Exhibit 10.1


 





AT
THE MARKET OFFERING AGREEMENT


 


September
3, 2015


 


Craig-Hallum
Capital Group LLC


222
South Ninth Street, Suite 350


Minneapolis,
MN 55402


 


Ladies
and Gentlemen:


       


eMagin
Corp., a corporation organized under the laws of Delaware (the “Company”), confirms its agreement (this
“Agreement”) with Craig-Hallum Capital Group LLC (the “Manager”) as follows:


 


1.             Definitions. The terms that follow, when used in this Agreement and any Terms Agreement, shall have the meanings indicated.


 


“Accountants”
  shall have the meaning ascribed to such term in Section 4(m).


 


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


 


“Action”
shall have the meaning ascribed to such term in Section 3(q).


 


“Affiliate”
shall have the meaning ascribed to such term in Section 3(p).


 


“Applicable
Time” shall mean, with respect to any Shares, the time of sale of such Shares pursuant to this Agreement or any relevant
Terms Agreement.


 


“Base
Prospectus” shall mean the base prospectus contained in the Registration Statement at the Execution Time.


 


“Board”
shall have the meaning ascribed to such term in Section 2(b)(iii).


 


“Broker
Fee” shall have the meaning ascribed to such term in Section 2(b)(v).


 


“Business
Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions
or trust companies are authorized or obligated by law to close in New York City.


 


“Commission”
shall mean the Securities and Exchange Commission.


 


“Common
Stock” shall have the meaning ascribed to such term in Section 2.


 


“Common
Stock Equivalents” shall have the meaning ascribed to such term in Section 3(g).


 






    	



    	 



    




 


“Company
Counsel” shall have the meaning ascribed to such term in Section 4(l).


 


“DTC”
shall have the meaning ascribed to such term in Section 2(b)(vii).


 


“Effective
Date” shall mean each date and time that the Registration Statement and any post-effective amendment or amendments thereto
became or becomes effective.


 


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


 


“Execution
Time” shall mean the date and time that this Agreement is executed and delivered by the parties hereto.


 


“Filing
Date” shall have the meaning ascribed to such term in Section 4(w).


 


“Free
Writing Prospectus” shall mean a free writing prospectus, as defined in Rule 405.


 


“GAAP”
shall have the meaning ascribed to such term in Section 3(n).


 


“Incorporated
Documents” shall mean the documents or portions thereof filed with the Commission on or before the Effective Date that
are incorporated by reference in the Registration Statement, Prospectus or the Prospectus Supplement and any documents or portions
thereof filed with the Commission after the Effective Date that are deemed to be incorporated by reference in the Registration
Statement or the Prospectus.


 


“Intellectual
Property Rights” shall have the meaning ascribed to such term in Section 3(v).


 


“Issuer
Free Writing Prospectus” shall mean an issuer free writing prospectus, as defined in Rule 433.


 


“Losses”
shall have the meaning ascribed to such term in Section 7(d).


 


“Material
Adverse Effect” shall have the meaning ascribed to such term in Section 3(b).


 


“Material
Permits” shall have the meaning ascribed to such term in Section 3(t).


 






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“Net
Proceeds” shall have the meaning ascribed to such term in Section 2(b)(v).


 


“Permitted
Free Writing Prospectus” shall have the meaning ascribed to such term in Section 4(g).


 


“Placement”
shall have the meaning ascribed to such term in Section 2(c).


 


“Proceeding”
shall have the meaning ascribed to such term in Section 3(b).


 


“Prospectus”
shall mean the Base Prospectus, as supplemented by the most recently filed Prospectus Supplement (if any).


 


“Prospectus
Supplement” shall mean the prospectus supplement relating to the Shares prepared and filed pursuant to Rule 424(b)
from time to time.


 


“Registration
Statement” shall mean the shelf registration statement (File Number 333-196720) on Form S-3, including exhibits
and financial statements and any prospectus supplement relating to the Shares that is filed with the Commission pursuant to Rule 424(b)
and deemed part of such registration statement pursuant to Rule 430B, as amended on each Effective Date and, in the event
any post-effective amendment thereto becomes effective, shall also mean such registration statement as so amended.


 


“Representation
Date” shall have the meaning ascribed to such term in Section 4(k).


 


“Required
Approvals” shall have the meaning ascribed to such term in Section 3(e).


 


“Rule 158”,
“Rule 163”, “Rule 164”, “Rule 172”, “Rule 173”,
“Rule 405”, “Rule 415”, “Rule 424”, “Rule 430B”
and “Rule 433” refer to such rules under the Act.


 


“Sales
Notice” shall have the meaning ascribed to such term in Section 2(b)(i).


 


“SEC
Reports” shall have the meaning ascribed to such term in Section 3(m).


 


“Settlement
Date” shall have the meaning ascribed to such term in Section 2(b)(vii).


 






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“Subsidiary”
shall have the meaning ascribed to such term in Section 3(a).


 


“Terms
Agreement” shall have the meaning ascribed to such term in Section 2(a).


 


“Time
of Delivery” shall have the meaning ascribed to such term in Section 2(c).


 


“Trading
Market” means NYSE MKT.


 


2.                 
Sale and Delivery of Shares. The Company proposes to issue and sell through or to the Manager, as sales agent and/or principal,
up to $4,500,000 of shares (the “Shares”) of the Company’s common stock, $0.001 par value (“Common
Stock”), from time to time during the term of this Agreement and on the terms set forth herein; provided, however,
that in no event shall the Company issue or sell through the Manager such number of Shares that (a) exceeds the number or
dollar amount of shares of Common Stock registered on the Registration Statement, pursuant to which the offering is being made,
(b) exceeds the number of authorized but unissued shares of Common Stock or (c) would cause the Company or the offering of the
Shares to not satisfy the eligibility and transaction requirements for use of Form S-3 (including, if applicable, General Instruction
I.B.6 of Registration Statement on Form S-3 (the lesser of (a), (b) and (c), the “Maximum Amount”)). Notwithstanding
anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section
2 on the number and aggregate sales price of Shares issued and sold under this Agreement shall be the sole responsibility of the
Company and that Manager shall have no obligation in connection with such compliance.


 


(a)               
Appointment of Manager as Selling Agent; Term Agreement. For purposes of selling the Shares through the Manager, the Company
hereby appoints the Manager as exclusive agent of the Company for the purpose of soliciting purchases of the Shares from the Company
pursuant to this Agreement and the Manager agrees to use its commercially reasonable efforts to sell the Shares on the terms and
subject to the conditions stated herein. The Company agrees that, whenever it determines to sell the Shares directly to the Manager
as principal, it will enter into a separate agreement (each, a “Terms Agreement”) in substantially the form
of Annex I hereto, relating to such sale in accordance with Section 2 of this Agreement.


 


(b)              
Agent Sales. Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth,
the Company will issue and agrees to sell Shares from time to time through the Manager, acting as sales agent, and the Manager
agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, on the following terms:


 






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(i)                
The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Manager on any day that (A) is
a trading day for the Trading Market, (B) the Company has instructed the Manager by telephone (confirmed promptly by electronic
mail) to make such sales (“Sales Notice”) and (C) the Company has satisfied its obligations under Section 6
of this Agreement, provided that the deliveries required under Section 6 shall only be required to be made on the Execution Time
and on a Representation Date on which a material amendment to the Registration Statement or Prospectus is made or the Company
files its Annual Report on Form 10-K or a material amendment thereto under the Exchange Act. The Company will designate the maximum
amount of the Shares to be sold by the Manager daily (subject to the limitations set forth in Section 2(d)) and the minimum price
per Share at which such Shares may be sold. Subject to the terms and conditions hereof, the Manager shall use its commercially
reasonable efforts to sell on a particular day all of the Shares designated for the sale by the Company on such day. The gross
sales price of the Shares sold under this Section 2(b) shall be the market price for shares of the Company’s Common
Stock sold by the Manager under this Section 2(b) on the Trading Market at the time of sale of such Shares.


 


(ii)              
The Company acknowledges and agrees that (A) there can be no assurance that the Manager will be successful in selling the
Shares, (B) the Manager will incur no liability or obligation to the Company or any other person or entity if it does not
sell the Shares for any reason other than a failure by the Manager to use its commercially reasonable efforts consistent with
its normal trading and sales practices and applicable law and regulations to sell such Shares as required under this Agreement,
and (C) 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 pursuant to a Terms Agreement.


 


(iii)            
The Company shall not authorize the issuance and sale of, and the Manager shall not be obligated to use its commercially reasonable
efforts to sell, any Share at a price lower than the minimum price therefor designated from time to time by the Company’s
Board of Directors (the “Board”), or a duly authorized committee thereof, or such duly authorized officers
of the Company, and notified to the Manager in writing. The Company or the Manager may, upon notice to the other party hereto
by telephone (confirmed promptly by electronic mail), suspend the offering of the Shares for any reason and at any time; provided,
however, that such suspension or termination shall not affect or impair the parties’ respective obligations with
respect to the Shares sold hereunder prior to the giving of such notice.


 



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(iv)            
The Manager may sell Shares by any method permitted by law deemed to be an “at the market offering” as defined in
Rule 415 under the Act, including without limitation sales made directly on the Trading Market, on any other existing trading
market for the Common Stock or to or through a market maker. The Manager may also sell Shares in privately negotiated transactions,
provided the Manager receives the Company’s prior written approval for any sales in such type of transactions.


 


(v)              
The compensation to the Manager for sales of the Shares under this Section 2(b) shall be a placement fee of 3.0% (three percent)
of the gross sales price of the Shares sold pursuant to this Section 2(b) (“Broker Fee”). The foregoing rate
of compensation shall not apply when the Manager acts as principal, in which case the Company may sell Shares to the Manager as
principal at a price agreed upon at the relevant Applicable Time pursuant to a Terms Agreement. The remaining proceeds, after
deduction of the Broker Fee and deduction for any transaction fees imposed by any governmental or self-regulatory organization
in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).


 


(vi)            
The Manager shall provide written confirmation (which may be by facsimile or electronic mail) to the Company following the close
of trading on the Trading Market each day in which the Shares are sold under this Section 2(b) setting forth the number of the
Shares sold on such day, the aggregate gross sales proceeds and the Net Proceeds to the Company, and the compensation payable
by the Company to the Manager with respect to such sales.


 


(vii)          
Upon delivery of a Sales Notice, the Company shall issue and deliver (or shall have issued and delivered) the maximum number of
Shares to be sold pursuant to the Sales Notice to the Manager’s account at The Depository Trust Company (“DTC”)
via the DWAC system, which Shares shall be deposited by the Manager in the Company’s account with the Manager. The Manager
shall have no obligation to attempt to sell the Shares until the Company has delivered the Shares to the Manager. Settlement for
sales of the Shares pursuant to this Section 2(b) will occur at 10:00 a.m. (New York City time), or at such time as the Company
and the Manager may mutually agree, on the third Business Day following delivery of the Shares issued pursuant to the Sale Notice
(each such day, a “Settlement Date”). On each Settlement Date, the Manager shall deliver the Net Proceeds from
the sale of the Shares to the Company. If on any Settlement Date not all Shares were sold as issued pursuant to the Sales Notice,
then, at the election of and upon notice from the Company, the Shares shall be applied to a future Settlement Date or returned
to the Company.


 






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(viii)        
At each Applicable Time, Settlement Date, Representation Date and Filing Date, the Company shall be deemed to have affirmed each
representation and warranty contained in this Agreement as if such representation and warranty were made as of such date, modified
as necessary to relate to the Registration Statement and the Prospectus as amended as of such date. Any obligation of the Manager
to use its commercially reasonable efforts to sell the Shares on behalf of the Company 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 6 of this Agreement.


 


(c)               
Term Sales. If the Company wishes to sell the Shares pursuant to this Agreement but other than as set forth in Section
2(b) of this Agreement (each, a “Placement”), it will notify the Manager of the proposed terms of such Placement.
If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole
discretion) or, following discussions with the Company wishes to accept amended terms, the Manager and the Company will enter
into a Terms Agreement setting forth the terms of such Placement. The terms set forth in a Terms Agreement will not be binding
on the Company or the Manager unless and until the Company and the Manager have each executed such Terms Agreement accepting all
of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms
Agreement, the terms of such Terms Agreement will control. A Terms Agreement may also specify certain provisions relating to the
reoffering of such Shares by the Manager. The commitment of the Manager to purchase the Shares pursuant to any Terms Agreement
shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall
be subject to the terms and conditions herein set forth. Each Terms Agreement shall specify the number of the Shares to be purchased
by the Manager pursuant thereto, the price to be paid to the Company for such Shares, any provisions relating to rights of, and
default by, underwriters acting together with the Manager in the reoffering of the Shares, and the time and date (each such time
and date being referred to herein as a “Time of Delivery”) and place of delivery of and payment for such Shares.
Such Terms Agreement shall also specify any requirements for opinions of counsel, accountants’ letters and officers’
certificates pursuant to Section 6 of this Agreement and any other information or documents required by the Manager.


 


(d)              
Maximum Number of Shares. Under no circumstances shall the Company cause or request the offer or sale of any Shares if,
after giving effect to the sale of such Shares, the aggregate amount of Shares sold pursuant to this Agreement would exceed the
lesser of (A) together with all sales of Shares under this Agreement, the Maximum Amount, (B) the amount available for offer and
sale under the currently effective Registration Statement, and (C) the amount authorized from time to time to be issued and sold
under this Agreement by the Company’s board of directors, a duly authorized committee thereof or a duly authorized executive
committee, and notified to the Agent in writing. Under no circumstances shall the Company cause or request the offer or sale of
any Placement Shares pursuant to this Agreement at a price lower than the minimum price authorized from time to time by the Company’s
board of directors, a duly authorized committee thereof or a duly authorized executive committee, and notified to the Agent in
writing. Further, under no circumstances shall the Company cause or permit the aggregate offering amount of Placement Shares sold
pursuant to this Agreement to exceed the Maximum Amount.


 






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(e)               
Regulation M Notice. Unless the exceptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange
Act are satisfied with respect to the Shares, the Company shall give the Manager at least one Business Day’s prior notice
of its intent to sell any Shares in order to allow the Manager time to comply with Regulation M.


 


3.                 
Representations and Warranties. The Company represents and warrants to, and agrees with, the Manager at the Execution Time
and on each such time the following representations and warranties are repeated or deemed to be made pursuant to this Agreement,
as set forth below or in the Registration Statement, the Prospectus or the Incorporated Documents.


 


(a)               
Subsidiaries. All of the direct and indirect subsidiaries (individually, a “Subsidiary”) of the Company
are set forth on Exhibit 21.1 to the Company’s most recent Annual Report on Form 10-K filed with the Commission. The Company
owns, directly or indirectly, all of the capital stock or other equity interests of each Subsidiary free and clear of any “Liens”
(which for purposes of this Agreement shall mean a lien, charge, security interest, encumbrance, right of first refusal, preemptive
right or other restriction), and all 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.


 


(b)              
Organization and Qualification. The Company and each of the Subsidiaries is an entity duly incorporated or otherwise organized,
validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization (as applicable),
with the requisite power and authority to own and use its properties and assets and to carry on its business as currently conducted.
Neither the Company nor any Subsidiary is in violation or default of any of the provisions of its respective certificate or articles
of incorporation, bylaws or other organizational or charter documents. Each of the Company and the Subsidiaries is duly qualified
to conduct business and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature
of the business conducted or property owned by it makes such qualification necessary, except where the failure to be so qualified
or in good standing, as the case may be, could not have reasonably be expected to result in (i) a material adverse effect on the
legality, validity or enforceability of this Agreement, (ii) a material adverse change in the results of operations, assets, business,
prospects or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole, from that set forth in
the Registration Statement, the Base Prospectus, any Prospectus Supplement, or the Incorporated Documents, or (iii) a material
adverse effect on the Company’s ability to perform in any material respect on a timely basis its obligations under this
Agreement (any of (i), (ii) or (iii), a “Material Adverse Effect”) and no “Proceeding” (which
for purposes of this Agreement shall mean any action, claim, suit, investigation or proceeding (including, without limitation,
an investigation or partial proceeding, such as a deposition), whether commenced or threatened) has been instituted in any such
jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority or qualification.


 






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(c)               
Authorization and Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate
the transactions contemplated by this Agreement and otherwise to carry out its obligations hereunder. The execution and delivery
of this Agreement by the Company and the consummation by it of the transactions contemplated hereby have been duly authorized
by all necessary action on the part of the Company and no further action is required by the Company, the Board or its stockholders
in connection herewith other than in connection with the Required Approvals. This Agreement has been duly executed and delivered
by the Company and constitutes the valid and binding obligation of the Company enforceable against the Company in accordance with
its terms except (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium
and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating
to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification
and contribution provisions may be limited by applicable law.


 


(d)              
No Conflicts. The execution, delivery and performance of this Agreement by the Company, the issuance and sale of the Shares
and the consummation by the Company of the other transactions contemplated herein do not and will not (i) conflict with or violate
any provision of the Company’s or any Subsidiary’s certificate or articles of incorporation, bylaws or other organizational
or charter documents, or (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would
become a default) under, result in the creation of any Lien upon any of the properties or assets of the Company or any Subsidiary,
or give to others any rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or
both) of, any agreement, credit facility, debt or other instrument (evidencing a Company or Subsidiary debt or otherwise) or other
understanding to which the Company or any Subsidiary is a party or by which any property or asset of the Company or any Subsidiary
is bound or affected, or (iii) subject to the Required Approvals, conflict with or result in a violation of any law, rule, regulation,
order, judgment, injunction, decree or other restriction of any court or governmental authority to which the Company or a Subsidiary
is subject (including federal and state securities laws and regulations), or by which any property or asset of the Company or
a Subsidiary is bound or affected, except in the case of each of clauses (ii) and (iii), such as could not reasonably be expected
to result in a Material Adverse Effect.


 


(e)               
Filings, Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of,
give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority
or other “Person” (defined as an individual or corporation, partnership, trust, incorporated or unincorporated association,
joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity
of any kind, including the Trading Market) in connection with the execution, delivery and performance by the Company of this Agreement,
other than (i) the filings required by this Agreement, (ii) the filing with the Commission of the Prospectus Supplement, (iii)
the filing of application(s) to and approval by the Trading Market for the listing of the Shares for trading thereon in the time
and manner required thereby, and (iv) such filings as are required to be made under applicable state securities laws and the rules
and regulations of the Financial Industry Regulatory Authority, Inc. (“FINRA”) (collectively, the “Required
Approvals”).


 






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(f)               
Issuance of Shares. The Shares are duly authorized and, when issued and paid for in accordance with this Agreement, will
be duly and validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company. The Company has
reserved from its duly authorized capital stock the maximum number of shares of Common Stock issuable pursuant to this Agreement.
The issuance by the Company of the Shares has been registered under the Act and all of the Shares are freely transferable and
tradable by the purchasers thereof without restriction (other than any restrictions arising solely from an act or omission of
such a purchaser). The Shares are being issued pursuant to the Registration Statement and the issuance of the Shares has been
registered by the Company under the Act. The “Plan of Distribution” section within the Registration Statement
permits the issuance and sale of the Shares as contemplated by this Agreement. Upon receipt of the Shares, the purchasers of such
Shares will have good and marketable title to such Shares and the Shares will be freely tradable on the Trading Market.


 


(g)              
Capitalization. The capitalization of the Company is as set forth in the Registration Statement, the Base Prospectus, and
the Prospectus Supplement. The Company has not issued any capital stock since its most recently filed periodic report under the
Exchange Act, other than pursuant to the exercise of employee stock options under the Company’s stock option plans, the
issuance of shares of Common Stock to employees pursuant to the Company’s employee stock purchase plan and pursuant to the
conversion or exercise of securities exercisable, exchangeable or convertible into Common Stock (“Common Stock Equivalents”).
No Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the
transactions contemplated by this Agreement. Except (i) pursuant to the Company’s stock option plans, (ii) pursuant to agreements
or instruments filed as exhibits to Incorporated Documents or (iii) as disclosed in the SEC Reports, there are no outstanding
options, warrants, script rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities,
rights or obligations convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe for or
acquire, any shares of Common Stock, or contracts, commitments, understandings or arrangements by which the Company or any Subsidiary
is or may become bound to issue additional shares of Common Stock or Common Stock Equivalents. The issuance and sale of the Shares
will not obligate the Company to issue shares of Common Stock or other securities to any Person and will not result in a right
of any holder of Company securities to adjust the exercise, conversion, exchange or reset price under such securities. All of
the outstanding shares of capital stock of the Company are validly issued, fully paid and nonassessable, have been issued in compliance
with all federal and state securities laws, and none of such outstanding shares was issued in violation of any preemptive rights
or similar rights to subscribe for or purchase securities. There are no stockholders agreements, voting agreements or other similar
agreements with respect to the Company’s capital stock to which the Company is a party or, to the knowledge of the Company,
between or among any of the Company’s stockholders.


 


(h)              
Registration Statement. The Company meets the requirements for use of Form S-3 under the Act and has prepared and
filed with the Commission the Registration Statement, including a related Base Prospectus, for registration under the Act of the
offering and sale of the Shares. Such Registration Statement is effective and available for the offer and sale of the Shares as
of the date hereof. As filed, the Base Prospectus contains all information required by the Act and the rules thereunder, and,
except to the extent the Manager shall agree in writing to a modification, shall be in all substantive respects in the form furnished
to the Manager prior to the Execution Time or prior to any such time this representation is repeated or deemed to be made. The
Registration Statement, at the Execution Time, each such time this representation is repeated or deemed to be made, and at all
times during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172,
173 or any similar rule) in connection with any offer or sale of the Shares, meets the requirements set forth in Rule 415(a)(1)(x).
The initial Effective Date of the Registration Statement was not earlier than the date three years before the Execution Time.






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(i)                
Accuracy of 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 the rules thereunder, and none of the Incorporated Documents,
when they were filed with the Commission, contained any untrue statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in 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 Base Prospectus, the Prospectus Supplement
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 the rules thereunder, as applicable, 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 light of the circumstances under which they were made, not
misleading.


 


(j)                
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
Execution Time 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),
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.


 


(k)              
Free Writing Prospectus. The Company is eligible to use Issuer Free Writing Prospectuses. Each Issuer Free Writing Prospectus
does not include any information the substance of which conflicts with the information contained in the Registration Statement,
including any Incorporated Documents and any prospectus supplement deemed to be a part thereof that has not been superseded or
modified; and each Issuer Free Writing Prospectus does 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. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based
upon and in conformity with written information furnished to the Company by the Manager specifically for use therein. Any Issuer
Free Writing Prospectus that the Company is required to file pursuant to Rule 433(d) has been, or will be, filed with the Commission
in accordance with the requirements of the Act and the rules thereunder. Each Issuer Free Writing Prospectus that the Company
has filed, or is required to file, pursuant to Rule 433(d) or that was prepared by or behalf of or used by the Company complies
or will comply in all material respects with the requirements of the Act and the rules thereunder. The Company will not, without
the prior consent of the Manager, prepare, use or refer to, any Issuer Free Writing Prospectuses.


 


(l)                
Proceedings Related to Registration Statement. The Registration Statement is not the subject of a pending proceeding or
examination under Section 8(d) or 8(e) of the Act, and the Company is not the subject of a pending proceeding under Section 8A
of the Act in connection with the offering of the Shares. The Company has not received any notice that the Commission has issued
or intends to issue a stop-order with respect to the Registration Statement or that the Commission otherwise has suspended or
withdrawn the effectiveness of the Registration Statement, either temporarily or permanently, or intends or has threatened in
writing to do so.


 


(m)            
SEC Reports. The Company has complied in all material respects with requirements to file all reports, schedules, forms,
statements and other documents required to be filed by it under the Act and the Exchange Act, including pursuant to Section 13(a)
or 15(d) thereof, for the two years preceding the date hereof (or such shorter period as the Company was required by law to file
such material) (the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, together
with the Prospectus and the Prospectus Supplement, being collectively referred to herein as the “SEC Reports”)
on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration
of any such extension.


 


(n)              
Financial Statements. The consolidated financial statements incorporated by reference in the Registration Statement, the
Prospectus or the Incorporated Documents and any amendments thereof or supplements thereto comply in all material respects with
applicable accounting requirements and the rules and regulations of the Commission with respect thereto as in effect at the time
of filing or as amended or corrected in a subsequent filing. Such financial statements have been prepared in accordance with United
States generally accepted accounting principles applied on a consistent basis during the periods involved (“GAAP”),
except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements
may not contain all footnotes required by GAAP, and fairly present in all material respects the financial position of the Company
and its consolidated Subsidiaries as of and for the dates thereof and the results of operations and cash flows for the periods
then ended, subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments.






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(o)              
 Accountants. The Company’s accountants are McGladrey LLP. To the knowledge of the Company, such accountants, who
the Company expects will express their opinion with respect to the financial statements to be included in the Company’s
next Annual Report on Form 10-K, are a registered public accounting firm as required by the Act.


 


(p)              
Material Adverse Events. Since the date of the latest audited financial statements included within the SEC Reports, except
as specifically disclosed in a subsequent SEC Report filed prior to the date hereof, (i) there has been no event, occurrence or
development that has had or that could reasonably be expected to result in a Material Adverse Effect, (ii) the Company has not
incurred any liabilities (contingent or otherwise) other than (A) trade payables and accrued expenses incurred in the ordinary
course of business consistent with past practice and (B) liabilities not required to be reflected in the Company’s financial
statements pursuant to GAAP or required to be disclosed in filings made with the Commission, (iii) the Company has not altered
its method of accounting, (iv) the Company has not declared or made any dividend or distribution of cash or other property to
its stockholders or purchased, redeemed or made any agreements to purchase or redeem any shares of its capital stock and (v) the
Company has not issued any equity securities to any officer, director or “Affiliate” (defined as any Person
that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with
a Person, as such terms are used in and construed under Rule 144 under the Act), except pursuant to existing Company stock option
plans. The Company does not have pending before the Commission any request for confidential treatment of information. No event,
liability or development has occurred or exists with respect to the Company or its Subsidiaries or their respective business,
properties, operations or financial condition, that would be required to be disclosed by the Company under applicable securities
laws at the time this representation is deemed made that has not been publicly disclosed at least 1 Trading Day prior to the date
that this representation is deemed made.


 


(q)              
Litigation. There is no action, suit, inquiry, notice of violation, Proceeding or investigation pending or, to the knowledge
of the Company, threatened against or affecting the Company, any Subsidiary or any of their respective properties before or by
any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign)
(collectively, an “Action”) which (i) adversely affects or challenges the legality, validity or enforceability
of this Agreement or the Shares or (ii) could, if there were an unfavorable decision, reasonably be expected to result in a Material
Adverse Effect. Neither the Company nor any Subsidiary, nor, to the knowledge of the Company, any director or officer thereof,
is or has been the subject of any Action involving a claim of violation of or liability under federal or state securities laws
or a claim of breach of fiduciary duty. There has not been, and to the knowledge of the Company, there is not pending or contemplated,
any investigation by the Commission involving the Company or any current or former director or officer of the Company. The Commission
has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company or
any Subsidiary under the Exchange Act or the Act.


 


(r)                
Labor Relations. No material labor dispute exists or, to the knowledge of the Company, is imminent with respect to any
of the employees of the Company, which could reasonably be expected to result in a Material Adverse Effect. None of the Company’s
or its Subsidiaries’ employees is a member of a union that relates to such employee’s relationship with the Company
or such Subsidiary, and neither the Company nor any of its Subsidiaries is a party to a collective bargaining agreement, and the
Company and its Subsidiaries believe that their relationships with their employees are good. No executive officer, to the knowledge
of the Company, is, or is now expected to be, in violation of any material term of any employment contract, confidentiality, disclosure
or proprietary information agreement or non-competition agreement, or any other contract or agreement or any restrictive covenant
in favor of any third party, and the continued employment of each such executive officer does not subject the Company or any of
its Subsidiaries to any liability with respect to any of the foregoing matters. The Company and its Subsidiaries are in compliance
with all U.S. federal, state, local and foreign laws and regulations relating to employment and employment practices, terms and
conditions of employment and wages and hours, except where the failure to be in compliance could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.


 


(s)               
No Existing Defaults. Neither the Company nor any Subsidiary (i) is in default under or in violation of (and no event has
occurred that has not been waived that, with notice or lapse of time or both, would result in a default by the Company or any
Subsidiary under), nor has the Company or any Subsidiary received notice of a claim that it is in default under or that it is
in violation of, any indenture, loan or credit agreement or any other agreement or instrument to which it is a party or by which
it or any of its properties is bound (whether or not such default or violation has been waived), (ii) is in violation of any order
of any court, arbitrator or governmental body, or (iii) is or has been in violation of any statute, rule or regulation of any
governmental authority, including without limitation all foreign, federal, state and local laws relating to taxes, environmental
protection, occupational health and safety, product quality and safety and employment and labor matters, except in each case as
could not reasonably be expected to result in a Material Adverse Effect.


 


(t)                
Regulatory Permits. The Company and the Subsidiaries possess all certificates, authorizations and permits issued by the
appropriate federal, state, local or foreign regulatory authorities necessary to conduct their respective businesses as described
in the Registration Statement, the Base Prospectus, and any Prospectus Supplement, except where the failure to possess such permits
could not reasonably be expected to result in a Material Adverse Effect (“Material Permits”), and neither the
Company nor any Subsidiary has received any notice of proceedings relating to the revocation or modification of any Material Permit.
For clarity, the Company has not received the approval of any regulatory agency to market any of its product candidates.






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(u)              
Title to Assets. The Company and the Subsidiaries have good and marketable title in fee simple to all real property owned
by them that is material to the business of the Company and the Subsidiaries and good and marketable title in all personal property
owned by them that is material to the business of the Company and the Subsidiaries, in each case free and clear of all Liens,
except for Liens as do not materially affect the value of such property and do not materially interfere with the use made and
proposed to be made of such property by the Company and the Subsidiaries and Liens for the payment of federal, state or other
taxes, the payment of which is neither delinquent nor subject to penalties. Any real property and facilities held under lease
by the Company and the Subsidiaries are held by them under valid, subsisting and enforceable leases of which the Company and the
Subsidiaries are in compliance, except where such non-compliance would not reasonably be expected to have a Material Adverse Effect.


 


(v)              
Patents and Trademarks. The Company and the Subsidiaries have, or have rights to use, all patents, patent applications,
trademarks, trademark applications, service marks, trade names, trade secrets, inventions, copyrights, licenses and other intellectual
property rights and similar rights necessary or material for use in connection with their respective businesses as described in
the Registration Statement, the Base Prospectus, or any Prospectus Supplement and which the failure to so have could reasonably
be expected to have a Material Adverse Effect (collectively, the “Intellectual Property Rights”). None of,
and neither the Company nor any Subsidiary has received a notice (written or otherwise) that any of, the Intellectual Property
Rights has expired, terminated or been abandoned, or is expected to expire or terminate or be abandoned, within two (2) years
from the date of this Agreement. Neither the Company nor any Subsidiary has received, since the date of the latest audited financial
statements included within the SEC Reports, a notice (written or otherwise) of a claim or otherwise has any knowledge that the
Intellectual Property Rights violate or infringe upon the rights of any Person, except as would not have a Material Adverse Effect.
To the knowledge of the Company, all such Intellectual Property Rights are enforceable and there is no existing infringement by
another Person of any of the Intellectual Property Rights. The Company and its Subsidiaries have taken reasonable security measures
to protect the secrecy, confidentiality and value of all of their Intellectual Property Rights, except where failure to do so
could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.


 


(w)            
Insurance. The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such
losses and risks and in such amounts as are prudent and customary for companies of similar size as the Company in the businesses
in which the Company and the Subsidiaries are engaged, including, but not limited to, directors and officers insurance coverage.
To the knowledge of the Company, such insurance contracts and policies are accurate and complete. Neither the Company nor any
Subsidiary has any 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 without a significant
increase in cost.


 


(x)              
Transactions With Affiliates and Employees. Except as set forth in the Registration Statement, the Base Prospectus, or
any Prospectus Supplement, none of the officers or directors of the Company and, to the knowledge of the Company, none of the
employees of the Company is presently a party to any transaction with the Company or any Subsidiary (other than for services as
employees, officers and directors), including any contract, agreement or other arrangement providing for the furnishing of services
to or by, providing for rental of real or personal property to or from, or otherwise requiring payments to or from any officer,
director or such employee or, to the knowledge of the Company, any entity in which any officer, director, or any such employee
has a substantial interest or is an officer, director, trustee or partner, in each case in excess of $120,000, other than (i)
for payment of salary or consulting fees for services rendered, (ii) reimbursement for expenses incurred on behalf of the Company
and (iii) for other employee benefits, including stock option agreements under any stock option plan of the Company.


 






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(y)              
Sarbanes Oxley; Internal Accounting Controls. The Company is in compliance with any and all applicable requirements of
the Sarbanes-Oxley Act of 2002 that are effective as of the date hereof, and any and all applicable rules and regulations promulgated
by the Commission thereunder that are effective as of the date hereof and as of each Closing Date. The Company and the Subsidiaries
maintain a system of internal accounting controls sufficient to provide reasonable assurance that: (i) transactions are executed
in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP and to maintain asset accountability, (iii) access to assets is permitted
only in accordance with management’s general or specific authorization, and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
The Company has established disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for
the Company and designed such disclosure controls and procedures to ensure that information required to be disclosed by the Company
in the reports it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods
specified in the Commission’s rules and forms. The Company’s certifying officers have evaluated the effectiveness
of the Company’s disclosure controls and procedures as of the end of the period covered by the Company’s most recently
filed periodic report under the Exchange Act (such date, the “Evaluation Date”). The Company presented in its
most recently filed periodic report under the Exchange Act the conclusions of the certifying officers about the effectiveness
of the disclosure controls and procedures based on their evaluations as of the Evaluation Date. Since the Evaluation Date, there
have been no changes in the Company’s internal control over financial reporting (as such term is defined in the Exchange
Act) that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial
reporting.


 


(z)               
Finder’s Fees. Other than payments to be made to the Manager, no brokerage or finder’s fees or commissions
are or will be payable by the Company to any broker, financial advisor or consultant, finder, placement agent, investment banker,
bank or other Person with respect to the transactions contemplated by this Agreement. The Manager shall have no obligation with
respect to any fees or with respect to any claims made by or on behalf of other Persons for fees of a type contemplated in this
Section that may be due in connection with the transactions contemplated by this Agreement.


 


(aa)           
No Other Sales Agency Agreement. The Company has not entered into any other sales agency agreements or other similar arrangements
with any agent or any other representative in respect of at the market offerings of the Shares.


 


(bb)          
Regulation M Compliance. The Company has not, and to its knowledge no one acting on its behalf has, (i) taken, directly
or indirectly, any action designed to cause or to result in the stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of any of the Shares, (ii) sold, bid for, purchased, or paid any compensation for
soliciting purchases of, any of the Shares or (iii) paid or agreed to pay to any person any compensation for soliciting another
to purchase any other securities of the Company, other than, in the case of clauses (ii) and (iii), compensation paid to the Manager
in connection with the placement of the Shares.


 






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(cc)           
Listing and Maintenance Requirements. The issuance and sale of the Shares as contemplated in this Agreement does not contravene
the rules and regulations of the Trading Market. The Common Stock is registered pursuant to Section 12(b) of the Exchange Act,
and the Company has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration
of the Common Stock under the Exchange Act nor has the Company received any notification that the Commission is contemplating
terminating such registration. Except as disclosed in the Registration Statement, the Base Prospectus, or any Prospectus Supplement,
the Company has not, in the 12 months preceding the date hereof, received notice from any Trading Market on which the Common Stock
is or has been listed or quoted to the effect that the Company is not in compliance with the listing or maintenance requirements
of such Trading Market. The Company has no reason to believe that it will not in the foreseeable future continue to be, in compliance
with all such listing and maintenance requirements.


 


(dd)         
Application of Takeover Protections. Except as set forth in the Registration Statement, the Base Prospectus, any Prospectus
Supplement or the Prospectus, the Company and its Board have taken all necessary action, if any, in order to render inapplicable
any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or other
similar anti-takeover provision under the Company’s Certificate of Incorporation (or similar charter documents) or the laws
of its state of incorporation that is or could become applicable to the purchasers of the Shares.


 


(ee)           
Investment Company. The Company is not, and is not an Affiliate of, and immediately after receipt of payment for the Shares,
will not be or be an Affiliate of, an “investment company” within the meaning of the Investment Company Act of 1940,
as amended. The Company currently intends to conduct its business in a manner so that it will not become subject to the Investment
Company Act of 1940, as amended.


 


(ff)            
Solvency. Based on the consolidated financial condition of the Company as of the Effective Date (i) the fair saleable value
of the Company’s assets exceeds the amount that will be required to be paid on or in respect of the Company’s existing
debts and other liabilities (including known contingent liabilities) as they mature, (ii) the Company’s assets do not constitute
unreasonably small capital to carry on its business as now conducted and as proposed to be conducted including its capital needs
taking into account the particular capital requirements of the business conducted by the Company, and projected capital requirements
and capital availability thereof, and (iii) the current cash flow of the Company, together with the proceeds the Company would
receive, were it to liquidate all of its assets, after taking into account all anticipated uses of the cash, would be sufficient
to pay all amounts on or in respect of its when such amounts are required to be paid. Neither the Company nor any Subsidiary is
in default with respect to any indebtedness for borrowed money.


 


(gg)          
Tax Status. Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result
in a Material Adverse Effect, the Company and each Subsidiary (i) has made or filed all United States federal and state income
and all foreign income and franchise tax returns, reports and declarations required by any jurisdiction to which it is subject,
(ii) has paid all taxes and other governmental assessments and charges that are material in amount, shown or determined to be
due on such returns, reports and declarations and (iii) has set aside on its books provision reasonably adequate for the payment
of all material taxes for periods subsequent to the periods to which such returns, reports or declarations apply. There are no
unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company
or of any Subsidiary know of no basis for any such claim.


 


(hh)          
Foreign Corrupt Practices. Neither the Company, nor to the knowledge of the Company, any agent or other person acting on
behalf of the Company, has (i) directly or indirectly, used any funds for unlawful contributions, gifts, entertainment or other
unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful payment to foreign or domestic government
officials or employees or to any foreign or domestic political parties or campaigns from corporate funds, (iii) failed to disclose
fully any contribution made by the Company (or made by any person acting on its behalf of which the Company is aware) which is
in violation of law, or (iv) violated in any material respect any provision of the Foreign Corrupt Practices Act of 1977, as amended.






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(ii)              
FINRA Member Shareholders. Except for Paul Cronson, there are no affiliations with any FINRA member firm among the Company’s
officers, directors or, to the knowledge of the Company, any five percent (5%) or greater stockholder of the Company, except as
set forth in the Registration Statement, the Base Prospectus, any Prospectus Supplement or the Prospectus.


 


4.                 
Agreements. The Company agrees with the Manager that:


 


(a)               
Right to Review Amendments and Supplements to Registration Statement and Prospectus. During any period when the delivery
of a prospectus relating to the Shares is required (including in circumstances where such requirement may be satisfied pursuant
to Rule 172, 173 or any similar rule) to be delivered under the Act in connection with the offering or the sale of Shares,
the Company will not file any amendment to the Registration Statement or supplement (including any Prospectus Supplement) to the
Base Prospectus unless the Company has furnished to the Manager a copy for its review prior to filing and will not file any such
proposed amendment or supplement to which the Manager reasonably objects. The Company has properly completed the Prospectus, in
a form approved by the Manager, and filed such Prospectus, as amended at the Execution Time, with the Commission pursuant to the
applicable paragraph of Rule 424(b) by the Execution Time and will cause any supplement to the Prospectus to be properly
completed, in a form approved by the Manager, and will file such supplement with the Commission pursuant to the applicable paragraph
of Rule 424(b) within the time period prescribed thereby and will provide evidence reasonably satisfactory to the Manager
of such timely filing. The Company will promptly advise the Manager (i) when the Prospectus, and any supplement thereto,
shall have been filed (if required) with the Commission pursuant to Rule 424(b), (ii) when, during any period when the
delivery of a prospectus (whether physically or through compliance with Rule 172, 173 or any similar rule) is required under
the Act in connection with the offering or sale of the Shares, any amendment to the Registration Statement shall have been filed
or become effective (other than any annual report of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act),
(iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b)
Registration Statement, or for any supplement to the Prospectus or for any additional information, (iv) of the issuance by
the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its
use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the institution or threatening
of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the
occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or
notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection,
including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best
efforts to have such amendment or new registration statement declared effective as soon as practicable.


 


(b)              
Subsequent Events. If, at any time on or after an Applicable Time but prior to the related Settlement Date, any event occurs
as a result of which the Registration Statement or Prospectus would include any untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein in the light of the circumstances under which they were made
or the circumstances then prevailing not misleading, the Company will (i) notify promptly the Manager so that any use of
the Registration Statement or Prospectus may cease until such are amended or supplemented; (ii) amend or supplement the Registration
Statement or Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Manager
in such quantities as the Manager may reasonably request.


 


(c)               
Notification of Subsequent Filings. During any period when the delivery of a prospectus relating to the Shares is required
(including in circumstances where such requirement may be satisfied pursuant to Rule 172, 173 or any similar rule) to be
delivered under the Act, any event occurs as a result of which the Prospectus as then supplemented would include any untrue statement
of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances
under which they were made at such time not misleading, or if it shall be necessary to amend the Registration Statement, file
a new registration statement or supplement the Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder,
including in connection with use or delivery of the Prospectus, the Company promptly will (i) notify the Manager of any such
event, (ii) subject to Section 4(a), prepare and file with the Commission an amendment or supplement or new registration
statement which will correct such statement or omission or effect such compliance, (iii) use its best efforts to have any
amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid
any disruption in use of the Prospectus and (iv) supply any supplemented Prospectus to the Manager in such quantities as
the Manager may reasonably request.


 






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(d)              
Earnings Statements. As soon as practicable, the Company will make generally available to its security holders and to the
Manager an earnings statement or statements of the Company and its Subsidiaries which will satisfy the provisions of Section 11(a)
of the Act and Rule 158.


 


(e)               
Delivery of Registration Statement. Upon the request of the Manager, the Company will furnish to the Manager and counsel
for the Manager, without charge, signed copies of the Registration Statement (including exhibits thereto) and, so long as delivery
of a prospectus by the Manager or dealer may be required by the Act (including in circumstances where such requirement may be
satisfied pursuant to Rule 172, 173 or any similar rule), as many copies of the Prospectus and each Issuer Free Writing Prospectus
and any supplement thereto as the Manager may reasonably request. The Company will pay the expenses of printing or other production
of all documents relating to the offering.


 


(f)               
Qualification of Shares. The Company will arrange, if necessary, for the qualification of the Shares for sale under the
laws of such jurisdictions as the Manager may designate and will maintain such qualifications in effect so long as required for
the distribution of the Shares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction
where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those
arising out of the offering or sale of the Shares, in any jurisdiction where it is not now so subject.


 


(g)              
Free Writing Prospectus. The Company agrees that, unless it has or shall have obtained the prior written consent of the
Manager, and the Manager agrees with the Company that, unless it has or shall have obtained, as the case may be, the prior written
consent of the Company, it has not made and will not make any offer relating to the Shares that would constitute an Issuer Free
Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required
to be filed by the Company with the Commission or retained by the Company under Rule 433. Any such free writing prospectus
consented to by the Manager or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.”
The Company agrees that (i) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as
an Issuer Free Writing Prospectus and (ii) it has complied and will comply, as the case may be, with the requirements of
Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission,
legending and record keeping.


 


(h)              
Subsequent Equity Issuances. For a period of six months from the date of this Agreement, the Company will not offer, sell,
issue, contract to sell, contract to issue or otherwise dispose of, directly or indirectly, any other shares of Common Stock or
any Common Stock Equivalents (other than the Shares) on substantially similar terms and conditions as set forth in this Agreement
; provided, however, that (i) the Company may issue and sell Common Stock pursuant to any employee stock option
plan, stock ownership plan or dividend reinvestment plan of the Company in effect at the Execution Time, (ii) the Company may
issue Common Stock issuable upon the conversion or exercise of Common Stock Equivalents outstanding at the Execution Time and
(iii) the Company may enter into a private placement transaction for the issuance and sale of Common Stock or Common Stock Equivalents
for its Virtual Vision subsidiary on or after the Execution Time.


 


(i)                
Market Manipulation. Until the termination of this Agreement, the Company will not take, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise,
stabilization or manipulation in violation of the Act, Exchange Act or the rules and regulations thereunder of the price of any
security of the Company to facilitate the sale or resale of the Shares or otherwise violate any provision of Regulation M under
the Exchange Act.


 


(j)                
Notification of Incorrect Certificate. The Company will, at any time during the term of this Agreement, as supplemented
from time to time, advise the Manager immediately after it shall have received notice or obtained knowledge thereof, of any information
or fact that would alter or affect any opinion, certificate, letter and other document provided to the Manager pursuant to Section 6
herein.


 






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(k)              
Certification of Accuracy of Disclosure. 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 the termination of a suspension of sales hereunder
lasting more than 30 trading days), and each time that (i) the Registration Statement or Prospectus shall be amended or supplemented,
other than by means of Incorporated Documents, (ii) the Company files its Annual Report on Form 10-K under the Exchange Act, (iii)
the Company files its quarterly reports on Form 10-Q under the Exchange Act, (iv) the Company files a Current Report on Form 8-K
containing amended financial information (other than information that is furnished and not filed), if the Manager reasonably determines
that the information in such Form 8-K is material, or (v) the Shares are delivered to the Manager as principal at the Time of
Delivery pursuant to a Terms Agreement (such commencement or recommencement date and each such date referred to in (i), (ii),
(iii), (iv) and (v) above, a “Representation Date”), unless waived by the Manager, the Company shall furnish
or cause to be furnished to the Manager forthwith a certificate dated and delivered on the Representation Date, in form reasonably
satisfactory to the Manager to the effect that the statements contained in the certificate referred to in Section 6 of this Agreement
which were last furnished to the Manager are true and correct at the Representation Date, as though made at and as of such date
(except that such statements shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented
to such date) or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in said Section
6, modified as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to the date of
delivery of such certificate.


 


(l)                
Bring Down Opinions; Negative Assurance. At each Representation Date, unless waived by the Manager, the Company shall furnish
or cause to be furnished forthwith to the Manager and to counsel to the Manager a written opinion of counsel to the Company (“Company
Counsel”) addressed to the Manager and dated and delivered on such Representation Date, in form and substance reasonably
satisfactory to the Manager, including a negative assurance representation.


 


(m)            
Auditor Bring Down “Comfort” Letter. At each Representation Date, unless waived by the Manager, the Company
shall cause (1) the Company’s auditors (the “Accountants”), or other independent accountants satisfactory
to the Manager forthwith to furnish the Manager a letter, and (2) the Chief Financial Officer of the Company forthwith to
furnish the Manager a certificate, in each case dated on such Representation Date, in form satisfactory to the Manager, of the
same tenor as the letters and certificate referred to in Section 6 of this Agreement but modified to relate to the Registration
Statement and the Prospectus, as amended and supplemented to the date of such letters and certificate; provided, however,
that the Company will not be required to cause the Accountants to furnish such letters to the Manager in connection with the filing
of a Current Report on Form 8-K unless (i) such Current Report on Form 8-K is filed at any time during which a prospectus
relating to the Shares is required to be delivered under the Act and (ii) the Manager has requested such letter based upon
the event or events reported in such Current Report on Form 8-K.


 


(n)              
Due Diligence Session. 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 the termination of a suspension of sales hereunder lasting more than
30 trading days), and at each Representation Date, the Company will conduct a due diligence session, in form and substance, reasonably
satisfactory to the Manager, which shall include representatives of management and Accountants. The Company shall cooperate timely
with any reasonable due diligence request from or review conducted by the Manager or its agents from time to time in connection
with the transactions contemplated by this Agreement, including, without limitation, providing information and available documents
and access to appropriate corporate officers and the Company’s agents during regular business hours and at the Company’s
principal offices, and timely furnishing or causing to be furnished such certificates, letters and opinions from the Company,
its officers and its agents, as the Manager may reasonably request. The Company shall reimburse the Manager for Manager’s
counsel’s time in each such due diligence update session, up to a maximum of $5,000 per quarter, plus any incidental expense
incurred by the Manager in connection therewith.


 






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(o)              
Acknowledgment of Trading. The Company 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 or pursuant
to a Terms Agreement.


 


(p)              
Disclosure of Shares Sold. The Company will disclose in its Annual Reports on Form 10-K and Quarterly Reports on Form 10-Q,
as applicable, the number of Shares sold through the Manager under this Agreement, the Net Proceeds to the Company and the compensation
paid by the Company with respect to sales of Shares pursuant to this Agreement during the relevant quarter.


 


(q)              
Rescission Right. If to the knowledge of the Company, the conditions set forth in Section 6 shall not have been satisfied
as of the applicable Settlement Date, the Company will offer to any person who has agreed to purchase Shares from the Company
as the result of an offer to purchase solicited by the Manager the right to refuse to purchase and pay for such Shares.


 


(r)                
Bring Down of Representations and Warranties. Each acceptance by the Company of an offer to purchase the Shares hereunder,
and each execution and delivery by the Company of a Terms Agreement, 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 or of such Terms Agreement 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 Settlement Date for the Shares relating to such acceptance or as of the Time
of Delivery relating to such sale, as the case may be, as though made at and as of such date (except that such representations
and warranties shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented relating
to such Shares).


 


(s)               
Reservation of Shares. The Company shall ensure that there are at all times sufficient shares of Common Stock to provide
for the issuance, free of any preemptive rights, out of its authorized but unissued shares of Common Stock or shares of Common
Stock held in treasury, of the maximum aggregate number of Shares authorized for issuance by the Board pursuant to the terms of
this Agreement. The Company will use its commercially reasonable efforts to cause the Shares to be listed for trading on the Trading
Market and to maintain such listing.


 


(t)                
Obligation Under Exchange Act. During any period when the delivery of a prospectus relating to the Shares is required (including
in circumstances where such requirement may be satisfied pursuant to Rule 172, 173 or any similar rule) to be delivered under
the Act, the Company will file all documents required to be filed with the Commission pursuant to the Exchange Act within the
time periods required by the Exchange Act and the regulations thereunder.


 


(u)              
DTC Facility. The Company shall cooperate with Manager and use its reasonable efforts to permit the Shares to be eligible
for clearance and settlement through the facilities of DTC.


 


(v)              
Use of Proceeds. The Company will apply the Net Proceeds from the sale of the Shares in the manner set forth in the Prospectus
or Prospectus Supplement.


 


(w)            
Filing of Prospectus Supplement. On or prior to the earlier of (i) the date on which the Company shall file a Quarterly
Report on Form 10-Q or an Annual Report on Form 10-K in respect of any fiscal quarter or fiscal year in which sales of Shares
were made by the Manager pursuant to Section 2(b) of this Agreement and (ii) the date on which the Company shall be obligated
to file such document referred to in clause (i) in respect of such quarter or fiscal year (each such date, and any date on
which an amendment to any such document is filed, a “Filing Date”), the Company will file a prospectus supplement
with the Commission under the applicable paragraph of Rule 424(b), which prospectus supplement will set forth, with regard
to such quarter, the number of the Shares sold through the Manager as agent pursuant to Section 2(b) of this Agreement, the Net
Proceeds to the Company and the compensation paid by the Company with respect to such sales of the Shares pursuant to Section
2(b) of this Agreement and deliver such number of copies of each such prospectus supplement to the Trading Market as are required
by such exchange.


 






    	19



    	 



    




 


(x)              
Additional Registration Statement. To the extent that the Registration Statement is not available for the sales of the
Shares as contemplated by this Agreement (other than as a result of reaching the limitation set forth in General Instruction I.B.6
of Form S-3), the Company shall file a new registration statement with respect to any additional shares of Common Stock necessary
to complete such sales of the Shares and shall cause such registration statement to become effective as promptly as practicable.
After the effectiveness of any such registration statement, all references to “Registration Statement” included
in this Agreement shall be deemed to include such new registration statement, including all documents incorporated by reference
therein pursuant to Item 12 of Form S-3, and all references to “Base Prospectus” included in this Agreement
shall be deemed to include the final form of prospectus, including all documents incorporated therein by reference, included in
any such registration statement at the time such registration statement became effective.


 


5.                 
Payment of Expenses. The Company agrees to pay the costs and expenses incident to the performance of its obligations under
this Agreement, whether or not the transactions contemplated hereby are consummated, including without limitation: (i) the
preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements
and exhibits thereto), the Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them;
(ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging)
of such copies of the Registration Statement, the Prospectus, and each Issuer Free Writing Prospectus, and all amendments or supplements
to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Shares;
(iii) the preparation, printing, authentication, issuance and delivery of certificates for the Shares, including any stamp
or transfer taxes in connection with the original issuance and sale of the Shares; (iv) the printing (or reproduction) and
delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered
in connection with the offering of the Shares; (v) the registration of the Shares under the Exchange Act, if applicable,
and the listing of the Shares on the Trading Market; (vi) any registration or qualification of the Shares for offer and sale
under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel
for the Manager relating to such registration and qualification); (vii) the transportation and other expenses incurred by
or on behalf of Company representatives in connection with presentations to prospective purchasers of the Shares; (viii) the
fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel)
for the Company; (ix) the filing fee under FINRA Rule 5110; (x) the reasonable fees and expenses of the Manager’s counsel,
not to exceed $65,000 (excluding any periodic due diligence fees provided for under Section 4(n), $60,000 of which shall be paid
at the Execution Time and the balance to be paid upon approval of the Manager’s investment committee; and (xi) all other
costs and expenses incident to the performance by the Company of its obligations hereunder.


 


6.                 
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement
shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as
of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to
the performance by the Company of its obligations hereunder and (iii) the following additional conditions:


 


(a)               
Filing of Prospectus Supplement. The Prospectus, and any supplement thereto, required by Rule 424 to be filed with
the Commission have been filed in the manner and within the time period required by Rule 424(b) with respect to any sale
of Shares; each Prospectus Supplement shall have been filed in the manner required by Rule 424(b) within the time period
required hereunder and under the Act; any other material required to be filed by the Company pursuant to Rule 433(d) under
the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433;
and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been
issued and no proceedings for that purpose shall have been instituted or threatened.






    	20



    	 



    




 


(b)              
Delivery of Opinion. The Company shall have caused the Company Counsel to furnish to the Manager, requested by the Manager
and upon reasonable advance notice in connection with any offering of the Shares, its opinion and negative assurance statement,
dated as of such date and addressed to the Manager in form and substance acceptable to the Manager.


 


(c)               
Delivery of Officer’s Certificate. The Company shall have furnished or caused to be furnished to the Manager, to
the extent requested by the Manager and upon reasonable advance notice in connection with any offering of the Shares, a certificate
of the Company signed by the Chief Executive Officer or the President and the principal financial or accounting officer of the
Company, dated as of such date, to the effect that the signers of such certificate have carefully examined the Registration Statement,
the Prospectus, any Prospectus Supplement and any documents incorporated by reference therein and any supplements or amendments
thereto and this Agreement and that:


 


(i)                
the representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same
effect as if made on such date and the Company has complied with all the agreements and satisfied all the conditions on its part
to be performed or satisfied at or prior to such date;


 


(ii)              
no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and
no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and


 


(iii)            
since the date of the most recent financial statements included in the Registration Statement, the Prospectus and the Incorporated
Documents, there has been no Material Adverse Effect on the condition (financial or otherwise), earnings, business or properties
of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Registration Statement and the Prospectus.


 


(d)              
Delivery of Accountants’ “Comfort” Letter. The Company shall have requested and caused the Accountants
to have furnished to the Manager, to the extent requested by the Manager and upon reasonable advance notice in connection with
any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in
form and substance satisfactory to the Manager, confirming that they are independent accountants within the meaning of the Act
and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and that they have
performed a review of any unaudited interim financial information of the Company and included or incorporated by reference in
the Registration Statement and the Prospectus and provide customary “comfort” as to such review in form and substance
satisfactory to the Manager.


 


(e)               
No Material Adverse Event. Since the respective dates as of which information is disclosed in the Registration Statement,
the Prospectus and the Incorporated Documents, except as otherwise stated therein, there shall not have been (i) any change
or decrease in previously reported results specified in the letter or letters referred to in paragraph (d) of this Section
6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise),
earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions
in the ordinary course of business, except as set forth in or contemplated in the Registration Statement, the Prospectus and the
Incorporated Documents (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i)
or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable
to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment
thereof), the Incorporated Documents and the Prospectus (exclusive of any amendment or supplement thereto).


 


(f)               
Payment of All Fees. The Company shall have paid the required Commission filing fees relating to the Shares within the
time period required by Rule 456(b)(1)(i) of the Act without regard to the proviso therein and otherwise in accordance with
Rules 456(b) and 457(r) of the Act and, if applicable, shall have updated the “Calculation of Registration Fee”
table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the
cover page of a prospectus filed pursuant to Rule 424(b).


 






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(g)              
No FINRA Objections. FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms
and arrangements under this Agreement.


 


(h)              
Shares Listed on Trading Market. The Shares shall have been listed and admitted and authorized for trading on the Trading
Market, and satisfactory evidence of such actions shall have been provided to the Manager.


 


(i)                
Other Assurances. Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to
the Manager such further information, certificates and documents as the Manager may reasonably request.


 


If
any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form
and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled
at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation
shall be given to the Company in writing or by telephone or facsimile confirmed in writing.


 


The
documents required to be delivered by this Section 6 shall be delivered at the office of Ellenoff Grossman & Schole LLP, counsel
for the Manager, at 1345 Avenue of the Americas, New York, New York 10105, on each such date as provided in this Agreement.


 


7.                 
Indemnification and Contribution.


 


(a)               
Indemnification by Company. The Company agrees to indemnify and hold harmless the Manager, the directors, officers, employees
and agents of the Manager and each person who controls the Manager within the meaning of either the Act or the Exchange Act against
any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the
Act, the Exchange Act or other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (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 for the registration of the Shares as originally filed
or in any amendment thereof, or in the Base Prospectus, any Prospectus Supplement, the Prospectus, any Issuer Free Writing Prospectus,
or in any amendment thereof or supplement thereto, or arise out of or are 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, and agrees to
reimburse each such indemnified party for any legal or other expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, damage, liability or action; provided, however, that the Company will not be
liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company by the Manager specifically for inclusion therein. This indemnity agreement will be in addition
to any liability that the Company may otherwise have.


 



    	22



    	 



    

  


(b)              
Indemnification by Manager. The Manager agrees to indemnify and hold harmless the Company, each of its directors, each
of its officers who signs the Registration Statement, and each person who controls the Company within the meaning of either the
Act or the Exchange Act, to the same extent as the foregoing indemnity from the Company to the Manager, but only with reference
to written information relating to the Manager furnished to the Company by the Manager specifically for inclusion in the documents
referred to in the foregoing indemnity; provided, however, that in no case shall the Manager be responsible for
any amount in excess of the Broker Fee applicable to the Shares and paid hereunder. This indemnity agreement will be in addition
to any liability which the Manager may otherwise have.


 


(c)               
Indemnification Procedures. Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement
of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying
party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and
defenses and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other
than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified
party in any action for which indemnification is sought (in which case the indemnifying party shall not thereafter be responsible
for the fees and expenses of any separate counsel retained by the indemnified party or parties except as set forth below); provided,
however, that such counsel shall be reasonably satisfactory to the indemnified party. Notwithstanding the indemnifying
party’s election to appoint counsel to represent the indemnified party in an action, the indemnified party shall have the
right to employ separate counsel (including local counsel), and the indemnifying party shall bear the reasonable fees, costs and
expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest, (ii) the actual or potential defendants in, or targets of,
any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional
to those available to the indemnifying party, (iii) the indemnifying party shall not have employed counsel reasonably satisfactory
to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action
or (iv) the indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying
party. An indemnifying party will not, without the prior written consent of the indemnified parties, settle or compromise or consent
to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification
or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim
or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.


 


(d)              
Contribution. In the event that the indemnity provided in paragraph (a), (b) or (c) of this Section 7
is unavailable to or insufficient to hold harmless an indemnified party for any reason, the Company and the Manager agree to contribute
to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending the same) (collectively “Losses”) to which the Company and the Manager may
be subject in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and by
the Manager on the other from the offering of the Shares; provided, however, that in no case shall the Manager be
responsible for any amount in excess of the Broker Fee applicable to the Shares and paid hereunder. If the allocation provided
by the immediately preceding sentence is unavailable for any reason, the Company and the Manager severally shall contribute 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 of the Manager on the other in connection with the statements or omissions which resulted in such Losses as well
as any other relevant equitable considerations. Benefits received by the Company shall be deemed to be equal to the total net
proceeds from the offering (before deducting expenses) received by it, and benefits received by the Manager shall be deemed to
be equal to the Broker Fee applicable to the Shares and paid hereunder as determined by this Agreement. Relative fault shall be
determined by reference to, among other things, whether any untrue or any alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to information provided by the Company on the one hand or the Manager on
the other, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The Company and the Manager agree that it would not be just and equitable if contribution were
determined by pro rata allocation or any other method of allocation which does not take account of the equitable considerations
referred to above. Notwithstanding the provisions of this paragraph (d), no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section 7, each person who controls the Manager within the meaning
of either the Act or the Exchange Act and each director, officer, employee and agent of the Manager shall have the same rights
to contribution as the Manager, and each person who controls the Company within the meaning of either the Act or the Exchange
Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have
the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this paragraph (d).


 






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8.                 
Termination.


 


(a)               
The Company shall have the right, by giving written notice as hereinafter specified, to terminate the provisions of this Agreement
relating to the solicitation of offers to purchase the Shares in its sole discretion at any time upon sixty (60) days’ prior
written notice. 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 in respect of compensation
of the Manager, shall remain in full force and effect notwithstanding the termination and (ii) the provisions of Sections 5,
6, 7, 8, 9, 10, 12 and 14 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 the provisions of this Agreement
relating to the solicitation of offers to purchase the Shares in its sole discretion at any time. Any such termination shall be
without liability of any party to any other party except that the provisions of Sections 5, 6, 7, 8, 9, 10, 12 and 14 of
this Agreement shall remain in full force and effect notwithstanding such termination.


 


(c)               
This Agreement shall remain in full force and effect until the earlier of one year and such date that this Agreement is terminated
pursuant to Sections 8(a) or (b) above or otherwise by mutual agreement of the parties; provided that any such
termination by mutual agreement shall in all cases be deemed to provide that Sections 5, 6, 7, 8, 9, 10, 12 and 14 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 Settlement Date or Time of Delivery for any sale of
the Shares, such sale shall settle in accordance with the provisions of Section 2(b) of this Agreement.


 


(e)               
In the case of any purchase of Shares by the Manager pursuant to a Terms Agreement, the obligations of the Manager pursuant to
such Terms Agreement shall be subject to termination, in the absolute discretion of the Manager, by prompt oral notice given to
the Company prior to the Time of Delivery relating to such Shares, if any, and confirmed promptly by facsimile or electronic mail,
if since the time of execution of the Terms Agreement and prior to such delivery and payment, (i) trading in the Company’s
Common Stock shall have been suspended by the Commission or the Trading Market or trading in securities generally on the Trading
Market shall have been suspended or limited or minimum prices shall have been established on such exchange, (ii) a banking
moratorium shall have been declared either by Federal or New York State authorities or (iii) there shall have occurred any
outbreak or escalation of hostilities, declaration by the United States of a national emergency or war, or other calamity or crisis
the effect of which on financial markets is such as to make it, in the sole judgment of the Manager, impractical or inadvisable
to proceed with the offering or delivery of the Shares as contemplated by the Prospectus (exclusive of any amendment or supplement
thereto).


 


9.                 
Representations and Indemnities to Survive. The respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers and of the Manager set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation made by the Manager or the Company or any of the officers, directors, employees,
agents or controlling persons referred to in Section 7, and will survive delivery of and payment for the Shares.


 


10.             
Notices. All communications hereunder will be in writing and effective only on receipt, and, if sent to the Manager, will
be mailed, delivered or facsimiled to the address set forth on the signature page hereto. An electronic communication (“Electronic
Notice”) shall be deemed written notice for purposes of this Section if the Electronic Notice is delivered to the electronic
mail address specified by the receiving party under separate cover. Electronic Notice shall be deemed to have been received at
the time the party sending Electronic Notice receives verification of receipt by the receiving party. Any party receiving Electronic
Notice may request and shall be entitled to receive the Electronic Notice on paper, in a nonelectronic form (“Nonelectronic
Notice”), which shall be sent to the requesting party within ten (10) days of receipt of the written request for Nonelectronic
Notice.


 






    	24



    	 



    

  


11.             
Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors
and the officers, directors, employees, agents and controlling persons referred to in Section 7, and no other person will
have any right or obligation hereunder.


 


12.             
No Fiduciary Duty. The Company hereby acknowledges that (a) the purchase and sale of the Shares pursuant to this Agreement
is an arm’s-length commercial transaction between the Company, on the one hand, and the Manager and any affiliate through
which it may be acting, on the other, (b) the Manager is acting solely as sales agent and/or principal in connection with
the purchase and sale of the Company’s securities and not as a fiduciary of the Company and (c) the Company’s
engagement of the Manager in connection with the offering and the process leading up to the offering is as independent contractors
and not in any other capacity. Furthermore, the Company agrees that it is solely responsible for making its own judgments in connection
with the offering (irrespective of whether the Manager has advised or is currently advising the Company on related or other matters).
The Company agrees that it will not claim that the Manager has rendered advisory services of any nature or respect, or owe an
agency, fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto.


 


13.             
Integration. This Agreement (including all schedules and exhibits hereto) and any Terms Agreement supersede all prior agreements
and understandings (whether written or oral) between the Company and the Manager with respect to the subject matter hereof.


 


14.             
Applicable Law. This Agreement and any Terms Agreement will be governed by and construed in accordance with the laws of
the State of New York applicable to contracts made and to be performed within the State of New York.


 


15.             
Waiver of Jury Trial. The Company hereby irrevocably waives, to the fullest extent permitted by applicable law, any and
all right to trial by jury in any legal proceeding arising out of or relating to this Agreement, any Terms Agreement or the transactions
contemplated hereby or thereby. 


 


16.             
Counterparts. This Agreement and any Terms Agreement may be signed in one or more counterparts, each of which shall constitute
an original and all of which together shall constitute one and the same agreement, which may be delivered by facsimile or in .pdf
file via e-mail.


 


17.             
Use of Information. The Manager may not provide any information not otherwise in the public domain gained in connection
with this Agreement and the transactions contemplated by this Agreement, including due diligence, to any third party other than
its legal counsel advising it on this Agreement unless expressly approved by the Company in writing; provided, however,
that the Manager may disclose such information pursuant to any governmental, judicial or administrative order, subpoena or discovery
request or request or inquiry of a regulatory or self-regulatory body.


 


18.             
Amendment. Neither this Agreement nor any term hereof may be amended other than pursuant to a writing executed by the Company
and the Manager.


 


19.             
Headings. The section headings used in this Agreement and any Terms Agreement are for convenience only and shall not affect
the construction hereof.


 


 


***************************






    	25



    	 



    

 



         


If
the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement among the Company and the Manager.


 


 


Very
truly yours,


 


eMagin
corp.


 


By:________________________


Name:


Title:


 


The
foregoing Agreement is hereby confirmed and accepted as of the date first written above.


 


CRAIG-HALLUM
CAPITAL GROUP LLC


	 

         

        By:________________________

        Name:

        Title:

         



Address
for Notice: 222 South Ninth Street, Suite 350


Minneapolis,
MN 55402






    	26



    	 



    

 Form
of Terms Agreement


ANNEX
I 


EMAGIN
CORP. TERMS AGREEMENT


 


Dear
Sirs:


 


     eMagin
Corp. (the “Company”) proposes, subject to the terms and conditions stated herein and in the At The Market
Offering Agreement, dated September 3, 2015 (the “At The Market Offering Agreement”), between the Company and
Craig-Hallum Capital Group LLC (“Agent”), to issue and sell to Agent the securities specified in the Schedule I
hereto (the “Purchased Shares”).


 


     Each
of the provisions of the At The Market Offering Agreement not specifically related to the solicitation by Agent, as agent of the
Company, of offers to purchase securities is incorporated herein by reference in its entirety, and shall be deemed to be part
of this Terms Agreement to the same extent as if such provisions had been set forth in full herein. Each of the representations
and warranties set forth therein shall be deemed to have been made at and as of the date of this Terms Agreement and the Time
of Delivery, except that each representation and warranty in Section 3 of the At The Market Offering Agreement which makes
reference to the Prospectus (as therein defined) shall be deemed to be a representation and warranty as of the date of the At
The Market Offering Agreement in relation to the Prospectus, and also a representation and warranty as of the date of this Terms
Agreement and the Time of Delivery in relation to the Prospectus as amended and supplemented to relate to the Purchased Shares.


 


     An
amendment to the Registration Statement (as defined in the At The Market Offering Agreement), or a supplement to the Prospectus,
as the case may be, relating to the Purchased Shares, in the form heretofore delivered to the Manager is now proposed to be filed
with the Securities and Exchange Commission.


 


     Subject
to the terms and conditions set forth herein and in the At The Market Offering Agreement which are incorporated herein by reference,
the Company agrees to issue and sell to Agent and the latter agrees to purchase from the Company the number of shares of the Purchased
Shares at the time and place and at the purchase price set forth in the Schedule I hereto.


 



    	27



    	 



    

 





If the foregoing is in accordance with your understanding, please
sign and return to us a counterpart hereof, whereupon this Terms Agreement, including those provisions of the At The Market Offering
Agreement incorporated herein by reference, shall constitute a binding agreement between the Manager and the Company. 


	 	 	 	 	 
	EMAGIN
                    CORP.

         
	 	 
	 

        By:__________________________________________

        Name:

        Title:

         



ACCEPTED
as of the date first written above.


	 	 	 	 	 
	CRAIG-HALLUM
                    CAPITAL GROUP LLC

        

         
	 	 


By:__________________________________________


Name:


Title: