Exhibit 10.1


 


Execution Version


 


AKERNA CORP.


$25,000,000

COMMON STOCK

EQUITY DISTRIBUTION AGREEMENT


 


July 23, 2021


 


Oppenheimer & Co. Inc.


85 Broad Street, 26th Floor


New York, New York 10004


Ladies and Gentlemen:


 


Akerna Corp., a Delaware corporation
(the “Company”), confirms its agreement (this “Agreement”) with Oppenheimer &
Co. Inc., as follows:


 


1.
Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms
and subject to the conditions set forth herein, it may issue and sell to or through Oppenheimer & Co. Inc. and A.G.P./Alliance Global
Partners, acting as agents and/or principals (together, the “Sales Agents”), shares of the Company’s common
stock, par value $0.0001 per share (the “Common Stock”), having an aggregate offering price of up to $25,000,000
(the “Maximum Amount”), subject to the limitations set forth in Section 3(b) hereof. The issuance and
sale of shares of Common Stock to or through the Sales Agent will be effected pursuant to the Registration Statement (as defined below)
filed, or to be filed, by the Company in accordance with the provisions of the Securities Act of 1933, as amended, and the rules and regulations
thereunder (collectively, the “Securities Act”) with the U.S. Securities and Exchange Commission (the “Commission”)
and after such Registration Statement has been declared effective by the Commission, although nothing in this Agreement shall be construed
as requiring the Company to use the Registration Statement (as defined below) to issue the Common Stock.


 


On the date of this Agreement,
the Company has filed in accordance with the Securities Act, with the Commission, a registration statement on Form S-3 (File No. 333-256878),
including a base prospectus, relating to certain securities, including the Common Stock, to be issued from time to time by the Company,
and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange Act”).
The Company has prepared a prospectus supplement specifically relating to the offer and sale of Placement Shares (as defined below) pursuant
to this Agreement included as part of such registration statement (the “ATM Prospectus”). The Company will furnish
to the Sales Agents, for use by the Sales Agents, copies of the ATM Prospectus included as part of such registration statement, relating
to the Placement Shares. Except where the context otherwise requires, the various parts of such registration statement, at any given time
each part as amended or supplemented as of such time,, including all documents and exhibits filed as part thereof or incorporated by reference
therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to
Rule 424(b) under the Securities Act or deemed to be a part of such registration statement pursuant to Rule 430B or 462(b) of the Securities
Act, is herein called the “Registration Statement.” The base prospectus, including all documents incorporated
therein by reference, together with the ATM Prospectus, including all documents incorporated therein by reference, each of which is included
in the Registration Statement, as each may be supplemented by any additional prospectus supplement, in the form in which such prospectus
and/or ATM Prospectus have most recently been filed by the Company with the Commission, is herein called the “Prospectus.”
Any reference herein to the Registration Statement, the Prospectus or any amendment or supplement thereto shall be deemed to refer to
and include the documents incorporated by reference therein, and any reference herein to the terms “amend,” “amendment”
or “supplement” with respect to the Registration Statement or the Prospectus shall be deemed to refer to and include the filing
after the execution hereof of any document with the Commission deemed to be incorporated by reference therein. For purposes of this Agreement,
all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include any
copy filed with the Commission pursuant to the Electronic Data Gathering Analysis and Retrieval System or any successor thereto (collectively
“EDGAR”).


 






    


     


    

 


2.
Placements. Each time that the Company wishes to issue and sell the Common Stock through a Sales Agent, as agent, hereunder
(each, a “Placement”), it will notify one of the Sales Agents by email notice (or other method mutually agreed
to in writing by the parties) (a “Placement Notice”) containing the parameters in accordance with which it desires
the Common Stock to be sold, which shall at a minimum include the number of shares of Common Stock to be issued (the “Placement
Shares”), the time period during which sales are requested to be made, any limitation on the number of shares of Common
Stock that may be sold in any one Trading Day (as defined in Section 3) and any minimum price below which sales may not be made,
a form of which containing such minimum sales parameters necessary is attached hereto as Schedule 1. The Placement Notice
shall originate from any of the individuals from the Company set forth on Schedule 2 (with a copy to each of the other individuals
from the Company listed on such schedule), and shall be addressed to each of the individuals from such Sales Agent set forth on Schedule
2, as such Schedule 2 may be amended from time to time. The Placement Notice shall be effective upon receipt by
one of the Sales Agents unless and until (i) in accordance with the notice requirements set forth in Section 4, such Sales Agent
declines to accept the terms contained therein for any reason, in its sole discretion, (ii) the entire amount of the Placement Shares
have been sold, (iii) in accordance with the notice requirements set forth in Section 4, the Company suspends or terminates the
Placement Notice, (iv) the Company issues a subsequent Placement Notice with parameters superseding those on the earlier dated Placement
Notice, or (v) this Agreement has been terminated under the provisions of Section 11. The amount of any discount, commission or
other compensation to be paid by the Company to such Sales Agent in connection with the sale of the Placement Shares through such Sales
Agent, as agent, shall be as set forth in Schedule 3. It is expressly acknowledged and agreed that neither the Company nor
the Sales Agents will have any obligation whatsoever with respect to a Placement or any Placement Shares unless and until the Company
delivers a Placement Notice to such Sales Agent and such Sales Agent does not decline such Placement Notice pursuant to the terms set
forth above, and then only upon the terms specified therein and herein. In the event of a conflict between the terms of this Agreement
and the terms of a Placement Notice, the terms of the Placement Notice will control.


 


3.
Sale of Placement Shares by the Sales Agents.


 


(a)
Subject to the terms and conditions herein set forth, upon the Company’s issuance of a Placement Notice, and unless the sale
of the Placement Shares described therein has been declined, suspended, or otherwise terminated in accordance with the terms of this Agreement,
the Sales Agents, as agents for the Company, will use their commercially reasonable efforts consistent with its normal trading and sales
practices and applicable state and federal laws, rules and regulations and the rules of The Nasdaq Capital Market (the “Exchange”),
for the period specified in the Placement Notice, to sell such Placement Shares up to the amount specified by the Company in, and otherwise
in accordance with the terms of such Placement Notice. If acting as agent hereunder, the Sales Agents will provide written confirmation
to the Company (including by email correspondence to each of the individuals of the Company set forth on Schedule 2, if
receipt of such correspondence is actually acknowledged by any of the individuals to whom the notice is sent, other than via auto-reply)
no later than the opening of the Trading Day (as defined below) immediately following the Trading Day on which it has made sales of Placement
Shares hereunder setting forth the number of Placement Shares sold on such day, the compensation payable by the Company to the Sales Agents
pursuant to Section 2 with respect to such sales, and the Net Proceeds (as defined below) payable to the Company, with an itemization
of the deductions made by the Sales Agents (as set forth in Section 5(a)) from the gross proceeds that it receives from such sales.
Subject to the terms of the Placement Notice, the Sales Agents may sell Placement Shares by any method permitted by law deemed to be an
“at the market” offering as defined in Rule 415 under the Securities Act, including without limitation sales made directly
on the Exchange, on any other existing trading market for the Common Stock or to or through a market maker. If expressly authorized by
the Company in a Placement Notice, the Sales Agents may also sell Placement Shares in privately negotiated transactions. Subject to Section
3(c) below, the Sales Agents shall not purchase Placement Shares for its own account as principal unless expressly authorized to do
so by the Company in a Placement Notice. The Company acknowledges and agrees that (i) there can be no assurance that the Sales Agents
will be successful in selling Placement Shares, and (ii) the Sales Agent will incur no liability or obligation to the Company or any other
person or entity if it does not sell Placement Shares for any reason other than a failure by the Sales Agents to use its commercially
reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Placement Shares
as required under this Section 3. For the purposes hereof, “Trading Day” means any day on which the Company’s
Common Stock is purchased and sold on the principal market on which the Common Stock is listed or quoted.


 






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(b)
Under no circumstances shall the Company cause or request the offer or sale of any Placement Shares if, after giving effect to
the sale of such Placement Shares, the aggregate number or gross sales proceeds of Placement Shares sold pursuant to this Agreement would
exceed the lesser of: (i) the number or dollar amount of shares of Common Stock registered pursuant to the Registration Statement pursuant
to which the offering hereunder is being made, (ii) the number of authorized but unissued and unreserved shares of Common Stock, (iii)
the number or dollar amount of shares of Common Stock permitted to be offered and sold by the Company under Form S-3 (including General
Instruction I.B.6. of Form S-3, if and for so long as applicable), (iv) the number or dollar amount of shares of Common Stock 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 officer, and notified to the Sales Agents in writing, or (v) the number or dollar amount of shares of Common
Stock for which the Company has filed the ATM Prospectus or other prospectus or prospectus supplement thereto specifically relating to
the offering of the Placement Shares pursuant to this Agreement. 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 Sales Agents in
writing. Notwithstanding anything to the contrary contained herein, the parties hereto acknowledge and agree that compliance with the
limitations set forth in this Section 3(b) on the number or dollar amount of Placement Shares that may be issued and sold under
this Agreement from time to time shall be the sole responsibility of the Company, and that the Sales Agents shall have no obligation in
connection with such compliance.


 


(c)
The Company acknowledges and agrees that the Sales Agents have informed the Company that such Sales Agent may, to the extent permitted
under the Securities Act and the Exchange Act (including, without limitation, Regulation M promulgated thereunder), purchase and sell
shares of Common Stock for its own account while this Agreement is in effect, and shall be under no obligation to purchase Placement Shares
on a principal basis pursuant to this Agreement, except as otherwise agreed by such Sales Agent in a Placement Notice; provided,
that no such purchase or sales shall take place while a Placement Notice is in effect (except (i) as agreed by the Company and such Sales
Agent in the Placement Notice or (ii) to the extent such Sales Agent may engage in sales of Placement Shares purchased or deemed purchased
from the Company as a “riskless principal” or in a similar capacity); and, provided, further, that such Sales
Agent acknowledges and agrees that, except as expressly set forth in a Placement Notice, any such transactions are not being, and shall
not be deemed to have been, undertaken at the request or direction of, or for the account of, the Company, and that the Company has and
shall have no control over any decision by such Sales Agent to enter into any such transactions.


 


(d)
During the term of this Agreement and notwithstanding anything to the contrary herein, the Sales Agents agree that in no event
will the Sales Agents or their affiliates engage in any market making, bidding, stabilization or other trading activity with regard to
the Common Stock or related derivative securities if such activity would be prohibited under Regulation M or other anti-manipulation rules
under the Exchange Act.


 






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(e)
Each Sales Agent represents and warrants that it is duly registered as a broker-dealer under the Financial Industry Regulatory
Authority, Inc. (“FINRA”) and the applicable statutes and regulations of each state in which the Placement Shares
will be offered and sold, except such states in which such Sales Agent is exempt from registration or such registration is not otherwise
required in connection with the offer and sale of the Placement Shares. Each Sales Agent shall continue, for the term of this Agreement,
to be duly registered as a broker-dealer under FINRA and the applicable statutes and regulations of each state in which the Placement
Shares will be offered and sold, except such states in which it is exempt from registration or such registration is not otherwise required
in connection with the offer and sale of the Placement Shares.


 


4.
Suspension of Sales.


 


(a)
The Company or the Sales Agents may, upon notice to the other party in writing (including by email correspondence to each of the
individuals of the other party set forth on Schedule 2, if receipt of such correspondence is actually acknowledged by any
of the individuals to whom the notice is sent, other than via auto-reply) or by telephone (confirmed immediately by verifiable facsimile
transmission or email correspondence to each of the individuals of the other party set forth on Schedule 2), suspend any
sale of Placement Shares for a period of time (a “Suspension Period”); provided, however, that
such suspension shall not affect or impair either party’s obligations with respect to any Placement Shares sold hereunder prior
to the receipt of such notice. While a Suspension Period is in effect, any obligation under Sections 7(m), 7(n), and 7(o)
with respect to the delivery of certificates, opinions or comfort letters to the Sales Agents shall be suspended. Each of the parties
agrees that no such notice under this Section 4 shall be effective against the other unless it is made to one of the individuals
named on Schedule 2 hereto, as such schedule may be amended from time to time. During a Suspension Period, the Company shall
not issue any Placement Notices and the Sales Agents shall not sell any Placement Shares hereunder. The party that issued a suspension
notice shall notify the other party in writing of the Trading Day on which the Suspension Period shall expire not later than twenty-four
(24) hours prior to such Trading Day. Following the expiration of any Suspension Period the Company will not issue any Placement Notices
and any Sales Agents will not be obligated to sell any Placement Shares until such time as the Company has brought current its obligation
under Sections 7(m), 7(n), and 7(o) with respect to the delivery of certificates, opinions or comfort letters to
the Sales Agents.


 


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


 


5.
Settlement.


 


(a)
Settlement of Placement Shares. Unless otherwise specified in the applicable Placement Notice, settlement for sales of Placement
Shares will occur on the second (2nd) Trading Day (or such earlier day as is industry practice for regular-way trading) following
the respective Point of Sale (as defined below) (each, a “Settlement Date”). The amount of proceeds to be delivered
to the Company on a Settlement Date against receipt of the Placement Shares sold (the “Net Proceeds”) will be
equal to the aggregate sales price received by the Sales Agents at which such Placement Shares were sold, after deduction for (i) the
Sales Agents’ discount, commission or other compensation for such sales payable by the Company pursuant to Section 2 hereof,
(ii) any other amounts due and payable by the Company to the Sales Agents hereunder pursuant to Section 7(g) (Expenses) hereof
and (iii) any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales. “Point
of Sale” means, for a Placement, the time at which an acquiror of Placement Shares entered into a contract, binding upon
such acquiror, to acquire such Placement Shares.


 






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(b)
Delivery of Placement Shares. On each Settlement Date, the Company will, or will cause its transfer agent to, electronically
transfer the Placement Shares being sold by crediting the Sales Agents’ or their designees’ account (provided the Sales Agents
shall have given the Company written notice of such designee prior to the Settlement Date) at The Depository Trust Company through its
Deposit and Withdrawal at Custodian System or by such other means of delivery as may be mutually agreed upon by the parties hereto which
in all cases shall be freely tradable, transferable, registered shares in good deliverable form. On each Settlement Date, the Sales Agents
will deliver the related Net Proceeds in same day funds to an account designated by the Company on, or prior to, the Settlement Date.
The Company agrees that if the Company, or its transfer agent (if applicable), defaults in its obligation to deliver duly authorized Placement
Shares on a Settlement Date, in addition to and in no way limiting the rights and obligations set forth in Section 9(a) (Indemnification
and Contribution) hereto, the Company will (i) hold each Sales Agent, its directors, officers, members, partners, employees and agents
of such Sales Agent, each broker dealer affiliate of such Sales Agent, and each person, if any, who (A) controls the Sales Agents within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act or (B) is controlled by or is under common control with
such Sales Agent (each, a “Sales Agent Affiliate”), harmless against any loss, claim, damage, or reasonable
expense (including reasonable legal fees and expenses), as incurred, arising out of or in connection with such default by the Company
or its transfer agent (if applicable) and (ii) pay to the Sales Agents any commission, discount, or other compensation to which it would
otherwise have been entitled absent such default.


 


6.
Representations and Warranties of the Company. The Company, on behalf of itself and its subsidiaries, represents and warrants
to, and agrees with, the Sales Agents that as of each Applicable Time (as defined in Section 22(a)):


 


(a)
Compliance with Registration Requirements. As of each Applicable Time other than the date of this Agreement, the Registration
Statement have been declared effective by the Commission under the Securities Act and any 462(b) Registration Statement has become automatically
effective pursuant to Rule 462(b) under the Securities Act. The Company has complied to the Commission’s satisfaction with all requests
of the Commission for additional or supplemental information related to the Registration Statement and the Prospectus. No stop order suspending
the effectiveness of the Registration Statement or any Rule 462(b) Registration Statement is in effect and no proceedings for such purpose
or pursuant to Section 8A of the Securities Act have been instituted or are pending or, to the knowledge of the Company, are contemplated
or threatened by the Commission. The Registration Statement and the offer and sale of the Placement Shares as contemplated hereby meet
the requirements of Rule 415 under the Securities Act and comply in all material respects with said Rule. In the section entitled “Plan
of Distribution” in the ATM Prospectus, the Company has named Oppenheimer & Co. Inc. and A.G.P./Alliance Global Partners as
agents that the Company has engaged in connection with the transactions contemplated by this Agreement. The Company is an “ineligible
issuer” as defined in Rule 405 under the Securities Act.


 


(b)
No Misstatement or Omission. The Prospectus when filed will comply or complied and, as amended or supplemented, if applicable,
will comply in all material respects with the Securities Act. Each of the Registration Statement, any Rule 462(b) Registration Statement
and any post-effective amendment thereto, at the time it becomes effective, and as of each Applicable Time, if any, will comply in all
material respects with the Securities Act and did not and, as of each Applicable Time, if any, will not contain any untrue statement of
a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
The Prospectus, as amended or supplemented, as of its date, did not and, as of each Applicable Time, if any, will not contain any untrue
statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The representations and warranties set forth in the two immediately preceding sentences do
not apply to statements in or omissions from the Registration Statement, any Rule 462(b) Registration Statement, or any post-effective
amendment thereto, or the Prospectus, or any amendments or supplements thereto, made in reliance upon and in conformity with information
furnished to the Company in writing by the Sale Agent expressly for use therein. The parties hereto agree that the information provided
in writing by or on behalf of the Sales Agents expressly for use in the Registration Statement, any Rule 462(b) Registration Statement,
or any post-effective amendment thereto, or the Prospectus, or any amendments or supplements thereto, consists solely of the material
referred to in Schedule 5 hereto, as updated from time to time.


 






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(c)
S-3 Eligibility. At the time the Registration Statement and any Rule 462(b) Registration Statement was or will be filed
with the Commission, at the time the Registration Statement and any Rule 462(b) Registration Statement was or will be declared effective
by the Commission, and at the time the Company’s most recent Annual Report on Form 10-K was filed with the Commission, the Company
met or will meet the then applicable requirements for the use of Form S-3 under the Securities Act, including, but not limited to, General
Instructions I.B.1. or I.B.6. of Form S-3, if and for so long as applicable. The Company is not a shell company (as defined in Rule 405
under the Securities Act) and has not been a shell company for at least 12 calendar months previously.


 


(d)
Distribution of Offering Material By the Company. The Company has not distributed and will not distribute, prior to the
completion of the Sales Agents’ distribution of the Placement Shares, any offering material in connection with the offering and
sale of the Placement Shares other than the Prospectus or the Registration Statement.


 


(e)
Emerging Growth Company. The Company has been and is an “emerging growth company,” as defined in Section 2(a)
of the Securities Act (an “Emerging Growth Company”).


 


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


 


(g)
Financial Statements. The financial statements (including the related notes thereto) of the Company and its consolidated
subsidiaries included or incorporated by reference in the Registration Statement and the Prospectus comply in all material respects with
the applicable requirements of the Securities Act and the Exchange Act, as applicable and present fairly the financial position of the
Company and its consolidated subsidiaries as of the dates indicated and the results of their operations and the changes in their cash
flows for the periods specified; such financial statements have been prepared in conformity with generally accepted accounting principles
(“GAAP”) in the United States applied on a consistent basis throughout the periods covered thereby, and any
supporting schedules included or incorporated by reference in the Registration Statement and the Prospectus present fairly the information
required to be stated therein; and the other financial information included or incorporated by reference in the Registration Statement
and the Prospectus has been derived from the accounting records of the Company and its consolidated subsidiaries and presents fairly the
information shown thereby; all disclosures included or incorporated by reference in the Registration Statement and the Prospectus regarding
“non-GAAP financial measures” (as such term is defined by the rules and regulations of the Commission) comply with Regulation
G of the Exchange Act and Item 10 of Regulation S-K of the Securities Act, to the extent applicable; and the pro forma financial information
and the related notes thereto included or incorporated by reference in the Registration Statement and the Prospectus have been prepared
in accordance with the applicable requirements of the Securities Act and the Exchange Act, as applicable, and the assumptions underlying
such pro forma financial information are reasonable and are set forth in the Registration Statement and the Prospectus.


 






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(h)
No “Prohibited Activities”. Except as preapproved in accordance with the requirements set forth in Section 10A
of the Exchange Act, the accounting firm that certified the financial statements and supporting schedules of the Company has not been
engaged by the Company to perform any “prohibited activities” (as defined in Section 10A of the Exchange Act).


 


(i)  
No Material Off-Balance Sheet Arrangements. There are no material off-balance sheet arrangements (as defined in Item 303
of Regulation S-K) that have or are reasonably likely to have a material current or future effect on the Company’s financial condition,
results of operations, liquidity, capital expenditures or capital resources.


 


(j)  
The Equity Distribution Agreement. This Agreement has been duly authorized, executed and delivered by the Company, and constitutes
a valid, legal, and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as rights
to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally, and subject to general principles
of equity. The Company has full corporate power and authority to enter into this Agreement and to authorize, issue and sell the Placement
Shares as contemplated by this Agreement. This Agreement conforms in all material respects to the descriptions thereof in the Registration
Statement and the Prospectus.


 


(k)
No Material Adverse Change. Since the date of the most recent financial statements of the Company included or incorporated
by reference in the Registration Statement and the Prospectus, (i) there has not been any change in the capital stock (other than the
issuance of shares of Common Stock upon exercise of stock options and warrants described as outstanding in, and the grant of options and
awards under existing equity incentive plans described in, the Registration Statement and the Prospectus), short-term debt or long-term
debt of the Company or any of its subsidiaries, or any dividend or distribution of any kind declared, set aside for payment, paid or made
by the Company on any class of capital stock, or any material adverse change, or any development involving a prospective material adverse
change, in or affecting the business, properties, management, financial position, stockholders’ equity, results of operations or
prospects of the Company and its subsidiaries taken as a whole; (ii) neither the Company nor any of its subsidiaries has entered into
any transaction or agreement (whether or not in the ordinary course of business) that is material to the Company and its subsidiaries
taken as a whole or incurred any liability or obligation, direct or contingent, that is material to the Company and its subsidiaries taken
as a whole; and (iii) neither the Company nor any of its subsidiaries has sustained any loss or interference with its business that is
material to the Company and its subsidiaries taken as a whole and that is either from fire, explosion, flood or other calamity, whether
or not covered by insurance, or from any labor disturbance or dispute or any action, order or decree of any court or arbitrator or governmental
or regulatory authority, except in each case as otherwise disclosed in the Registration Statement and the Prospectus.


 


(l)  
Organization and Good Standing. The Company and each of its subsidiaries have been duly organized or formed, as applicable,
and are validly existing and in good standing (where such concept is recognized under the laws of the jurisdiction in which they are organized
and formed) under the laws of their respective jurisdictions of organization, are duly qualified to do business and are in good standing
in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such
qualification, and have all power and authority necessary to own or hold their respective properties and to conduct the businesses in
which they are engaged, except where the failure to be so qualified or in good standing or have such power or authority would not, individually
or in the aggregate, have a material adverse effect on the business, properties, management, financial position, stockholders’ equity,
results of operations or prospects of the Company and its subsidiaries taken as a whole or on the performance by the Company of its obligations
under this Agreement (a “Material Adverse Effect”). The subsidiaries listed in Schedule 4 to this Agreement
are the only subsidiaries of the Company.


 






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(m)
Capitalization. The Company has an authorized capitalization as set forth in the Registration Statement and the Prospectus
under the heading “Capitalization”; all the outstanding shares of capital stock of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable and are not subject to any pre-emptive or similar rights; except as described
in or expressly contemplated by the Registration Statement and the Prospectus, there are no outstanding rights (including, without limitation,
pre-emptive rights), warrants or options to acquire, or instruments convertible into or exchangeable for, any shares of capital stock
or other equity interest in the Company or any of its subsidiaries, or any contract, commitment, agreement, understanding or arrangement
of any kind relating to the issuance of any capital stock of the Company or any such subsidiary, any such convertible or exchangeable
securities or any such rights, warrants or options; the capital stock of the Company conforms in all material respects to the description
thereof contained in the Registration Statement and the Prospectus; and all the outstanding shares of capital stock or other equity interests
of each subsidiary owned, directly or indirectly, by the Company have been duly and validly authorized and issued, are fully paid and
non-assessable and are owned directly or indirectly by the Company, free and clear of any lien, charge, encumbrance, security interest,
restriction on voting or transfer or any other claim of any third party


 


(n)
Authorization of the Placement Shares. The Placement Shares to be sold by each Sales Agent, acting as agent and/or principal
for the Company, have been duly authorized and when issued and paid for as contemplated herein will be validly issued, fully paid and
non-assessable. The issuance of the Placement Shares is not subject to the preemptive or other similar rights of any stockholder of the
Company.


 


(o)
No Applicable Registration or Other Similar Rights. There are no persons with registration or other similar rights to have
any equity or debt securities registered for sale under the Registration Statement or included in the offering contemplated by this Agreement,
except for such rights as have been duly waived. Other than as set forth in this Agreement, no person has the right to act as an underwriter
or as a financial advisor to the Company in connection with the offer and sale of the Placement Shares hereunder, whether as a result
of the filing or effectiveness of the Registration Statement or the sale of the Placement Shares as contemplated hereby or otherwise.


 


(p)
Stock Options. The Company has not granted any stock options under its equity compensation plans.


 


(q)
No Violation or Default. Neither the Company nor any of its subsidiaries is (i) in violation of its charter or by-laws
or similar organizational documents; (ii) in default, and no event has occurred that, with notice or lapse of time or both, would
constitute such a default, in the due performance or observance of any term, covenant or condition contained in any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which
the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is
subject; or (iii) in violation of any law, statute, rule, regulation, judgment, order, writ or decree of any arbitrator, court, governmental
body, regulatory body, administrative agency or other authority, body or agency having jurisdiction over the Company or its subsidiaries
or any of their respective properties, assets or operations, except, in the case of clauses (ii) and (iii) above, for any such default
or violation that would not, individually or in the aggregate, have a Material Adverse Effect.


 






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(r)  
No Conflicts. The execution, delivery and performance by the Company of this Agreement, the issuance and sale of the Placement
Shares by the Company and the consummation by the Company of the transactions contemplated by this Agreement or the Prospectus will not
(i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, result in the
termination, modification or acceleration of, or result in the creation or imposition of any lien, charge or encumbrance upon any property,
right or asset of the Company or any of its subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries
is bound or to which any property, right or asset of the Company or any of its subsidiaries is subject, (ii) result in any violation of
the provisions of the charter or by-laws or similar organizational documents of the Company or any of its subsidiaries or (iii) result
in the violation of any law, statute, rule, regulation, judgment, order, writ or decree of any arbitrator, court, governmental body, regulatory
body, administrative agency or other authority, body or agency having jurisdiction over the Company or its subsidiaries or any of their
respective properties, assets or operations, except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation,
default, lien, charge or encumbrance that would not, individually or in the aggregate, have a Material Adverse Effect.


 


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


 


(t)  
FINRA Matters. All of the information provided to the Sales Agents or to counsel for the Sales Agents by the Company, its
counsel, its officers and directors and the holders of any securities (debt or equity) or options to acquire any securities of the Company
in connection with the offering of the Placement Shares is true, complete, correct and compliant in all material respects with FINRA’s
rules, and any letters, filings or other supplemental information provided to FINRA pursuant to FINRA Rules or NASD Conduct Rules is true,
complete, correct and compliant in all material respects.


 


(u)
Legal Proceedings. Except as described in the Registration Statement and the Prospectus, there are no legal, governmental
or regulatory investigations, actions, demands, claims, suits, arbitrations, inquiries or proceedings (“Legal Proceedings”)
pending to which the Company or any of its subsidiaries is or may be a party or to which any property of the Company or any of its subsidiaries
is or may be the subject that, individually or in the aggregate, if determined adversely to the Company or any of its subsidiaries, could
reasonably be expected to have a Material Adverse Effect; no such Legal Proceedings are threatened or, to the knowledge of the Company,
contemplated by any governmental or regulatory authority or threatened by others; and (i) there are no current or pending Legal Proceedings
that are required under the Securities Act to be described in the Registration Statement or the Prospectus that are not so described in
the Registration Statement and the Prospectus and (ii) there are no statutes, regulations or contracts or other documents that are required
under the Securities Act to be filed as exhibits to the Registration Statement or described in the Registration Statement or the Prospectus
that are not so filed as exhibits to the Registration Statement or described in the Registration Statement and the Prospectus.


 


(v)
Independent Accountants. Marcum LLP, who have certified certain financial statements of the Company and its subsidiaries,
whose report with respect to the financial statements (which term as used in this Agreement includes the related notes thereto) and any
supporting schedules filed with the Commission or incorporated by reference in the Registration Statement and included or incorporated
by reference in the Prospectus, are independent public accountants as required by the Securities Act and the rules and regulations thereunder.


 






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(w)
Title to Real and Personal Property. The Company and its subsidiaries have good and marketable title in fee simple to, or
have valid rights to lease or otherwise use, all items of real and personal property that are material to the respective businesses of
the Company and its subsidiaries, in each case free and clear of all liens, encumbrances, claims and defects and imperfections of title
except those that (i) do not materially interfere with the use made and proposed to be made of such property by the Company and its subsidiaries
or (ii) could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.


 


(x)
Title to Intellectual Property. Except as disclosed in the Registration Statement and the Prospectus, the Company owns or
possesses the valid right to use all (i) valid and enforceable patents, patent applications, trademarks, trademark registrations, service
marks, service mark registrations, Internet domain name registrations, copyrights, copyright registrations, licenses, trade secret rights
(“Intellectual Property Rights”) and (ii) inventions, software, works of authorships, trademarks, service marks,
trade names, databases, formulae, know how, Internet domain names and other intellectual property (including trade secrets and other unpatented
and/or unpatentable proprietary confidential information, systems, or procedures) (collectively, “Intellectual Property Assets”)
necessary to conduct its business as currently conducted, and as proposed to be conducted and described in the Registration Statement
and the Prospectus. The Company has not received any notice of, nor is aware of, any infringement of or conflict with asserted rights
of others with respect to any Intellectual Property Rights or Intellectual Property Assets. Further, the Company has not received any
opinion from its legal counsel concluding that any activities of its business infringe, misappropriate, or otherwise violate, valid and
enforceable Intellectual Property Rights of any other person, and has not received written notice of any challenge, which is to its knowledge
still pending, by any other person to the rights of the Company with respect to any Intellectual Property Rights or Intellectual Property
Assets owned or used by the Company. To the Company’s knowledge, the Company’s business as now conducted does not give rise
to any infringement of, any misappropriation of, or other violation of, any valid and enforceable Intellectual Property Rights of any
other person. All licenses for the use of the Intellectual Property Rights described in the Registration Statement and the Prospectus
are valid, binding upon, and enforceable by or against the parties thereto in accordance to its terms. The Company has complied in all
material respects with, and is not in breach nor has received any asserted or threatened claim of breach of any Intellectual Property
license, and the Company has no knowledge of any breach or anticipated breach by any other person to any Intellectual Property license.
No claim has been made against the Company alleging the infringement by the Company of any patent, trademark, service mark, trade name,
copyright, trade secret, license in or other intellectual property right or franchise right of any person. The Company has taken all reasonable
steps to protect, maintain and safeguard its Intellectual Property Rights, including the execution of appropriate nondisclosure and confidentiality
agreements. The consummation of the transactions contemplated by this Agreement will not result in the loss or impairment of or payment
of any additional amounts with respect to, nor require the consent of any other person in respect of, the Company’s right to own,
use, or hold for use any of the Intellectual Property Rights as owned, used or held for use in the conduct of the business as currently
conducted. The Company has at all times complied with all applicable laws relating to privacy, data protection, and the collection and
use of personal information collected, used, or held for use by the Company in the conduct of the Company’s business. No claims
have been asserted or threatened against the Company alleging a violation of any person’s privacy or personal information or data
rights and the consummation of the transactions contemplated hereby will not breach or otherwise cause any violation of any law related
to data privacy, data protection, or the collection and use of personal information collected, used, or held for use by the Company in
the conduct of the Company’s business. The Company takes reasonable measures to ensure that such information is protected against
unauthorized access, use, modification, or other misuse. The Company has taken all necessary actions to obtain ownership of all works
of authorship and inventions made by its employees, consultants and contractors during the time they were employed by or under contract
with the Company and which relate to the Company’s business. All founders and key employees have signed confidentiality and invention
assignment agreements with the Company.


 






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(y)
No Undisclosed Relationships. No relationship, direct or indirect, exists between or among the Company or any of its subsidiaries,
on the one hand, and the directors, officers, stockholders, customers, suppliers or other affiliates of the Company or any of its subsidiaries,
on the other, that is required by the Securities Act to be described in each of the Registration Statement and the Prospectus and that
is not so described in such documents.


 


(z)
Company Not an “Investment Company”. The Company is not and, after giving effect to the offering and sale of
the Placement Shares and the application of the proceeds thereof as described in the Registration Statement and the Prospectus, will not
be required to register as an “investment company” or an entity “controlled” by an “investment company”
within the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission thereunder (collectively,
the “Investment Company Act”).


 


(aa)
Tax Law Compliance. The Company and its subsidiaries have paid all federal, state, local and foreign taxes and filed all
tax returns required to be paid or filed through the date hereof; and except as otherwise disclosed in each of the Registration Statement
and the Prospectus, there is no tax deficiency that has been, or could reasonably be expected to be, asserted against the Company or any
of its subsidiaries or any of their respective properties or assets, except such as would not, individually or in the aggregate, have
a Material Adverse Effect.


 


(bb)
Licenses and Permits. The Company and its subsidiaries possess all licenses, sub-licenses, certificates, permits and other
authorizations issued by, and have made all declarations and filings with, the appropriate federal, state, local or foreign governmental
or regulatory authorities that are necessary for the ownership or lease of their respective properties or the conduct of their respective
businesses as described in each of the Registration Statement and the Prospectus, except where the failure to possess or make the same
would not, individually or in the aggregate, have a Material Adverse Effect; and except as described in each of the Registration Statement
and the Prospectus, neither the Company nor any of its subsidiaries has received notice of any revocation or modification of any such
license, sub-license, certificate, permit or authorization or has any reason to believe that any such license, sub-license, certificate,
permit or authorization will not be renewed in the ordinary course. The Company and its subsidiaries are in compliance with all statutes,
rules and regulations applicable to the ownership, testing, development, manufacture, packaging, processing, use, distribution, storage,
import, export or disposal of any product manufactured or distributed by the Company or its subsidiaries.


 


(cc)
No Labor Disputes. No labor disturbance by or dispute with employees of the Company or any of its subsidiaries exists or,
to the knowledge of the Company, is contemplated or threatened, and the Company is not aware of any existing or imminent labor disturbance
by, or dispute with, the employees of any of its or its subsidiaries’ principal suppliers, contractors or customers, except as would
not have a Material Adverse Effect. Neither the Company nor any of its subsidiaries has received any notice of cancellation or termination
with respect to any collective bargaining agreement to which it is a party.


 






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(dd)
Certain Environmental Matters. (i) The Company and its subsidiaries (x) are in compliance with all, and have not violated
any, applicable federal, state, local and foreign laws (including common law), rules, regulations, requirements, decisions, judgments,
ordinance, policy, code, decrees, orders and other legally enforceable requirements relating to pollution or the protection of human health
or safety, the environment (including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata),
wildlife, natural resources, hazardous or toxic substances or wastes, petroleum or petroleum products, asbestos-containing materials,
mold, pollutants or contaminants (collectively, “Environmental Laws”), (y) have received and are in compliance
with all, and have not violated any, permits, licenses, certificates or other authorizations or approvals required of them under any Environmental
Laws to conduct their respective businesses, and (z) have not received notice of any actual or potential liability or obligation under
or relating to, or any actual or potential violation of, any Environmental Laws, including for the investigation or remediation of any
disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants, and have no knowledge of any event or condition
that would reasonably be expected to result in any such notice; (ii) there are no costs or liabilities associated with Environmental Laws
of or relating to the Company or its subsidiaries, except in the case of each of (i) and (ii) above, for any such matter, as would not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and (iii) except as described in each of the
Registration Statement and the Prospectus, (x) there is no proceeding that is pending, or that is known to be contemplated, against the
Company or any of its subsidiaries under any Environmental Laws in which a governmental entity is also a party, other than such proceeding
regarding which it is reasonably believed no monetary sanctions of $100,000 or more will be imposed, (y) the Company and its subsidiaries
are not aware of any facts or issues regarding compliance with Environmental Laws, or liabilities or other obligations under Environmental
Laws or concerning hazardous or toxic substances or wastes, pollutants or contaminants, that could reasonably be expected to have a material
effect on the capital expenditures, earnings or competitive position of the Company and its subsidiaries, and (z) none of the Company
or its subsidiaries anticipates material capital expenditures relating to any Environmental Laws.


 


(ee)
Compliance with ERISA. (i) Each employee benefit plan, within the meaning of Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended (“ERISA”), for which the Company or any member of its “Controlled
Group” (defined as any entity, whether or not incorporated, that is under common control with the Company within the meaning
of Section 4001(a)(14) of ERISA or any entity that would be regarded as a single employer with the Company under Section 414(b), (c),
(m) or (o) of the Code would have any liability (each, a “Plan”) has been maintained in compliance with its
terms and the requirements of any applicable statutes, orders, rules and regulations, including but not limited to, ERISA and the Code;
(ii) no prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any
Plan excluding transactions effected pursuant to a statutory or administrative exemption; (iii) for each Plan that is subject to the funding
rules of Section 412 of the Code or Section 302 of ERISA, no Plan has failed (whether or not waived), or is reasonably expected to fail,
to satisfy the minimum funding standards (within the meaning of Section 302 of ERISA or Section 412 of the Code) applicable to such Plan;
(iv) no Plan is, or is reasonably expected to be, in “at risk status” (within the meaning of Section 303(i) of ERISA) and
no Plan that is a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA is in “endangered status”
or “critical status” (within the meaning of Sections 304 and 305 of ERISA); (v) the fair market value of the assets of each
Plan exceeds the present value of all benefits accrued under such Plan (determined based on those assumptions used to fund such Plan);
(vi) no “reportable event” (within the meaning of Section 4043(c) of ERISA and the regulations promulgated thereunder) has
occurred or is reasonably expected to occur; (vii) each Plan that is intended to be qualified under Section 401(a) of the Code is so qualified,
and nothing has occurred, whether by action or by failure to act, which would cause the loss of such qualification; (viii) neither the
Company nor any member of the Controlled Group has incurred, nor reasonably expects to incur, any liability under Title IV of ERISA (other
than contributions to the Plan or premiums to the Pension Benefit Guarantee Corporation, in the ordinary course and without default) in
respect of a Plan (including a “multiemployer plan”, within the meaning of Section 4001(a)(3) of ERISA); and (ix) none of
the following events has occurred or is reasonably likely to occur: (A) a material increase in the aggregate amount of contributions required
to be made to all Plans by the Company or its Controlled Group affiliates in the current fiscal year of the Company and its Controlled
Group affiliates compared to the amount of such contributions made in the Company’s and its Controlled Group affiliates’ most
recently completed fiscal year; or (B) a material increase in the Company and its subsidiaries’ “accumulated post-retirement
benefit obligations” (within the meaning of Accounting Standards Codification Topic 715-60) compared to the amount of such obligations
in the Company and its subsidiaries’ most recently completed fiscal year, except in each case with respect to the events or conditions
set forth in (i) through (ix) hereof, as would not, individually or in the aggregate, have a Material Adverse Effect.


 






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(ff)
Disclosure Controls. Except as disclosed in the Registration Statement and the Prospectus, the Company and its subsidiaries maintain
an effective system of “disclosure controls and procedures” (as defined in Rule 13a-15(e) of the Exchange Act) that complies
with the requirements of the Exchange Act and that has been designed to ensure that information required to be disclosed by the Company
in reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified
in the Commission’s rules and forms, including controls and procedures designed to ensure that such information is accumulated
and communicated to the Company’s management as appropriate to allow timely decisions regarding required disclosure. The Company
and its subsidiaries have carried out evaluations of the effectiveness of their disclosure controls and procedures as required by Rule
13a-15 of the Exchange Act.


 


(gg)
Accounting Controls. Except as disclosed in the Registration Statement and the Prospectus, the Company and its subsidiaries maintain
systems of “internal control over financial reporting” (as defined in Rule 13a-15(f) of the Exchange Act) that comply with
the requirements of the Exchange Act and have been designed by, or under the supervision of, their respective principal executive and
principal financial officers, or persons performing similar functions, to provide reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external purposes in accordance with GAAP. Except as disclosed in the Registration
Statement and the Prospectus, the Company and its subsidiaries maintain 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; (iv) the recorded accountability
for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences;
and (v) interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement
and the Prospectus fairly presents the information called for in all material respects and is prepared in accordance with the Commission’s
rules and guidelines applicable thereto. Based on the Company’s most recent evaluation of its internal controls over financial
reporting pursuant to Rule 13a-15(c) of the Exchange Act, except as disclosed in the Registration Statement and the Prospectus, except
as disclosed in the Registration Statement and the Prospectus, there are no material weaknesses in the Company’s internal controls.
The Company’s auditors and the audit committee of the Board of Directors of the Company have been advised of: (i) all significant
deficiencies and material weaknesses in the design or operation of internal controls over financial reporting which have adversely affected
or are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information;
and (ii) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s
internal controls over financial reporting.


 


(hh)
Insurance. Except as otherwise described in the Registration Statement and the Prospectus, the Company and its subsidiaries have
insurance covering their respective properties, operations, personnel and businesses, including business interruption insurance, which
insurance is in amounts and insures against such losses and risks as are adequate to protect the Company and its subsidiaries and their
respective businesses; and neither the Company nor any of its subsidiaries has (i) received notice from any insurer or agent of such
insurer that capital improvements or other expenditures are required or necessary to be made in order to continue such insurance or (ii)
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 at reasonable cost from similar insurers as may be necessary to continue its business.


 






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(ii)
Privacy and Data Protection. (i)(x) To the knowledge of Company, there has been no security breach or other compromise of any
Personal Data (as defined herein) and/or any of the Company’s information technology and computer systems, networks, hardware,
software used to store and/or process any Personal Data (collectively, “IT Systems and Data”), except as would
not, individually or in the aggregate, have a Material Adverse Effect and (y) the Company has not been notified of, and has no knowledge
of any event or condition that would reasonably be expected to result in, any security breach or other compromise to their IT Systems
and Data; (ii) the Company is presently in compliance with all applicable laws or statutes and all applicable judgments, orders, rules
and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating
to the privacy and security of IT Systems and Data and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation
or modification, if any, except as would not, in the case of this clause (ii), individually or in the aggregate, have a Material Adverse
Effect; and (iii) the Company has implemented backup and disaster recovery technology consistent with industry standards and practices.
“Personal Data” means (i) a natural person’s name, street address, telephone number, email address,
photograph, social security number, bank information, or customer or account number; (ii) any information which would qualify as
“personally identifying information” under the Federal Trade Commission Act, as amended; (iii) Protected Health Information
as defined by Health Insurance Portability and Accountability Act, as amended; and (iv) any other piece of information that identifies
such natural person, or his or her family, or identifies a specific person’s health condition or sexual orientation.


 


(jj)
No Unlawful Payments. Neither the Company nor any of its subsidiaries nor any director, officer or employee of the Company or
any of its subsidiaries nor any director, officer, agent, employee, affiliate or other person associated with or acting on behalf of
the Company or any of its subsidiaries has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful
expense relating to political activity; (ii) made or taken an act in furtherance of an offer, promise or authorization of any direct
or indirect unlawful payment or benefit to any foreign or domestic government official or employee, including of any government-owned
or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any
of the foregoing, or any political party or party official or candidate for political office; (iii) violated or is in violation of any
provision of the Foreign Corrupt Practices Act of 1977, as amended, or any applicable law or regulation implementing the OECD Convention
on Combating Bribery of Foreign Public Officials in International Business Transactions, or committed an offence under the Bribery Act
2010 of the United Kingdom or any other applicable anti-bribery or anti-corruption law; or (iv) made, offered, agreed, requested or taken
an act in furtherance of any unlawful bribe or other unlawful benefit, including, without limitation, any rebate, payoff, influence payment,
kickback or other unlawful, or improper payment or benefit. The Company and its subsidiaries have instituted, maintain and enforce, and
will continue to maintain and enforce policies and procedures designed to promote and ensure compliance with all applicable anti-bribery
and anti-corruption laws.


 


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


 






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(ll)
No Conflicts with Sanctions Laws.


 


		(i)	Neither
the Company, nor any of its subsidiaries, directors, officers, or employees, nor, to the knowledge of the Company, any agent or affiliate
of the Company or any of its subsidiaries, or other person associated with or acting on behalf of the Company or any of its subsidiaries
is (i) currently the subject or the target of any sanctions administered or enforced by the U.S. government (including, without limitation,
the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”) or the U.S. Department
of State and including, without limitation, the designation as a “specially designated national” or “blocked person”),
the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority (collectively,
“Sanctions”), nor is (ii) located, organized or resident in a country or territory that is the subject or the
target of Sanctions, including, without limitation, Crimea, Cuba, Iran, North Korea and Syria (each, a “Sanctioned Country”).



 


		(ii)	The
Company will not, directly or indirectly, use the proceeds of the offering of the Shares hereunder, or lend, contribute or otherwise
make available such proceeds to any subsidiary, joint venture partner or other person or entity (i) to fund or facilitate any activities
or business of or with any person that, at the time of such funding or facilitation, is the subject or the target of Sanctions, (ii)
to fund or facilitate any activities of or business in any Sanctioned Country or (iii) in any other manner that will result in a violation
by any person (including any person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions.



 


		(iii)	For
the past five years, the Company and its subsidiaries have not engaged in and are not now engaged in, and will not engage in, any dealings
or transactions with any person that at the time of the dealing or transaction is or was the subject or the target of Sanctions or with
any Sanctioned Country.



 


		(iv)	The
Company has implemented and maintains in effect policies and procedures designed to ensure compliance by the Company, and the Company
and its subsidiaries, and their respective directors, officers and employees, and to the knowledge of the Company, the agents of the
Company and its subsidiaries, are in compliance with all applicable Sanctions, and are not knowingly engaged in any activity that would
reasonably be expected to result in the Company being designated as the subject or target of Sanctions.



 


(mm)
Lending Relationship. The Company (i) does not have any material lending or other relationship with any banking or lending affiliate
of any Sales Agent and (ii) does not intend to use any of the proceeds from the sale of the Placement Shares to repay any outstanding
debt owed to any affiliate of any Sales Agent.


 


(nn)
No Restrictions on Subsidiaries. No subsidiary of the Company is currently prohibited, directly or indirectly, under any agreement
or other instrument to which it is a party or is subject, from paying any dividends to the Company, from making any other distribution
on such subsidiary’s capital stock or similar ownership interest, from repaying to the Company any loans or advances to such subsidiary
from the Company or from transferring any of such subsidiary’s properties or assets to the Company or any other subsidiary of the
Company.


 


(oo)
No Broker’s Fees. Neither the Company nor any of its subsidiaries is a party to any contract, agreement or understanding
with any person (other than this Agreement) that would give rise to a valid claim against the Company or any of its subsidiaries or any
Sales Agent for a brokerage commission, finder’s fee or like payment in connection with the offering and sale of the Placement
Shares.


 






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(pp)
No Registration Rights. No person has the right to require the Company or any of its subsidiaries to register any securities for
sale under the Securities Act by reason of the filing of the Registration Statement with the Commission, the issuance and sale of the
Placement Shares by the Company.


 


(qq)
No Price Stabilization or Manipulation. Neither the Company, nor any of its subsidiaries, nor any of its or their respective directors,
officers or, to the knowledge of the Company, controlling persons has taken, directly or indirectly, any action designed to or that might
reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Common Stock.


 


(rr)
Related-Party Transactions. There are no business relationships or related-party transactions involving the Company or any of
its subsidiaries or any other person required to be described in the Registration Statement and the Prospectus that have not been described
as required.


 


(ss)
No Outstanding Loans or Other Indebtedness. There are no outstanding loans, advances (except normal advances for business expenses
in the ordinary course of business) or guarantees of indebtedness by the Company to or for the benefit of any of the officers or directors
of the Company or any of their respective family members, except as disclosed in the Prospectus. The Company has not directly or indirectly
extended or maintained credit, arranged for the extension of credit, or renewed an extension of credit, in the form of a personal loan
to or for any director or executive officer of the Company.


 


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


 


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


 


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


 


(ww)
Exchange Listing. The Common Stock is currently listed on the Exchange under the trading symbol “KERN”. Except as
disclosed in the Prospectus, the Company has not, in the 12 months preceding the date the first Placement Notice is given hereunder,
received notice from the Exchange to the effect that the Company is not in compliance with the listing or maintenance requirements. Except
as disclosed in the Registration Statement and the Prospectus, 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.


 


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


 






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(yy)
Continuous Offering Agreements. Except for this Agreement, the Company is not party to any other equity distribution or sales
agency agreement or other similar arrangement with any other agent or any other representative in respect of any “at the market
offering” or other continuous equity offering transaction.


 


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


 


(aaa)
No Material Defaults. Neither the Company nor any of its subsidiaries has defaulted on any installment on indebtedness for borrowed
money or on any rental on one or more long-term leases, which defaults, individually or in the aggregate, could reasonably be expected
to result in a Material Adverse Effect.


 


(bbb)
Statistical and Market Data. Nothing has come to the attention of the Company that has caused the Company to believe that the
statistical and market-related data included or incorporated by reference in each of the Registration Statement and the Prospectus is
not based on or derived from sources that are reliable and accurate in all material respects.


 


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


 


The
Company acknowledges that the Sales Agents and, for purposes of the opinions to be delivered pursuant to Section 7 hereof, counsel
to the Company and counsel to the Sales Agents, will rely upon the accuracy and truthfulness of the foregoing representations and hereby
consents to such reliance.


 


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


 


(a)
Registration Statement Amendments. After the date of this Agreement and during any period in which a Prospectus relating to any
Placement Shares is required to be delivered by the Sales Agents under the Securities Act (including in circumstances where such requirement
may be satisfied pursuant to Rule 172 under the Securities Act), (i) the Company will notify the Sales Agents promptly of the time when
any subsequent amendment to the Registration Statement, other than documents incorporated by reference, has been filed with the Commission
and/or has become effective or any subsequent supplement to the Prospectus has been filed and of any request by the Commission for any
amendment or supplement to the Registration Statement or Prospectus or for additional information, (ii) the Company will prepare and
file with the Commission, promptly upon the Sales Agents’ request, any amendments or supplements to the Registration Statement
or Prospectus that, in each Sales Agent’s reasonable opinion, may be necessary or advisable in connection with the distribution
of the Placement Shares by the Sales Agents (provided, however, that the failure of the Sales Agents to make such request
shall not relieve the Company of any obligation or liability hereunder, or affect the Sales Agents’ right to rely on the representations
and warranties made by the Company in this Agreement, and provided, further, that the only remedy the Sales Agents shall
have with respect to the failure to make such filing shall be to cease making sales under this Agreement until such amendment or supplement
is filed); (iii) the Company will not file any amendment or supplement to the Registration Statement or Prospectus, other than documents
incorporated by reference, relating to the Placement Shares or a security convertible into the Placement Shares unless a copy thereof
has been submitted to the Sales Agents within a reasonable period of time before the filing and the Sales Agents have not reasonably
objected thereto (provided, however, that the failure of the Sales Agents to make such objection shall not relieve the
Company of any obligation or liability hereunder, or affect the Sales Agents’ right to rely on the representations and warranties
made by the Company in this Agreement, and provided, further, that the only remedy the Sales Agents shall have with respect
to the failure by the Company to obtain such consent shall be to cease making sales under this Agreement); (iv) the Company will furnish
to the Sales Agents at the time of filing thereof a copy of any document that upon filing is deemed to be incorporated by reference into
the Registration Statement or Prospectus, except for those documents available via EDGAR; (v) the Company will cause each amendment or
supplement to the Prospectus, other than documents incorporated by reference, to be filed with the Commission as required pursuant to
the applicable paragraph of Rule 424(b) of the Securities Act (without reliance on Rule 424(b)(8) of the Securities Act) or, in the case
of any documents incorporated by reference, to be filed with the Commission as required pursuant to the Exchange Act, within the time
period prescribed (the determination to file or not file any amendment or supplement with the Commission under this Section 7(a),
based on the Company’s reasonable opinion or reasonable objections, shall be made exclusively by the Company).


 






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(b)
Notice of Commission Stop Orders. The Company will advise the Sales Agents, promptly after it receives notice or obtains knowledge
thereof, of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any notice
objecting to, or other order preventing or suspending the use of, the Prospectus, of the suspension of the qualification of the Placement
Shares for offering or sale in any jurisdiction, or of the initiation of any proceeding for any such purpose or any examination pursuant
to Section 8(e) of the Securities Act, or if the Company becomes the subject of a proceeding under Section 8A of the Securities Act in
connection with the offering of the Placement Shares; and it will promptly use its commercially reasonable efforts to prevent the issuance
of any stop order or to obtain its withdrawal if such a stop order should be issued. Until such time as any stop order is lifted, the
Sales Agents shall cease making offers and sales under this Agreement.


 


(c)
Delivery of Prospectus; Subsequent Changes. During any period in which a Prospectus relating to the Placement Shares is required
to be delivered by the Sales Agents under the Securities Act with respect to a pending sale of the Placement Shares (including in circumstances
where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Company will comply with all requirements
imposed upon it by the Securities Act, as from time to time in force, and to file on or before their respective due dates all reports
and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Sections 13(a),
13(c), 14, 15(d) or any other provision of or under the Exchange Act. If during such period any event occurs as a result of which the
Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances then existing, not misleading, or if during such period it is necessary
to amend or supplement the Registration Statement or Prospectus to comply with the Securities Act, the Company will promptly notify the
Sales Agents to suspend the offering of Placement Shares during such period and the Company will promptly amend or supplement the Registration
Statement or Prospectus (at the expense of the Company) so as to correct such statement or omission or effect such compliance; provided,
however, that the Company may delay the filing of any amendment or supplement if, in the judgment of the Company, it is in the
best interest of the Company.


 


(d)
Listing of Placement Shares. During any period in which the Prospectus relating to the Placement Shares is required to be delivered
by the Sales Agents under the Securities Act with respect to a pending sale of the Placement Shares (including in circumstances where
such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Company will use commercially reasonable efforts
to cause the Placement Shares to be listed on the Exchange and to qualify the Placement Shares for sale under the securities laws of
such jurisdictions as the Sales Agents reasonably designate and to continue such qualifications in effect so long as required for the
distribution of the Placement Shares; provided, however, that the Company shall not be required in connection therewith
to qualify as a foreign corporation or dealer in securities or file a general consent to service of process in any jurisdiction.


 






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


 


(f)
Earnings Statement. The Company will make generally available to its security holders and the Sales Agents as soon as practicable,
but in any event not later than 15 months after the end of the Company’s current fiscal quarter, an earnings statement of the Company
and its subsidiaries (which need not be audited) covering a 12-month period that complies with Section 11(a) and Rule 158 of the Securities
Act. The terms “earnings statement” and “make generally available to its security holders” shall have the meanings
set forth in Rule 158 under the Securities Act.


 


(g)
Expenses. The Company, whether or not the transactions contemplated hereunder are consummated or this Agreement is terminated
in accordance with the provisions of Section 11 hereunder, will pay the following expenses all incident to the performance of
its obligations hereunder, including, but not limited to, expenses relating to (i) the preparation, printing and filing of the Registration
Statement and each amendment and supplement thereto, of each Prospectus and of each amendment and supplement thereto, (ii) the preparation,
issuance and delivery of the Placement Shares, including any stock or other transfer taxes and any stamp or other duties payable upon
the sale, issuance or delivery of the Placement Shares to the Sales Agents, (iii) the fees and disbursements of the counsel, accountants
and other advisors to the Company in connection with the transactions contemplated by this Agreement; (iv) the qualification of the Placement
Shares under securities laws in accordance with the provisions of Section 7(d) of this Agreement, including filing fees (provided,
however, that any fees or disbursements of counsel for the Sales Agents in connection therewith shall be paid by the Sales Agents
except as set forth in (ix) below), (v) the printing and delivery to the Sales Agents of copies of the Prospectus and any amendments
or supplements thereto, and of this Agreement, (vi) the fees and expenses incurred in connection with the listing or qualification of
the Placement Shares for trading on the Exchange, (vii) the fees and expenses of the transfer agent or registrar for the Common Stock;
(viii) filing fees and expenses, if any, of the Commission and the FINRA Corporate Financing Department (including, with respect to any
required review by FINRA, the fees and expenses of the Sales Agents’ counsel); and (ix) the Company shall reimburse the Sales Agents
for the fees and disbursements of the Sales Agents’ counsel in an amount not to exceed (a) $50,000 in connection with the establishment
of this at-the-market offering, and (b) thereafter, $3,000 on a quarterly basis (such approval not to be unreasonably withheld, conditioned
or delayed).


 


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


 


(i)
Notice of Other Sales. During the pendency of any Placement Notice given hereunder, the Company shall provide the Sales Agents
notice as promptly as reasonably possible before it offers to sell, contracts to sell, sells, grants any option to sell or otherwise
disposes of any shares of Common Stock (other than Placement Shares offered pursuant to the provisions of this Agreement) or securities
convertible into or exchangeable for Common Stock, warrants or any rights to purchase or acquire Common Stock; provided, that
such notice shall not be required in connection with the (i) issuance, grant or sale of Common Stock, options or other rights to purchase
or otherwise acquire Common Stock, or Common Stock issuable upon the exercise of options or other equity awards, in each case granted
pursuant to any stock option, stock bonus or other stock or compensatory plan or arrangement, whether now in effect or hereafter implemented,
(ii) issuance of securities in connection with an acquisition, merger, or sale or purchase of assets, (iii) issuance or sale of Common
Stock upon conversion of securities or the exercise of warrants, options or other rights then in effect or outstanding, and disclosed
in filings by the Company available on EDGAR or otherwise in writing to the Sales Agents, and (iv) issuance or sale of Common Stock pursuant
to any dividend reinvestment and stock purchase plan that the Company has in effect or may adopt from time to time, provided that
the implementation of such new plan is disclosed to the Sales Agents in advance. If the Company notifies the Sales Agents under this
Section 7(i) of a proposed sale of shares of Common Stock or Common Stock equivalents, the Sales Agents may suspend any offers
and sales of Securities under this Agreement for a period of time deemed appropriate by the Sales Agents.


 






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(j)
Change of Circumstances. The Company will, at any time during a fiscal quarter in which the Company intends to tender a Placement
Notice or sell Placement Shares, advise the Sales Agents promptly after it shall have received notice or obtained knowledge thereof,
of any information or fact that would alter or affect in any material respect any opinion, certificate, letter or other document provided
to the Sales Agents pursuant to this Agreement.


 


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


 


(l)
Required Filings Relating to Placement of Placement Shares. The Company shall set forth in each Annual Report on Form 10-K and
Quarterly Report on Form 10-Q filed by the Company with the Commission in respect of any quarter in which sales of Placement Shares were
made by or through the Sales Agents under this Agreement, with regard to the relevant period, the amount of Placement Shares sold to
or through one of the Sales Agents, the Net Proceeds to the Company and the compensation payable by the Company to such Sales Agent with
respect to such sales of Placement Shares. To the extent that the filing of a prospectus supplement to the Prospectus with the Commission
with respect to any sales of Placement Shares becomes required under Rule 424(b) under the Securities Act, the Company agrees that, on
or before such dates as the Securities Act shall require, the Company will (i) file a prospectus supplement to the Prospectus with the
Commission under the applicable paragraph of Rule 424(b) under the Securities Act, which prospectus supplement will set forth, with regard
to the relevant period, the amount of Placement Shares sold to or through the Sales Agents, the Net Proceeds to the Company and the compensation
payable by the Company to the Sales Agents with respect to such Placement Shares, and (ii) deliver such number of copies of each such
prospectus supplement to each exchange or market on which such sales were effected as may be required by the rules or regulations of
such exchange or market. The Company shall afford the Sales Agents and their counsel with a reasonable opportunity to review and comment
upon, shall consult with the Sales Agents and their counsel on the form and substance of, and shall give due consideration to all such
comments from the Sales Agents or their counsel on, any such filing prior to the issuance, filing or public disclosure thereof; provided,
however, that the Company shall not be required to submit for review (A) any portion of any periodic reports filed with the Commission
under the Exchange Act other than the specific disclosure relating to any sales of Placement Shares and (B) any disclosure contained
in periodic reports filed with the Commission under the Exchange Act if it shall have previously provided the same disclosure for review
in connection with a previous filing.


 


(m)
Representation Dates; Certificate. On or prior to the date the first Placement Notice is given hereunder and each time the Company
subsequently thereafter (i) amends or supplements the Registration Statement or the Prospectus relating to the Placement Shares (other
than (A) a prospectus supplement filed in accordance with Section 7(l) of this Agreement or (B) a supplement or amendment that
relates to an offering of securities other than the Placement Shares) by means of a post-effective amendment, sticker, or supplement
but not by means of incorporation of document(s) by reference to the Registration Statement or the Prospectus relating to the Placement
Shares; (ii) files an annual report on Form 10-K under the Exchange Act (including any Form 10-K/A containing amended financial information
or a material amendment to the previously filed Form 10-K); (iii) files a quarterly report on Form 10-Q under the Exchange Act; (iv)
files a report on Form 8-K containing amended financial information (other than an earnings release, to “furnish” information
pursuant to Items 2.02 or 7.01 of Form 8-K or to provide disclosure pursuant to Item 8.01 of Form 8-K relating to the reclassification
of certain properties as discontinued operations in accordance with Statement of Financial Accounting Standards No. 144) under the Exchange
Act (unless the Sales Agents determine that the information contained in such Form 8-K is not material); or (v) sells Placement Shares
to the Sales Agents as principal at the Point of Sale pursuant to the applicable Placement Notice (each date of filing of one or more
of the documents and each other date referred to in clauses (i) through (v) shall be a “Representation Date”),
the Company shall furnish the Sales Agents within three (3) Trading Days after each Representation Date with a certificate, in the form
attached hereto as Exhibit 7(m). The requirement to provide a certificate under this Section 7(m) shall be waived for any
Representation Date occurring at a time at which no Placement Notice is pending or during any Suspension Period, which waiver shall continue
until the earlier to occur of the date the Company delivers a Placement Notice hereunder (which for such calendar quarter shall be considered
a Representation Date) and the next occurring Representation Date or the termination of any Suspension Period; provided, however,
that such waiver shall not apply for any Representation Date on which the Company files its annual report on Form 10-K. Notwithstanding
the foregoing, if the Company subsequently decides to sell Placement Shares following a Representation Date when the Company relied on
such waiver or following the termination of a Suspension Period and did not provide the Sales Agents with a certificate under this Section
7(m), then before the Company delivers the Placement Notice or the Sales Agents sell any Placement Shares, the Company shall provide
such Sales Agent with a certificate, in the form attached hereto as Exhibit 7(m), dated the date of the Placement Notice.


 






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(n)
Legal Opinion. On or prior to the date the first Placement Notice is given hereunder, the Company shall cause to be furnished
to the Sales Agents the written opinion and negative assurance of Dorsey & Whitney LLP, counsel to the Company (“Company
Counsel”), in form and substance reasonably satisfactory to the Sales Agents. Thereafter, within three (3) Trading Days
after each Representation Date with respect to which the Company is obligated to deliver a certificate pursuant to Section 7(m)
for which no waiver or Suspension Period is applicable pursuant to Section 7(m), and not more than once per calendar quarter,
the Company shall cause to be furnished to the Sales Agents the written opinions and negative assurance of Company Counsel substantially
in the form previously agreed between the Company and the Sales Agents, modified, as necessary, to relate to the Registration Statement
and the Prospectus as then amended or supplemented.


 


(o)
Comfort Letter. On or prior to the date the first Placement Notice is given hereunder and within three (3) Trading Days after
each subsequent Representation Date with respect to which the Company is obligated to deliver a certificate pursuant to Section 7(m)
for which no waiver or Suspension Period is applicable pursuant to Section 7(m), the Company shall cause its independent accountants
to furnish the Sales Agents letters (the “Comfort Letters”), dated the date that the Comfort Letter is delivered,
in form and substance satisfactory to the Sales Agents, (i) confirming that they are an independent registered public accounting firm
within the meaning of the Securities Act, the Exchange Act and the rules and regulations of the PCAOB and are in compliance with the
applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating,
as of such date, the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered
by accountants’ “comfort letters” to the Sales Agents in connection with registered public offerings (the first such
letter, the “Initial Comfort Letter”) and (iii) updating the Initial Comfort Letter with any information that
would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration
Statement and the Prospectus, as amended and supplemented to the date of such letter.


 


(p)
Market Activities. The Company will not, directly or indirectly, (i) take any action designed to cause or result in, or that constitutes
or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Common Stock or (ii) sell, bid for, or purchase the Placement Shares to be issued and sold pursuant to this
Agreement, or pay anyone any compensation for soliciting purchases of the Placement Shares other than the Sales Agents.


 


(q)
Insurance. The Company and its subsidiaries shall maintain, or caused to be maintained, insurance in such amounts and covering
such risks as is reasonable and customary for the business in which it is engaged.


 


(r)
Compliance with Laws. The Company and each of its subsidiaries shall maintain, or cause to be maintained, all material permits,
licenses and other authorizations required by federal, state and local law and regulations in order to conduct their businesses as described
in the Registration Statement and the Prospectus, and the Company and each of its subsidiaries shall conduct their businesses, or cause
their businesses to be conducted, in substantial compliance with such permits, licenses and authorizations and with applicable laws and
regulations, except where the failure to maintain or be in compliance with such permits, licenses and authorizations could not reasonably
be expected to result in a Material Adverse Effect.


 


(s)
Investment Company Act. The Company will conduct its affairs in such a manner so as to reasonably ensure that neither it nor its
subsidiaries is or, after giving effect to the offering and sale of the Placement Shares and the application of proceeds therefrom as
described in the Prospectus, will be, an “investment company” within the meaning of such term under the Investment Company
Act.


 


(t)
Securities Act and Exchange Act. The Company will use its best efforts to comply with all requirements imposed upon it by the
Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings
in, the Placement Shares as contemplated by the provisions hereof and the Prospectus.


 


(u)
No Offer to Sell. Other than the Prospectus, neither the Sales Agents nor the Company (including its agents and representatives,
other than the Sales Agents in its capacity as such) will make, use, prepare, authorize, approve or refer to any written communication
(as defined in Rule 405 under the Securities Act), required to be filed with the Commission, that constitutes an offer to sell or solicitation
of an offer to buy Placement Shares hereunder.


 






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(v)
Sarbanes-Oxley Act. The Company and its subsidiaries will use their best efforts to comply with all effective applicable provisions
of the Sarbanes-Oxley Act.


 


(w)
New Registration Statement. If immediately prior to the third anniversary of the initial effective date of the Registration Statement,
any of the Placement Shares remain unsold, the sale of the Placement Shares under this Agreement shall automatically be suspended unless
and until the Company files a new shelf registration statement relating to the Placement Shares and such new registration statement is
declared effective by the Commission. References herein to the Registration Statement shall include such new shelf registration statement.
If any such new shelf registration statement becomes effective prior to the termination date of this Agreement, the Company agrees to
notify the Sales Agents of such effective date.


 


(x)
Emerging Growth Company. The Company will promptly notify the Sales Agents if the Company ceases to be an Emerging Growth Company
at any time prior to the expiration or termination of this Agreement.


 


8.
Conditions to the Sales Agents’ Obligations. The obligations of the Sales Agents hereunder with respect to any Placement
will be subject to the continuing accuracy and completeness of the representations and warranties made by the Company herein, to the
due performance by the Company of its obligations hereunder, to the completion by the Sales Agents of a due diligence review satisfactory
to the Sales Agents in its reasonable judgment, and to the continuing satisfaction (or waiver by the Sales Agents in its sole discretion)
of the following additional conditions:


 


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


 


(b)
Securities Act Filings Made. The Company shall have filed with the Commission the ATM Prospectus pursuant to Rule 424(b) under
the Securities Act within the applicable time period prescribed for such filing by Rule 424(b) (without reliance on Rule 424(b)(8) of
the Securities Act). All other filings with the Commission required by Rule 424 under the Securities Act to have been filed prior to
the issuance of any Placement Notice hereunder shall have been made within the applicable time period prescribed for such filing by Rule
424.


 


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


 






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


 


(e)
Material Changes. Except as contemplated in the Prospectus, or disclosed in the Company’s reports filed with the Commission,
there shall not have been any material adverse change in the authorized capital stock of the Company or any Material Adverse Effect or
any development that could reasonably be expected to result in a Material Adverse Effect, or any downgrading in or withdrawal of the
rating assigned to any of the Company’s securities (other than asset backed securities) by any rating organization or a public
announcement by any rating organization that it has under surveillance or review its rating of any of the Company’s securities
(other than asset backed securities), the effect of which, in the case of any such action by a rating organization described above, in
the reasonable judgment of the Sales Agents (without relieving the Company of any obligation or liability it may otherwise have), is
so material as to make it impracticable or inadvisable to proceed with the offering of the Placement Shares on the terms and in the manner
contemplated by this Agreement and the Prospectus.


 


(f)
Company Counsel Legal Opinion. The Sales Agents shall have received the opinions and negative assurances of Company Counsel required
to be delivered pursuant Section 7(n) on or before the date on which such delivery of such opinions and negative assurances is
required pursuant to Section 7(n).


 


(g)
Sales Agents’ Counsel Legal Opinion. The Sales Agents shall have received from White & Case LLP, counsel to the Sales
Agents, on or before the date on which the delivery of the Company Counsel legal opinion is required pursuant to Section 7(n),
such negative assurances with respect to such matters as the Sales Agents may reasonably require, and the Company shall have furnished
to such counsel such documents as they request for enabling them to pass upon such matters.


 


(h)
Comfort Letter. The Sales Agents shall have received the Comfort Letter required to be delivered pursuant Section 7(o)
on or before the date on which such delivery of such Comfort Letter is required pursuant to Section 7(o).


 


(i)
Representation Certificate. The Sales Agents shall have received the certificate required to be delivered pursuant to Section
7(m) on or before the date on which delivery of such certificate is required pursuant to Section 7(m).


 


(j)
Secretary’s Certificate. The Sales Agents shall have received a certificate, signed on behalf of the Company by its corporate
Secretary, certifying as to (i) the Certificate of Incorporation of the Company, (ii) the By-laws of the Company, (iii) the resolutions
of the Board of Directors of the Company (or a committee thereof) authorizing the execution, delivery and performance of this Agreement
and the issuance of the Placement Shares and (iv) the incumbency of the officers duly authorized to execute this Agreement and the other
documents contemplated by this Agreement.


 


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


 


(l)
Other Materials. On each date on which the Company is required to deliver a certificate pursuant to Section 7(m), the Company
shall have furnished to the Sales Agents such appropriate further opinions, certificates, letters and documents as the Sales Agents may
have reasonably requested. All such opinions, certificates, letters and other documents shall have been in compliance with the provisions
hereof. The Company will furnish the Sales Agents with such conformed copies of such opinions, certificates, letters and other documents
as the Sales Agents shall have reasonably requested.


 






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(m)
Approval for Listing. The Placement Shares shall have been approved for listing on the Exchange, subject only to notice of issuance.


 


(n)
No Termination Event. There shall not have occurred any event that would permit the Sales Agents to terminate this Agreement pursuant
to Section 11(a).


 


(o)
FINRA. The Sales Agents shall have received a letter from the Corporate Financing Department of FINRA confirming that such department
has determined to raise no objection with respect to the fairness or reasonableness of the terms and arrangements related to the sale
of the Placement Shares pursuant to this Agreement.


 


9.
Indemnification and Contribution.


 


(a)
Company Indemnification. The Company agrees to indemnify and hold harmless the Sales Agents, the directors, officers, members,
partners, employees and agents of each Sales Agent each broker dealer affiliate of each Sales Agent, and each Sales Agent Affiliate,
if any, from and against any and all losses, claims, liabilities, expenses and damages (including, but not limited to, any and all reasonable
investigative, legal and other expenses incurred in connection with, and any and all amounts paid in settlement (in accordance with Section
9(c)) of, any action, suit or proceeding between any of the indemnified parties and any indemnifying parties or between any indemnified
party and any third party, or otherwise, or any claim asserted), as and when incurred, to which each Sales Agent, or any such person,
may become subject under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, liabilities, expenses or damages arise out of or are based, directly or indirectly, on (x)
any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or the Prospectus or any
amendment or supplement thereto or in any free writing prospectus or in any application or other document executed by or on behalf of
the Company or based on written information furnished by or on behalf of the Company filed in any jurisdiction in order to qualify the
Common Stock under the securities laws thereof or filed with the Commission, (y) the omission or alleged omission to state in any such
document a material fact required to be stated in it or necessary to make the statements in it not misleading or (z) any breach by any
of the indemnifying parties of any of their respective representations, warranties and agreements contained in this Agreement; provided,
however, that this indemnity agreement shall not apply to the extent that such loss, claim, liability, expense or damage arises
from the sale of the Placement Shares pursuant to this Agreement and is caused directly by an untrue statement or omission made in reliance
upon and in strict conformity with written information relating to each Sales Agent and furnished to the Company by such Sales Agent
expressly for inclusion in any document as described in clause (x) of this Section 9(a). This indemnity agreement will be in addition
to any liability that the Company might otherwise have.


 


(b)
The Sales Agent Indemnification. Each Sales Agent agrees to indemnify and hold harmless the Company and its directors and each
officer of the Company that signed the Registration Statement, and each person, if any, who (i) controls the Company within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act or (ii) is controlled by or is under common control with the Company
(each, a “Company Affiliate”) from and against any and all losses, claims, liabilities, expenses and damages
(including, but not limited to, any and all reasonable investigative, legal and other expenses incurred in connection with, and any and
all amounts paid in settlement (in accordance with Section 9(c)) of, any action, suit or proceeding between any of the indemnified
parties and any indemnifying parties or between any indemnified party and any third party, or otherwise, or any claim asserted), as and
when incurred, to which any such Company Affiliate, may become subject under the Securities Act, the Exchange Act or other federal or
state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, liabilities, expenses or damages arise
out of or are based, directly or indirectly, on (x) any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or the Prospectus or any amendment or supplement thereto, or (y) the omission or alleged omission to state
in any such document a material fact required to be stated in it or necessary to make the statements in it not misleading; provided,
however, that this indemnity agreement shall apply only to the extent that such loss, claim, liability, expense or damage is caused
directly by an untrue statement or omission made in reliance upon and in strict conformity with written information relating to the Sales
Agents and furnished to the Company by each Sales Agent expressly for inclusion in any document as described in clause (x) of this Section
9(b), which the Company acknowledges consists solely of the material referred to in Schedule 5 hereto, as updated from
time to time.


 






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(c) Procedure. Any party that proposes to assert the right to be
indemnified under this Section 9 will, promptly after receipt of notice of commencement of any action against such party in respect
of which a claim is to be made against an indemnifying party or parties under this Section 9, notify each such indemnifying party
of the commencement of such action, enclosing a copy of all papers served, but the omission so to notify such indemnifying party will
not relieve the indemnifying party from (i) any liability that it might have to any indemnified party otherwise than under this Section
9 and (ii) any liability that it may have to any indemnified party under the foregoing provision of this Section 9 unless,
and only to the extent that, such omission results in the forfeiture of substantive rights or defenses by the indemnifying party. If
any such action is brought against any indemnified party and it notifies the indemnifying party of its commencement, the indemnifying
party will be entitled to participate in and, to the extent that it elects by delivering written notice to the indemnified party promptly
after receiving notice of the commencement of the action from the indemnified party, jointly with any other indemnifying party similarly
notified, to assume the defense of the action, with counsel reasonably satisfactory to the indemnified party, and after notice from the
indemnifying party to the indemnified party of its election to assume the defense, the indemnifying party will not be liable to the indemnified
party for any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred
by the indemnified party in connection with the defense. The indemnified party will have the right to employ its own counsel in any such
action, but the fees, expenses and other charges of such counsel will be at the expense of such indemnified party unless (1) the employment
of counsel by the indemnified party has been authorized in writing by the indemnifying party, (2) the indemnified party has reasonably
concluded (based on advice of counsel) that there may be legal defenses available to it or other indemnified parties that are different
from or in addition to those available to the indemnifying party, (3) a conflict or potential conflict exists (based on advice of counsel
to the indemnified party) between the indemnified party and the indemnifying party (in which case the indemnifying party will not have
the right to direct the defense of such action on behalf of the indemnified party) or (4) the indemnifying party has not in fact employed
counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, in each
of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the indemnifying party or parties.
It is understood that the indemnifying party or parties shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm admitted to practice
in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be
reimbursed by the indemnifying party promptly after the indemnifying party received a written invoice relating to the fees, disbursements
and other charges in reasonable detail. An indemnifying party will not, in any event, be liable for any settlement of any action or claim
effected without its written consent. No indemnifying party shall, without the prior written consent of each indemnified party, settle
or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding relating to the matters
contemplated by this Section 9 (whether or not any indemnified party is a party thereto), unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all liability arising or that may arise out of such claim, action
or proceeding.


 


(d) Contribution.
In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in the foregoing paragraphs
of this Section 9 is applicable in accordance with its terms but for any reason is held to be unavailable from the Company or the
Sales Agents, the Company and each Sales Agent will contribute to the total losses, claims, liabilities, expenses and damages (including
any investigative, legal and other expenses reasonably incurred in connection with, and any amount paid in settlement of, any action,
suit or proceeding or any claim asserted, but after deducting any contribution received by the Company from persons other than the Sales
Agents, such as persons who control the Company within the meaning of the Securities Act, officers of the Company who signed the Registration
Statement and directors of the Company, who also may be liable for contribution) to which the Company and the Sales Agents may be subject
in such proportion as shall be appropriate to reflect the relative benefits received by the Company on the one hand and the Sales Agents
on the other. The relative benefits received by the Company on the one hand and the Sales Agents on the other hand shall be deemed to
be in the same proportion as the total Net Proceeds from the sale of the Placement Shares (before deducting expenses) received by the
Company bear to the total compensation received by the Sales Agents from the sale of Placement Shares on behalf of the Company. If, but
only if, the allocation provided by the foregoing sentence is not permitted by applicable law, the allocation of contribution shall be
made in such proportion as is appropriate to reflect not only the relative benefits referred to in the foregoing sentence but also the
relative fault of the Company, on the one hand, and the Sales Agents, on the other, with respect to the statements or omission that resulted
in such loss, claim, liability, expense or damage, or action in respect thereof, as well as any other relevant equitable considerations
with respect to such offering. Such relative fault shall be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company
or the Sales Agents, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Sales Agents agree that it would not be just and equitable if contributions pursuant to
this Section 9(d) were to be determined by pro rata allocation or by any other method of allocation that does not take into account
the equitable considerations referred to herein. The amount paid or payable by an indemnified party as a result of the loss, claim, liability,
expense, or damage, or action in respect thereof, referred to above in this Section 9(d) shall be deemed to include, for the purpose
of this Section 9(d), any legal or other expenses reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim to the extent consistent with Section 9(c) hereof. Notwithstanding the foregoing provisions
of this Section 9(d), the Sales Agents shall not be required to contribute any amount in excess of the commissions received by
it under this Agreement and no person found guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities
Act) will be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section
9(d), any person who controls a party to this Agreement within the meaning of the Securities Act will have the same rights to contribution
as that party (and any officers, directors, members, partners, employees or agents of the Sales Agents and each broker dealer affiliate
of each Sales Agent will have the same rights to contribution as the Sales Agents), and each officer of the Company who signed the Registration
Statement and each director of the Company will have the same rights to contribution as the Company, subject in each case to the provisions
hereof. Any party entitled to contribution, promptly after receipt of notice of commencement of any action against such party in respect
of which a claim for contribution may be made under this Section 9(d), will notify any such party or parties from whom contribution
may be sought, but the omission to so notify will not relieve that party or parties from whom contribution may be sought from any other
obligation it or they may have under this Section 9(d) except to the extent that the failure to so notify such other party materially
prejudiced the substantive rights or defenses of the party from whom contribution is sought. Except for a settlement entered into pursuant
to the last sentence of Section 9(c) hereof, no party will be liable for contribution with respect to any action or claim settled
without its written consent if such consent is required pursuant to Section 9(c) hereof.


 






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10. Representations
and Agreements to Survive Delivery. The indemnity and contribution agreements contained in Section 9 of this Agreement and
all representations and warranties of the Company herein or in certificates delivered pursuant hereto shall survive, as of their respective
dates, regardless of (i) any investigation made by or on behalf of each Sales Agent, any controlling person of each Sales Agent, or the
Company (or any of their respective officers, directors, members or controlling persons), (ii) delivery and acceptance of the Placement
Shares and payment therefor or (iii) any termination of this Agreement.


 


11. Termination.


 


(a) The
Sales Agents shall have the right by giving notice as hereinafter specified at any time to terminate this Agreement if (i) any Material
Adverse Effect, or any development that could reasonably be expected to result in a Material Adverse Effect has occurred that, in the
reasonable judgment of the Sales Agents, may materially impair the ability of the Sales Agents to sell the Placement Shares hereunder,
(ii) the Company shall have failed, refused or been unable to perform any agreement on its part to be performed hereunder; provided,
however, in the case of any failure of the Company to deliver (or cause another person to deliver) any certification, opinion,
or letter required under Sections 7(m), 7(n), or 7(o), the Sales Agents’ right to terminate shall not arise
unless such failure to deliver (or cause to be delivered) continues for more than thirty (30) days from the date such delivery was required,
(iii) any other condition of the Sales Agents’ obligations hereunder is not fulfilled, or (iv) any suspension or limitation of trading
in the Placement Shares or in securities generally on the Exchange shall have occurred (including automatic halt in trading pursuant to
market-decline triggers, other than those in which solely program trading is temporarily halted), or a major disruption of securities
settlements or clearing services in the United States shall have occurred, or minimum prices for trading have been fixed on the Exchange.
Any such termination shall be without liability of any party to any other party except that the provisions of Section 7(g) (Expenses),
Section 9 (Indemnification and Contribution), Section 10 (Representations and Agreements to Survive Delivery), Section
11(f), Section 16 (Applicable Law; Consent to Jurisdiction) and Section 17 (Waiver of Jury Trial) hereof shall remain
in full force and effect notwithstanding such termination. If the Sales Agents elect to terminate this Agreement as provided in this Section
11(a), each Sales Agent shall provide the required notice as specified in Section 12 (Notices).


 


(b) The
Company shall have the right, by giving ten (10) days’ notice as hereinafter specified in Section 12, to terminate this Agreement
in its sole discretion at any time after the date of this Agreement. Any such termination shall be without liability of any party to any
other party except that the provisions of Section 7(g), Section 9, Section 10, Section 11(f), Section 16
and Section 17 hereof shall remain in full force and effect notwithstanding such termination.


 


(c) The
Sales Agents shall have the right, by giving ten (10) days’ notice as hereinafter specified in Section 12, to terminate this
Agreement in its sole discretion at any time after the date of this Agreement. Any such termination shall be without liability of any
party to any other party except that the provisions of Section 7(g), Section 9, Section 10, Section 11(f),
Section 16 and Section 17 hereof shall remain in full force and effect notwithstanding such termination.


 


(d) Unless
earlier terminated pursuant to this Section 11, this Agreement shall automatically terminate upon the issuance and sale of all
of the Placement Shares to or through the Sales Agents on the terms and subject to the conditions set forth herein; provided that
the provisions of Section 7(g), Section 9, Section 10, Section 11(f), Section 16 and Section 17
hereof shall remain in full force and effect notwithstanding such termination.


 


(e) This
Agreement shall remain in full force and effect unless terminated pursuant to Sections 11(a), (b), (c) or (d)
above or otherwise by mutual agreement of the parties; provided, however, that any such termination by mutual agreement
shall in all cases be deemed to provide that Section 7(g), Section 9, Section 10, Section 11(f), Section
16 and Section 17 shall remain in full force and effect.


 


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


 






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


 


Oppenheimer & Co. Inc.


85 Broad Street, 26 th
Floor


New York, New York 10004


Attention: Peter Vogelsang


E-mail: Peter.vogelsang@opco.com


 


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


 


White & Case LLP


1221 Avenue of the Americas


New York, New York 10020


 


and if to the Company, shall be delivered to:


 


Akerna Corp.


1550 Larimer Street, #246


Denver, Colorado 80202


Attention: John Fowle


Email: john.fowle@akerna.com


 


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


 


Dorsey & Whitney LLP


1400 Wewatta Street, Suite 400


Denver, Colorado 80202


Atttention: Jason K. Brenkert


Email: brenkert.jason@dorsey.com


 


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


 


An electronic communication
(“Electronic Notice”) shall be deemed written notice for purposes of this Section 12 if sent to the electronic
mail address specified by the receiving party under separate cover. Electronic Notice shall be deemed received at the time the party sending
Electronic Notice receives confirmation of receipt by the receiving party (other than pursuant to auto-reply). Any party receiving Electronic
Notice may request and shall be entitled to receive the notice on paper, in a nonelectronic form (“Nonelectronic Notice”)
which shall be sent to the requesting party within ten (10) days of receipt of the written request for Nonelectronic Notice.


 


13. Successors
and Assigns. This Agreement shall inure to the benefit of and be binding upon the Company and the Sales Agents and their respective
successors and permitted assigns and, as to Sections 5(b) and 9, the other indemnified parties specified therein. References to
any of the parties contained in this Agreement shall be deemed to include the successors and permitted assigns of such party. Nothing
in this Agreement, express or implied, is intended to confer upon any other person any rights, remedies, obligations or liabilities under
or by reason of this Agreement, except as expressly provided in this Agreement. Neither party may assign its rights or obligations under
this Agreement without the prior written consent of the other party; provided, however, that the Sales Agents may assign
its rights and obligations hereunder to an affiliate of the Sales Agents without obtaining the Company’s consent.


 






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


 


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


 


16. Applicable
Law; Consent to Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the internal laws of the State
of New York, without regard to the principles of conflicts of laws. Each party hereby irrevocably submits to the non-exclusive jurisdiction
of the state and federal courts sitting in the City of New York, Borough of Manhattan, for the adjudication of any dispute hereunder or
in connection with any transaction contemplated hereby, and hereby irrevocably waives, and agrees not to assert in any suit, action or
proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is
brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Each party hereby irrevocably waives
personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof (certified
or registered mail, return receipt requested) to such party at the address in effect for notices to it under this Agreement and agrees
that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed
to limit in any way any right to serve process in any manner permitted by law.


 


17. Waiver
of Jury Trial. The Company and each Sales Agent each hereby irrevocably waives any right it may have to a trial by jury in respect
of any claim based upon or arising out of this Agreement or any transaction contemplated hereby.


 


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


 


(a) each
Sales Agent is acting solely as agent in connection with the sale of the Placement Shares contemplated by this Agreement and the process
leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective affiliates, stockholders
(or other equity holders), creditors or employees or any other party, on the one hand, and each Sales Agent, on the other hand, has been
or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether the Sales Agents have
advised or are advising the Company on other matters, and each Sales Agent has no obligation to the Company with respect to the transactions
contemplated by this Agreement, except the obligations expressly set forth in this Agreement;


 


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


 


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


 






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


 


(e) the
Company waives, to the fullest extent permitted by law, any claims it may have against each Sales Agent, for breach of fiduciary duty
or alleged breach of fiduciary duty and agrees that each Sales Agent shall have no liability (whether direct or indirect, in contract,
tort or otherwise) to the Company in respect of such a fiduciary claim or to any person asserting a fiduciary duty claim on behalf of
or in right of the Company, including stockholders, partners, employees or creditors of the Company.


 


19. Use
of Information. Each Sales Agent may not provide any information 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.


 


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


 


21. Effect
of Headings; Knowledge of the Company. The section and Exhibit headings herein are for convenience only and shall not affect the construction
hereof. All references in this Agreement to the “knowledge of the Company” or the “Company’s knowledge”
or similar qualifiers shall mean the actual knowledge of the directors and officers of the Company, after due inquiry.


 


22. Definitions.
As used in this Agreement, the following term has the meaning set forth below:


 


(a) “Applicable
Time” means the date of this Agreement, each Representation Date, each date on which a Placement Notice is given, each Point
of Sale, and each Settlement Date.


 


[Remainder
of Page Intentionally Blank]


 




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


 


	 	Very truly yours,
	 	 
	 	AKERNA CORP.
	 	 	 	                    
	 	By: 	/s/ John Fowle
	 	 	Name:	John Fowle
	 	 	Title:	Chief Financial Officer
	 	 	 	 
	 	ACCEPTED as of the date first-above written:
	 	 	 	 
	 	OPPENHEIMER & CO. INC.
	 	 	 	 
	 	By: 	/s/ Douglas Cameron
	 	 	Name: 	Douglas Cameron
	 	 	Title:	Managing Director
	 	 	 	 
	 	A.G.P. / ALLIANCE GLOBAL PARTNERS
	 	 	 	 
	 	By: 	/s/ Thomas J. Higgins
	 	 	Name: 	Thomas J. Higgins
	 	 	Title:	Managing Director



 




    30


     


    

 


Schedule
1


 


FORM OF PLACEMENT NOTICE


 


	From:	Akerna Corp.
	To:	Oppenheimer & Co., Inc.
	 	Attention:
	Subject:	At-The-Market Offering-Placement Notice




 


Gentlemen:


 


Pursuant to the terms and subject to the conditions
contained in the Equity Distribution Agreement between Akerna Corp., a Delaware corporation (the “Company”), and Oppenheimer
& Co., Inc. and A.G.P./Alliance Global Partners (the “Sales Agents”) dated July 23, 2021 (the “Agreement”),
I hereby request on behalf of the Company that [Oppenheimer & Co. Inc.][A.G.P./Alliance Global Partners] sell up to [____] shares
of the Company’s common stock, par value $0.0001 per share, at a minimum market price of $[_______] per share, during the period
beginning [MONTH/DAY/TIME] and ending [MONTH/DAY/TIME].


 




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Schedule
2


 


Notice Parties


 


Akerna Corp.


 


Jessica Billingsley, Chief Executive
Officer


 


John Fowle, Chief Financial Officer


 


Oppenheimer & Co. Inc.


 


Thomas Villano - Thomas.Villano@opco.com


 


Matthew Weitz - Matthew.Weitz@opco.com


 


Chris DeFalco - Chris.DeFalco@opco.com


 


Keith Clark – Keith.Clark@opco.com


 


Doug Cameron - Douglas.Cameron@opco.com


 


Andrew Beatus - Andrew.Beatus@opco.com


 


A.G.P./Alliance Global Partners


 


Thomas J. Higgins - atm@allianceg.com


 




    32


     


    

 


Schedule
3


 


Compensation


 


The Sales Agent selected by the Company in its
Placement Notice shall be paid compensation equal to 3.0% of the gross proceeds from the sales of Placement Shares pursuant to the terms
of this Agreement and shall be reimbursed for certain expenses in accordance with Section 7(g) of this Agreement.


 


The foregoing rate of compensation shall not apply
when such Sales Agent acts as principal, in which case the Company may sell the Placement Shares to such Sales Agent as principal at a
price agreed upon at the relevant Point of Sale pursuant to the applicable Placement Notice.


 




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Schedule
4


 


Schedule of Subsidiaries


 


MJ Freeway, LLC


 


solo sciences, inc.


 


Trellis Solutions, Inc.


 


Akerna Canada Holdings Inc.


 


Akerna Canada Ample Exchange Inc.


 


Ample Organics Inc.


 




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Schedule
5


 


Information Provided By Sales Agents


 


The parties acknowledge and
agree that, for purposes of Sections 6(b) and 9 of this Agreement, there is no information provided by the Sales Agents.


 


The information in this Schedule
shall be updated from time to time in connection with the filing of a new Prospectus or otherwise as necessary.


 




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Exhibit 7(m)


 


OFFICER CERTIFICATE


 


The undersigned, the duly
qualified and appointed ____________________ of Akerna Corp., a Delaware corporation (the “Company”),
does hereby certify in such capacity and on behalf of the Company, pursuant to Section 7(m) of the Equity Distribution Agreement,
dated July 23, 2021 (the “Equity Distribution Agreement”), between the Company and Oppenheimer & Co. Inc.
and A.G.P./Alliance Global Partners, that:


 


		(i)	the representations and warranties of the Company in Section 6 of the Equity Distribution Agreement
(A) to the extent such representations and warranties are subject to qualifications and exceptions contained therein relating to materiality
or Material Adverse Effect, are true and correct on and as of the date hereof with the same force and effect as if expressly made on and
as of the date hereof, except for those representations and warranties that speak solely as of a specific date and which were true and
correct as of such date, and (B) to the extent such representations and warranties are not subject to any qualifications or exceptions,
are true and correct in all material respects as of the date hereof as if made on and as of the date hereof with the same force and effect
as if expressly made on and as of the date hereof except for those representations and warranties that speak solely as of a specific date
and which were true and correct as of such date; and;



 


		(ii)	the Company has complied with all agreements and satisfied all conditions on its part to be performed
or satisfied pursuant to the Equity Distribution Agreement at or prior to the date hereof;



 


		(iii)	as of the date hereof, (i) the Registration Statement does not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading,
(ii) the Prospectus does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading and
(iii) no event has occurred as a result of which it is necessary to amend or supplement the Registration Statement or the Prospectus in
order to make the statements therein not untrue or misleading for clauses (i) and (ii) above, respectively, to be true and correct;



 


		(iv)	there has been no Material Adverse Effect since the date as of which information is given in the Prospectus,
as amended or supplemented;



 


		(v)	the Company does not possess any material non-public information; and



 


		(vi)	the aggregate offering price of the Placement Shares that may be issued and sold pursuant to the Equity
Distribution Agreement and the maximum number or amount of Placement Shares that may be sold pursuant to the Equity Distribution Agreement
have been duly authorized by the Company’s board of directors or a duly authorized committee thereof.



 


Terms used herein and not defined herein have
the meanings ascribed to them in the Equity Distribution Agreement.


 


	 	By: 	 	 
	 	 	Name:  	 
	 	 	Title:	 
	Date:	 	 	 



 


 


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