the Registration Statement, the General Disclosure Package, the Prospectus
or any road show or other material consists of the information set forth in the seventh paragraph under the caption “Plan
of Distribution” in the Prospectus Supplement and the Prospectus.


 


(g)            Survival.
The indemnity and contribution provisions contained in this Section 8 and the representations, warranties and other statements
of the Company contained in this Agreement shall remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by or on behalf of the Manager, any person controlling the Manager or any affiliate
of the Manager or by or on behalf of the Company, its officers or directors or any person controlling the Company and (iii) acceptance
of and payment for any of the Shares.


 






    24


     


    




 


9.            Effectiveness.
This Agreement shall become effective upon the execution and delivery hereof by the parties hereto and, unless earlier terminated
pursuant to Section 10 below, shall remain effective until the sale of all of the Shares pursuant to this Agreement.


 


10.          Termination.


 


(a)            The
Company shall have the right, by giving written notice as hereinafter specified, to terminate this Agreement in its sole discretion
at any time. Any such termination shall be without liability of any party to any other party, except that (i) with respect
to any pending sale through the Manager for the Company, the obligations of the Company, including, but not limited to, its obligations
under Section 4 above, shall remain in full force and effect notwithstanding such termination; and (ii) the provisions
of Section 1, Section 3 and Section 8 of this Agreement shall remain in full force and effect notwithstanding such
termination.


 


(b)            The
Manager shall have the right, by giving written notice as hereinafter specified, to terminate this Agreement in its sole discretion
at any time. Any such termination shall be without liability of any party to any other party except that (i) with respect
to any pending sale through the Manager for the Company, the obligations of the Company, including, but not limited to, its obligations
under Section 4 above, shall remain in full force and effect notwithstanding such termination; and (ii) the provisions
of Section 1, Section 3 and Section 8 of this Agreement shall remain in full force and effect notwithstanding such
termination.


 


(c)            This
Agreement shall remain in full force and effect until and unless terminated pursuant to Section 10(a) or 10(b) above
or otherwise by mutual agreement of the parties; provided that any such termination by mutual agreement or pursuant to this
Section 10(c) shall in all cases be deemed to provide that Section 1, Section 3 and Section 8 of this
Agreement shall remain in full force and effect.


 


(d)            Any
termination of this Agreement shall be effective on the date specified in such notice of termination; provided that such
termination shall not be effective until the close of business on the date of receipt of such notice by the Manager or the Company,
as the case may be. If such termination shall occur prior to the applicable Settlement Date for any sale of Shares, then such sale
shall settle in accordance with the provisions of Section 4.


 


11.          Press
Releases and Disclosure. The Company may issue a press release describing the material terms of the transactions contemplated
hereby as soon as practicable following the date of this Agreement, and may file with the Commission a Current Report on Form 8-K,
with this Agreement attached as an exhibit thereto, describing the material terms of the transactions contemplated hereby, and
the Company shall consult with the Manager prior to making such disclosures, and the parties hereto shall use all commercially
reasonable efforts, acting in good faith, to agree upon a text for such disclosures that is reasonably satisfactory to all parties
hereto. No party hereto shall issue thereafter any press release or like public statement (including, without limitation, any disclosure
required in reports filed with the Commission pursuant to the Exchange Act) related to this Agreement or any of the transactions
contemplated hereby without the prior written approval of the other party hereto, except as may be necessary or appropriate in
the reasonable opinion of the party seeking to make disclosure to comply with the requirements of applicable law or stock exchange
rules and except for the disclosure required pursuant to Section 6(c) of this Agreement in the Company’s quarterly
reports on Form 10-Q or annual reports on Form 10-K. If any such press release or like public statement is so required,
the party making such disclosure shall consult with the other party prior to making such disclosure, and the parties shall use
all commercially reasonable efforts, acting in good faith, to agree upon a text for such disclosure that is reasonably satisfactory
to all parties hereto.


 






    25


     


    







 


12.          Entire
Agreement.


 


(a)            This
Agreement represents the entire agreement between the Company and the Manager with respect to the preparation of any Registration
Statement, Prospectus Supplement or the Prospectus, the conduct of the offering and the sale and distribution of the Shares.


 


(b)            The
Company acknowledges that in connection with the offering of the Shares: (i) the Manager has acted and will act at arm’s
length and owes no fiduciary duties to, the Company or any other person, (ii) the Manager owes the Company only those duties
and obligations set forth in this Agreement and prior written agreements (to the extent not superseded by this Agreement), if any,
and (iii) the Manager may have interests that differ from those of the Company. The Company waives to the full extent permitted
by applicable law any claims it may have against the Manager arising from an alleged breach of fiduciary duty in connection with
the sale and distribution of the Shares.


 


(c)            This
Agreement may not be amended or modified unless in writing by all of the parties hereto, and no condition herein (express or implied)
may be waived unless waived in writing by each party whom the condition is meant to benefit.


 


13.          Counterparts.
This Agreement may be signed in two or more counterparts, each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument and may be delivered by facsimile transmission
or by electronic delivery of a portable document format (PDF) file or via DocuSign electronic signature.


 


14.          Applicable
Law; Consent to Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the internal laws of the
State of New York without regard to the principles of conflicts of laws. Each party hereby irrevocably submits to the non-exclusive
jurisdiction of the state and federal courts sitting in Hennepin County, Minnesota, 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.


 


15.          Headings.
The headings of the sections of this Agreement have been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.


 


16.          Notices.
All communications hereunder shall be in writing, effective only upon receipt and shall be delivered, mailed, telecopied, or sent
by email to the parties hereto as follows, or in each case to such other address as the person
to be notified may have requested in writing. Any party to this Agreement may change such address for notices by sending to the
parties to this Agreement written notice as provided hereunder of a new address for such purpose.


 






    26


     


    

 


If to the Manager, to:


 


Northland Capital Markets


150 South Fifth Street, Suite 3300


Minneapolis, Minnesota 55402

Attn: Investment Banking


 





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


 


Faegre Drinker Biddle & Reath LLP

2200 Wells Fargo Center

90 South Seventh Street

Minneapolis, MN 55402-3901

Attn: Jonathan R. Zimmerman

Email: Jon.Zimmerman@FaegreDrinker.com


 


If to the Company:


 


Cohen &
Company Inc.

Cira Centre

2929 Arch Street, Suite 1703

Philadelphia, Pennsylvania

Attn: Joseph W. Pooler, Jr.


Email: 
jpooler@cohenandcompany.com


 


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


 


Duane
Morris LLP

30 South 17th Street

Philadelphia, PA 19103-4196

Attn: Darrick M. Mix

Email:  Dmix@duanemorris.com


 


17.          Successors.
This Agreement will inure to the benefit of and be binding upon the parties hereto, and to the benefit persons referred to in Section 8(a) or
8(b), and in each case their respective successors, and no other person will have any right or obligation hereunder. The term “successors”
shall not include any purchaser of the Shares as such from the Manager merely by reason of such purchase.


 


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


 


19.          Recognition
of the U.S. Special Resolution Regimes.


 


(a)            In
the event that the Manager is a Covered Entity (as defined in this Section) and becomes subject to a proceeding under a U.S. Special
Resolution Regime (as defined in this Section), the transfer from the Manager of this Agreement, and any interest and obligation
in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution
Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the
United States.


 


(b)            In
the event that the Manager is a Covered Entity or a BHC Act Affiliate (as defined in this Section) of the Manager becomes subject
to a proceeding under a U.S. Special Resolution Regime, Default Rights (as defined in this Section) under this Agreement that may
be exercised against the Manager are permitted to be exercised to no greater extent than such Default Rights could be exercised
under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United
States.


 






    27


     


    

 


(c)            For
purposes of this Section 19: (i) a “BHC Act Affiliate” has the meaning assigned to the term “affiliate”
in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k); (ii) a “Covered Entity” means
any of the following: (A) a “covered entity” as that term is defined in, and interpreted in accordance with, 12
C.F.R. § 252.82(b); (B) “covered bank” as that term is defined in, and interpreted in accordance with, 12
C.F.R. § 47.3(b); or (C) a “covered FSI” as that term is defined in, and interpreted in accordance with,
12 C.F.R. § 382.2(b); (iii) “Default Right” has the meaning assigned to that term in, and shall be
interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable; and (iv) “U.S. Special
Resolution Regime” means each of (A) the Federal Deposit Insurance Act and the regulations promulgated thereunder
and (B) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.


 





[remainder of page left blank
intentionally - signature page follows]


 




    28


     


    


 





	 	Very truly yours,
	 	 
	 	COHEN & COMPANY INC.
	 	 
	 	 
	
	By: 	/s/ Joseph W. Pooler, Jr.
	 	 	Name:	Joseph W. Pooler, Jr.
	 	 	Title:	Executive Vice President, Chief Financial Officer
and Treasurer
	 	 




 


	Accepted as of the date first
    written above:  	 
	   	 
	NORTHLAND CAPITAL MARKETS
     	 
	   	 
	 	 
	By:	/s/ Jeff Peterson  	 
	 	Name:	Jeff Peterson  	 
	 	Title:	Head of Investment Banking  	 








 


Signature Page
to Equity Distribution Agreement


 




    


     


    





 


SCHEDULE
I


 


Permitted Free Writing Prospectuses


 





 


None.


 




    I-1


     


    





 


SCHEDULE II


 


Due Diligence Protocol





 


Set forth below are guidelines for use by
the Company and the Manager in connection with the Manager’s continuous due diligence efforts in connection with the sale
and distribution of the Shares pursuant to the Agreement. For the avoidance of doubt, the Company has agreed that no sales under
the Agreement will be requested or made at any time the Company is, or could be deemed to be, in possession of material non-public
information with respect to the Company.


 


		1.	On or immediately prior to each Representation Date, in addition to the documents provided pursuant to Sections 6(l), 6(m),
6(n) and 6(o) of the Agreement, the Manager expects to conduct a due diligence call with the appropriate business, financial
and legal representatives of the Company.



 


		2.	On the date of or promptly after the Company’s management report becomes available for a given month (but no later than
the last business day of the immediately succeeding month), the Manager expects to conduct a due diligence call with the appropriate
business, financial, accounting and legal representatives of the Company and that the Company shall provide the certificate referred
to in Section 5(b) of the Agreement.



 


		3.	In the event that the Company requests the Manager to sell on any one Trading Day an amount of Shares that would be equal to
or greater than 35% of the average daily trading volume (calculated based on the most recent three completed Trading Days) of the
Company’s common stock, the Manager expects to conduct a due diligence call with the appropriate business, financial, accounting
and legal representatives of the Company and that the Company shall provide the certificate referred to in Section 5(b) of
the Agreement.



 


The foregoing is an expression of current intent only, and shall
not in any manner limit the Manager’s rights under the Agreement, including the Manager’s right to require such additional
due diligence procedures as the Manager may reasonably request pursuant to the Agreement.


 




    II-1


     


    





 


Exhibit A


 


[Northland Letterhead]


 





 


__________, 20__


 


[Name]

[Address]





Attention: __________________


 


VIA ELECTRONIC MAIL


 


TRANSACTION
CONFIRMATION


 


Dear _________:


 


This
Confirmation sets forth the terms of the agreement of Northland Capital Markets (the “Manager”) with Cohen &
Company Inc. (the “Company”) relating to the sale of shares of the Company’s common stock, par
value $0.01 per share, having an aggregate offering price of up to $75,000,000[___], pursuant to the Equity Distribution Agreement
between the Company and the Manager, dated November [●], 2020 (the “Agreement”). Unless otherwise
defined below, capitalized terms defined in the Agreement shall have the same meanings when used herein.


 


By countersigning or otherwise indicating in writing the Company’s
acceptance of this Confirmation (an “Acceptance”), the Company shall have agreed with the Manager to engage
in the following transaction:


 


	[Number of Shares to be sold][Aggregate Gross Price of Shares to be sold]:	
 


	 	 
	Minimum price at which Shares may be sold:	
 


	 	 
	Date(s) on which Shares may be sold:	
 


	 	 
	Compensation to Manager (if different than the Agreement):	
 




 


The transaction set forth in this Confirmation will not be binding
on the Company or the Manager unless and until the Company delivers its Acceptance; provided, however, that neither
the Company nor the Manager will be bound by the terms of this Confirmation unless the Company delivers its Acceptance by _____
[a.m.][p.m.] (New York time) on _______, 20__.


 


The transaction, if it becomes binding on the parties, shall
be subject to all of the representations, warranties, covenants and other terms and conditions of the Agreement, except to the
extent amended or modified hereby, all of which are expressly incorporated herein by reference. Each of the representations and
warranties set forth in the Agreement shall be deemed to have been made at and as of every Time of Sale, every Settlement Date
and every Representation Date.


 




    A-1


     


    



 


If the foregoing conforms to your understanding of our agreement,
please so indicate your Acceptance by signing below.





 


	 	Very truly yours,
	 	 
	 	NORTHLAND CAPITAL MARKETS
	 	 
	 	 
	 	By: 	          
	 	 	Name:         
	 	 	Title:




 


	ACCEPTED as of the date first
    above written	 
	 	 
	COHEN & COMPANY INC.	 
	 	 
	 	 
	By:	       	 
	 	Name:         	 
	 	Title:	 




 




    A-2


     


    


 


Exhibit B


 


Form of Authorizing Resolution


[TO BE CONFORMED TO THE COMPANY’S
CORPORATE GOVERNANCE DOCUMENTS]


 


[Special] Meeting [of the Designated
Subcommittee/Committee]

of the Board of Directors


 


Upon notice duly given or waived, a [special]
meeting [of the Designated Subcommittee/Committee (“Subcommittee”)] of the Board of Directors (the “Board”)
of [●] (the “Company”) was held [by conference telephone]
commencing at [_ ]:00 [a.m./p.m.], local time, on [DATE]. [INSERT NAME(S) OF PARTICIPANTS] attended the meeting
[by conference telephone], constituting a quorum of the [Subcommittee/Board]. [Mr./Ms. [INSERT NAME(S) OF ANY NON-PARTICIPANTS],
who was unable to participate in the meeting, waived notice.] Also participating [on the call] at the invitation of the [Subcommittee/Board]
were [INSERT NAME(S) OF PARTICIPANTS], from the Company and present at the Company’s offices. Mr./Ms. [INSERT NAME]
chaired the meeting and Mr./Ms. [INSERT NAME] acted as secretary to the meeting.


 


Mr./Ms. [INSERT NAME] called the meeting
to order and confirmed the presence of a quorum. After discussing recent developments in the equity markets with respect to the
Company’s common stock, par value $0.01 (the “Common Stock”), Mr./Ms. [INSERT NAME] approved the
proposed offering of shares of Common Stock on the date hereof pursuant to the following resolutions:


 


RESOLVED that, on the date of [_____], 20[__]
only, the Company may offer and sell pursuant to the Registration Statement on Form S-3 (No. 333-[●])
up to [_________] shares of Common Stock (the “Shares”) through Northland Capital Markets (the “Manager”),
pursuant to the Equity Distribution Agreement, dated as of [●], 2020, between the Manager and the Company, by means of ordinary
brokers’ transactions on the stock exchanges on which the Common Stock is traded at
market prices; and further


 


RESOLVED that the appropriate officers of
the Company be, and each of them hereby is, authorized and directed to take such other actions, and to execute and deliver such
other documents and instruments, as they deem necessary or advisable to carry out the purpose and intent of the foregoing resolutions,
the taking of any action or the execution of any document or instrument to be conclusive evidence of the approval thereof by the
[Subcommittee/Board], and that all actions heretofore taken by officers of the Company consistent with the foregoing resolutions
are hereby ratified and confirmed.


 


There being no further business, the meeting
was adjourned.


 






    B-1