Exhibit 10.1


 


AT THE MARKET OFFERING AGREEMENT


 


November 22, 2019


 


H.C. Wainwright & Co., LLC

430 Park Avenue

New York, NY 10022


 


Ladies
and Gentlemen:


 


eMagin Corporation,
a corporation organized under the laws of Delaware (the “Company”), confirms its agreement (this “Agreement”)
with H.C. Wainwright & Co., LLC (the “Manager”) as follows:


 


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


 


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


 


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


 


“Affiliate”
means with respect to any Person, any other Person that, directly or indirectly through one or more intermediaries, controls or
is controlled by or is under common control with such Person as such terms are used in and construed under Rule 405 under the Act.


 


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


 


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


 


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


 


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


 


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


 


“Commission”
shall mean the United States Securities and Exchange Commission.


 






     


     


    

 


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


 


“Common
Stock Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to
acquire at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument
that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common
Stock.


 


“Company
Auditor” means RSM US LLP, with offices located at 1185 Avenue of the Americas, New York, New York 10036.


 


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


 


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


 


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


 


“Environmental
Laws” shall have the meaning ascribed to such term in Section 3.1(hh).


 


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


 


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


 


“FCPA”
means the Foreign Corrupt Practices Act of 1977, as amended.


 


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


 


“FINRA”
means the Financial Industry Regulatory Authority.


 


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


 


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


 






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


 


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


 


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


 


“Liens”
means a lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.


 


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


 


“Material
Adverse Effect” means (i) a material adverse effect on the legality, validity or enforceability of this Agreement, (ii)
a material adverse effect on the results of operations, assets, business, prospects or condition (financial or otherwise) of the
Company and the Subsidiaries, taken as a whole, from that set forth in the Registration Statement, the Base Prospectus, any Prospectus
Supplement, the Prospectus or the Incorporated Documents, or (iii) a material adverse effect on the Company’s ability to
perform in any material respect on a timely basis its obligations under this Agreement.


 


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


 


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


 


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


 


“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.


 


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


 


“Proceeding”
means an action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation or partial
proceeding, such as a deposition), whether commenced or threatened.


 






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


 


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


 


“Registration
Statement” shall mean the shelf registration statement (File Number 333-218838) on Form S-3, including exhibits
and financial statements and any prospectus supplement relating to the Shares that is filed with the Commission pursuant to Rule 424(b)
and deemed part of such registration statement pursuant to Rule 430B, as amended on each Effective Date and, in the event
any post-effective amendment thereto becomes effective, shall also mean such registration statement as so amended.


 


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


 


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


 


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


 


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


 


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


 


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


 


“Subsidiary”
means any subsidiary of the Company and shall, where applicable, also include any direct or indirect subsidiary of the Company
formed or acquired after the date hereof.


 


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


 


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


 


“Trading
Day” means a day on which the Trading Market is open for trading.


 


“Trading
Market” means NYSE American.


 






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2.               
Sale and Delivery of Shares. The Company proposes to issue and sell through or to the Manager, as sales agent and/or
principal, up to $1,700,000 of shares (the “Shares”) of the Company’s common stock, $0.001 par value
per share (“Common Stock”), from time to time during the term of this Agreement and on the terms set forth herein;
provided, however, that in no event shall the Company issue or sell through the Manager such number of Shares
that (a) exceeds the number or dollar amount of shares of Common Stock registered on the Registration Statement, pursuant to which
the offering is being made, (b) exceeds the number of authorized but unissued shares of Common Stock or (c) would cause the Company
or the offering of the Shares to not satisfy the eligibility and transaction requirements for use of Form S-3, including, if applicable,
General Instruction I.B.6 of Registration Statement on Form S-3 (the lesser of (a), (b) and (c), the “Maximum Amount”).
Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth
in this Section 2 on the number and aggregate sales price of Shares issued and sold under this Agreement shall be the sole responsibility
of the Company and that the Manager shall have no obligation in connection with such compliance.


 


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


 


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


 






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


 


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


 


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


 


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


 






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(v)            
The compensation to the Manager for sales of the Shares under this Section 2(b) shall be a placement fee of 3% of the gross
sales price of the Shares sold pursuant to this Section 2(b) (“Broker Fee”). The foregoing rate of compensation
shall not apply when the Manager acts as principal, in which case the Company may sell Shares to the Manager as principal at a
price agreed upon at the relevant Applicable Time pursuant to a Terms Agreement. The remaining proceeds, after deduction of the
Broker Fee and deduction of any transaction fees imposed by any clearing firm, execution broker, or governmental or self-regulatory
organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).


 


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


 


(vii)           Unless
otherwise agreed between the Company and the Manager, settlement for sales of the Shares will occur on the second (2nd)
Trading Day (or such earlier day as is industry practice for regular-way trading) following the date on which such sales are
made (each, a “Settlement Date”). On or before the Trading Day prior to each Settlement Date, the
Company will, or will cause its transfer agent to, electronically transfer the Shares being sold by crediting the
Manager’s or its designee’s account (provided the Manager shall have given the Company written notice of such
designee at least one Trading Day prior to the Settlement Date) at The Depository Trust Company (“DTC”)
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 Shares in all cases shall be freely tradable, transferable, registered shares in good deliverable
form. On each Settlement Date, the Manager 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 Shares on a Settlement Date, in addition to and in no way
limiting the rights and obligations set forth in Section 7 hereto, the Company will (i) hold the Manager harmless against any
loss, claim, damage, or reasonable, documented expense (including reasonable and documented legal fees and expenses), as
incurred, arising out of or in connection with such default by the Company, and (ii) pay to the Manager any commission,
discount or other compensation to which the Manager would otherwise have been entitled absent such default.


 






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(viii)         
At each Applicable Time, Settlement Date, Representation Date and Filing Date, the Company shall be deemed to have affirmed
each representation and warranty contained in this Agreement as if such representation and warranty were made as of such date,
modified as necessary to relate to the Registration Statement and the Prospectus as amended as of such date. Any obligation of
the Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing
accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder
and to the continuing satisfaction of the additional conditions specified in Section 6 of this Agreement.


 


(ix)            
The Company may establish a “10b5-1” plan for the Company with the Manager in connection with the sale of Shares
pursuant to this Agreement, provided that such plan shall be satisfactory in all respects to the Manager in its sole discretion.


 


(x)              
If the Company shall declare or make any dividend or other distribution of its assets (or rights to acquire its assets)
to holders of shares of Common Stock, by way of return of capital or otherwise (including, without limitation, any distribution
of cash, stock or other securities, property or options by way of a dividend, spin off, reclassification, corporate rearrangement,
scheme of arrangement or other similar transaction) (a “Distribution” and the record date for the determination
of stockholders entitled to receive the Distribution, the “Record Date”), the Company hereby covenants that,
in connection with any sales of Shares pursuant to a Sales Notice dated as of the Record Date, the Company shall issue and deliver
such Shares to the Manager on the Record Date and the Record Date shall be the Settlement Date and the Company shall cover any
additional costs of the Manager in connection with the delivery of Shares on the Record Date.


 






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


 


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


 


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


 


3.               
Representations and Warranties. The Company represents and warrants to the Manager at the Execution Time and on each
such time that the following representations and warranties are repeated or deemed to be made pursuant to this Agreement:


 






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(a)               Subsidiaries.
All of the direct and indirect Subsidiaries (as such term is defined in Rule 1-02(x) of Regulation S-X) of the Company are
set forth in the SEC Reports. Except as disclosed in the SEC Reports, the Company owns, directly or indirectly, all of the
capital stock or other equity interests of each Subsidiary free and clear of any Liens, and all of the issued and
outstanding shares of capital stock of each Subsidiary are validly issued and are fully paid, non-assessable and free of
preemptive and similar rights to subscribe for or purchase securities. If the Company has no Subsidiaries, all other
references to the Subsidiaries or any of them in this Agreement shall be disregarded.


 


(b)              
Organization and Qualification. The Company and each of the Subsidiaries is an entity duly incorporated or otherwise
organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, with
the requisite power and authority to own and use its properties and assets and to carry on its business as currently conducted.
Neither the Company nor any Subsidiary is in violation nor default of any of the provisions of its respective certificate or articles
of incorporation, bylaws or other organizational or charter documents. Each of the Company and the Subsidiaries is duly qualified
to conduct business and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of
the business conducted or property owned by it makes such qualification necessary, except where the failure to be so qualified
or in good standing, as the case may be, would not, individually or in the aggregate, reasonably be expected to result in a Material
Adverse Effect and no Proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing or seeking to revoke,
limit or curtail such power and authority or qualification.


 


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


 






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


 


(e)              
Filings, Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order
of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental
authority or other Person in connection with the execution, delivery and performance by the Company of this Agreement, other than:
(i) the filing with the Commission of the Prospectus Supplement, (ii) application(s) to the Trading Market for the listing of the
Shares for trading thereon in the time and manner required thereby and (iii) such filings as may be required to be made under FINRA
or applicable state securities or blue sky laws (collectively, the “Required Approvals”)


 


(f)               
Issuance of Shares. The Shares are duly authorized and, when issued and paid for in accordance with this Agreement,
will be duly and validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company. The Company
has reserved from its duly authorized capital stock the maximum number of shares of Common Stock issuable pursuant to this Agreement.
The holder of the Shares will not be subject to personal liability by reason of being such holders. The Shares are not and will
not be subject to the preemptive rights of any holders of any security of the Company or similar contractual rights granted by
the Company. All corporate action required to be taken for the authorization, issuance and sale of the Shares has been duly and
validly taken. The Shares conform in all material respects to all statements with respect thereto contained in the Registration
Statement. The “Plan of Distribution” section within the Registration Statement permits the issuance and sale
of the Shares as contemplated by this Agreement.


 






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(g)             Capitalization.
The capitalization of the Company is as set forth in the SEC Reports. Except as disclosed in the SEC Reports, the Company has
not issued any capital stock since its most recently filed periodic report under the Exchange Act, other than pursuant to the
exercise of employee stock options under the Company’s stock option or other equity compensation plans, the issuance of
shares of Common Stock to employees pursuant to the Company’s employee stock option or other equity incentive plans and
pursuant to the conversion and/or exercise of Common Stock Equivalents outstanding as of the date of the most recently filed
periodic report under the Exchange Act. Except as disclosed in the SEC Reports, no Person has any right of first refusal,
preemptive right, right of participation, or any similar right to participate in the transactions contemplated by
this Agreement. Except as disclosed in the SEC Reports, there are no outstanding options, warrants, scrip rights to subscribe
to, calls or commitments of any character whatsoever relating to, or securities, rights or obligations convertible into or
exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire, any shares of Common Stock, or
contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound to issue
additional shares of Common Stock or Common Stock Equivalents. The issuance and sale of the Shares will not obligate the
Company to issue shares of Common Stock or other securities to any Person. There are no outstanding securities or instruments
of the Company or any Subsidiary with any provision that adjusts the exercise, conversion, exchange or reset price of such
security or instrument upon an issuance of securities by the Company or any Subsidiary. There are no outstanding securities
or instruments of the Company or any Subsidiary that contain any redemption or similar provisions, and there are no
contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound to
redeem a security of the Company or such Subsidiary. The Company does not have any stock appreciation rights or
 “phantom stock” plans or agreements or any similar plan or agreement. All of the outstanding shares of capital
stock of the Company are duly authorized, validly issued, fully paid and nonassessable, have been issued in compliance with
all federal and state securities laws, and none of such outstanding shares was issued in violation of any preemptive rights
or similar rights to subscribe for or purchase securities. The authorized shares of the Company conform in all material
respects to all statements relating thereto contained in the Registration Statement and the Prospectus. The offers and sales
of the Company’s securities were at all relevant times either registered under the Act and the applicable
state securities or Blue Sky laws or, based in part on the representations and warranties of the purchasers, exempt from such
registration requirements. No further approval or authorization of any stockholder, the Board or others is required for the
issuance and sale of the Shares. There are no stockholders agreements, voting agreements or other similar agreements with
respect to the Company’s capital stock to which the Company is a party or, to the knowledge of the Company, between or
among any of the Company’s stockholders


 






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(h)             Registration
Statement. The Company has filed with the Commission the Registration Statement under the Act, which became effective on
July 11, 2017 (the “Effective Date”), for the registration under the Act of the Shares. At the time of
such filing, the Company met the requirements of Form S-3 under the Act. The Registration Statement meets the
requirements set forth in Rule 415(a)(1)(x) under the Act and complies with said Rule and the Prospectus Supplement will meet
the requirements set forth in Rule 424(b). The Company has advised the Manager of all further information (financial and
other) with respect to the Company required to be set forth therein in the Registration Statement and Prospectus Supplement.
For purposes of clarity, any reference in this Agreement to the Registration Statement, the Prospectus or the Prospectus
Supplement shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 which were filed under the Exchange Act, on or before the date of this Agreement, or the issue date of the
Prospectus or the Prospectus Supplement, as the case may be; and any reference in this Agreement to the terms
 “amend,” “amendment” or “supplement” with respect to the Registration Statement, the
Prospectus or the Prospectus Supplement shall be deemed to refer to and include the filing of any document under the Exchange
Act after the date of this Agreement, or the issue date of the Prospectus or the Prospectus Supplement, as the case may be,
deemed to be incorporated therein by reference. For purposes of clarity, all references in this Agreement to financial
statements and schedules and other information which is “contained,”
 “included,” “described,” “referenced,” “set forth” or “stated” in
the Registration Statement, the Prospectus or the Prospectus Supplement (and all other references of like import) shall be
deemed to mean and include all such financial statements and schedules and other information which is or is deemed to be
incorporated by reference in the Registration Statement, the Prospectus or the Prospectus Supplement, as the case may be. No
stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or the Prospectus
Supplement has been issued, and no proceeding for any such purpose is pending or has been initiated or, to the Company's
knowledge, is threatened by the Commission. For purposes of this Agreement, “free writing prospectus” has
the meaning set forth in Rule 405 under the Act. The Company will not, without the prior consent of the Manager, prepare, use
or refer to, any free writing prospectus. The Company meets the transaction requirements with respect to the aggregate market
value of securities being sold pursuant to this offering and during the twelve (12) months prior to this offering, as set
forth in General Instruction I.B.6 of Form S-3.


 






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(i)             Disclosure;
10b-5. The Registration Statement (and any further documents to be filed with the Commission) contains all exhibits and
schedules as required by the Act. Each of the Registration Statement and any post-effective amendment thereto, if any, at the
time it became effective, complied in all material respects with the Act and the Exchange Act and the applicable rules and
regulations under the Act and did not and, as amended or supplemented, if applicable, 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 and the Prospectus Supplement, each as of its respective date, comply in
all material respects with the Act and the Exchange Act and the applicable rules and regulations. Each of the Prospectus and
the Prospectus Supplement, as amended or supplemented, did not and will not contain as of the date thereof any untrue
statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading. The SEC Reports, when they were filed with the Commission,
conformed in all material respects to the requirements of the Exchange Act and the applicable rules and regulations, and none
of such documents, when they were filed with the Commission, contained any untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein (with respect to the SEC Reports incorporated by reference in
the Prospectus or Prospectus Supplement), in light of the circumstances under which they were made not misleading; and any
further documents so filed and incorporated by reference in the Prospectus or Prospectus Supplement, when such documents are
filed with the Commission, will conform in all material respects to the requirements of the Exchange Act and the applicable
rules and regulations, as applicable, and will not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the circumstances under which they were made not
misleading. No post-effective amendment to the Registration Statement reflecting any facts or events arising after the date
thereof which represent, individually or in the aggregate, a fundamental change in the information set forth therein is
required to be filed with the Commission. There are no documents required to be filed with the Commission in connection
with the transaction contemplated hereby that (x) have not been filed as required pursuant to the Act or (y) will not be
filed within the requisite time period. There are no contracts or other documents required to be described in the Prospectus
or the Prospectus Supplement, or to be filed as exhibits or schedules to the Registration Statement, which have not been
described or filed as required. The press releases disseminated by the Company during the twelve months preceding the date of
this Agreement taken as a whole do 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 light of the circumstances under which
they were made and when made, not misleading. The representations and warranties in this Section 3.1(i) shall not apply to
statements in or omissions from the Registration Statement, the Prospectus, the Prospectus Supplement or any amendment or
supplement thereto, or any press releases disseminated by the Company based upon and in conformity with written information
furnished to the Company by the Manager specifically for use therein.


 






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(j)              SEC
Reports; Financial Statements. The Company has filed all reports, schedules, forms, statements and other
documents required to be filed by the Company under the Act and the Exchange Act, including pursuant to Section 13(a) or
15(d) thereof, for the two years preceding the date hereof (or such shorter period as the Company was required by law or
regulation to file such material) (the foregoing materials, including the exhibits thereto and documents incorporated by
reference therein, together with the Prospectus and the Prospectus Supplement, being collectively referred to herein as the
 “SEC Reports”) on a timely basis or has received a valid extension of such time of filing and has filed
any such SEC Reports prior to the expiration of any such extension The Company has never been an issuer subject to Rule
144(i) under the Act. As of their respective dates, the SEC Reports complied in all material respects with the requirements
of the Act and the Exchange Act, as applicable, and none of the SEC Reports, when filed, contained any untrue statement of a
material fact or omitted 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. The financial statements of the
Company included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and
regulations of the Commission with respect thereto as in effect at the time of filing. Such financial statements have been
prepared in accordance with United States generally accepted accounting principles applied on a consistent basis during the
periods involved (“GAAP”), except as may be otherwise specified in such financial statements or the notes
thereto and except that unaudited financial statements may not contain all footnotes required by GAAP, and fairly present in
all material respects the financial position of the Company and its consolidated Subsidiaries as of and for the dates thereof
and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to
normal, immaterial, year-end audit adjustments. The agreements and documents described in the Registration Statement, the
Prospectus, the Prospectus Supplement and the SEC Reports conform in all material respects to the descriptions thereof
contained therein and there are no agreements or other documents required by the Act and the rules and regulations
thereunder to be described in the Registration Statement, the Prospectus, the Prospectus Supplement or the SEC Reports or to
be filed with the Commission as exhibits to the Registration Statement, that have not been so described or filed. Each
agreement or other instrument (however characterized or described) to which the Company is a party or by which it is or may
be bound or affected and (i) that is referred to in the Registration Statement, the Prospectus, the Prospectus
Supplement or the SEC Reports or (ii) is material to the Company’s business, has been duly authorized and validly
executed by the Company, is in full force and effect in all material respects and is enforceable against the Company and, to
the Company’s knowledge, the other parties thereto, in accordance with its terms, except (x) as such
enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights
generally, (y) as enforceability of any indemnification or contribution provision may be limited under the federal and
state securities laws, and (z) that the remedy of specific performance and injunctive and other forms of equitable
relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefore may
be brought. None of such agreements or instruments has been assigned by the Company, and neither the Company nor, to the best
of the Company’s knowledge, any other party is in default thereunder and, to the best of the Company’s knowledge,
no event has occurred that, with the lapse of time or the giving of notice, or both, would constitute a default thereunder.
To the best of the Company’s knowledge, performance by the Company of the material provisions of such agreements or
instruments will not result in a violation of any existing applicable law, rule, regulation, judgment, order or decree of any
governmental agency or court, domestic or foreign, having jurisdiction over the Company or any of its assets or businesses,
including, without limitation, those relating to environmental laws and regulations, except for violations which would not,
individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect


 






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(k)           
 Accountants. To the knowledge and belief of the Company, the Company Auditor (i) is an independent registered public
accounting firm as required by the Exchange Act and (ii) shall express its opinion with respect to the financial statements to
be included in the Company’s next Annual Report on Form 10-K. The Company Auditor has not, during the periods covered by
the financial statements included in the Prospectus Supplement, provided to the Company any non-audit services, as such term is
used in Section 10A(g) of the Exchange Act


 


(l)              Material
Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest audited financial statements
included in the SEC Reports, except as specifically disclosed in a subsequent SEC Report filed prior to the date hereof, (i)
there has been no event, occurrence or development that has had or that would reasonably be expected to result in a
Material Adverse Effect, (ii) the Company has not incurred any liabilities (contingent or otherwise) that are material to the
Company other than (A) trade payables and accrued expenses incurred in the ordinary course of business consistent with past
practice and (B) liabilities not required to be reflected in the Company’s financial statements pursuant to GAAP or
disclosed in the SEC Reports, (iii) the Company has not altered its method of accounting, (iv) the Company has not declared
or made any dividend or distribution of cash or other property to its stockholders or purchased, redeemed or made any
agreements to purchase or redeem any shares of its capital stock, (v) the Company has not issued any equity securities to any
officer, director or Affiliate, except pursuant to existing Company stock option or other equity compensation plans and (vi)
no officer or director of the Company has resigned from any position with the Company. The Company does not have pending
before the Commission any request for confidential treatment of information. Except for the issuance of the Shares
contemplated by this Agreement, no event, liability, fact, circumstance, occurrence or development has occurred or exists or
is reasonably expected to occur or exist with respect to the Company or its Subsidiaries or their respective businesses,
prospects, properties, operations, assets or financial condition that would be required to be disclosed by the Company under
applicable securities laws at the time this representation is made or deemed made that has not been publicly disclosed at
least one (1) Trading Day prior to the date that this representation is made. Unless otherwise disclosed in an SEC Report
filed prior to the date hereof, the Company has not: (i) issued any securities or incurred any liability or obligation,
direct or contingent, for borrowed money; or (ii) declared or paid any dividend or made any other distribution on or in
respect to its capital stock


 






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


 


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


 






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


 


(p)            
Regulatory Permits. The Company and the Subsidiaries possess all certificates, authorizations and permits issued
by the appropriate federal, state, local or foreign regulatory authorities necessary to conduct their respective businesses as
described in the SEC Reports, except where the failure to possess such permits would not, individually or in the aggregate, reasonably
be expected to result in a Material Adverse Effect (“Material Permits”), and neither the Company nor any Subsidiary
has received any notice of proceedings relating to the revocation or modification of any Material Permit. The disclosures in the
Registration Statement, if any, concerning the effects of Federal, State, local and all foreign regulation of the Company’s
business as currently contemplated are correct in all material respects.


 


(q)            
Title to Assets. The Company and the Subsidiaries have good and marketable title in fee simple to, or have valid
and marketable rights to lease or otherwise use, all real property and personal property that is material to the business of the
Company and the Subsidiaries, in each case free and clear of all Liens, except for (i) Liens as do not materially affect the value
of such property and do not materially interfere with the use made and proposed to be made of such property by the Company and
the Subsidiaries and (ii) Liens for the payment of federal, state or other taxes, for which appropriate reserves have been made
in accordance with GAAP and the payment of which is neither delinquent nor subject to penalties. Any real property and facilities
held under lease by the Company and the Subsidiaries are held by them under valid, subsisting and enforceable leases with which
the Company and the Subsidiaries are in material compliance.


 






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


 


(s)             
Insurance. The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against
such losses and risks and in such amounts as are prudent and customary in the businesses in which the Company and the Subsidiaries
are engaged, including, but not limited to, directors and officers insurance coverage. Neither the Company nor any Subsidiary has
any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary to continue its business without a significant increase in cost.


 


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


 






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


 






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(v)             Finder’s
Fees. Except as set forth in the Prospectus Supplement, no brokerage or finder’s fees or commissions are or will be
payable by the Company, any Subsidiary or Affiliate of the Company to any broker, financial advisor or consultant, finder,
placement agent, investment banker, bank or other Person with respect to the transactions contemplated by this Agreement. To
the Company’s knowledge, there are no other arrangements, agreements or understandings of the Company or, to the
Company’s knowledge, any of its stockholders that may affect the Manager’s compensation, as determined by FINRA.
The Company has not made any direct or indirect payments (in cash, securities or otherwise) in connection with the
transactions contemplated by this Agreement to: (i) any person, as a finder’s fee, consulting fee or otherwise, in
consideration of such person raising capital for the Company or introducing to the Company persons who raised or provided
capital to the Company; (ii)  any FINRA member; or (iii) any person or entity that has any direct or indirect
affiliation or association with any FINRA member, within the twelve months prior to the Execution Time. None of the net
proceeds of the transactions contemplated by this Agreement will be paid by the Company to any participating FINRA member or
its affiliates, except as specifically authorized herein. The Manager shall have no obligation with respect to any fees (or
any claims made by or on behalf of other Persons for fees) of a type contemplated in this Section that may be due in
connection with the transactions contemplated by this Agreement. The Company has not entered into any other sales agency
agreements or other similar arrangements with any agent or any other representative in respect of at the market offerings of
the Shares.


 


(w)            
Listing and Maintenance Requirements. The Common Stock is registered pursuant to Section 12(b) of the Exchange Act,
and the Company has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration
of the Common Stock under the Exchange Act nor has the Company received any notification that the Commission is contemplating terminating
such registration. The Company has not, in the 12 months preceding the date hereof, received notice from any Trading Market on
which the Common Stock is or has been listed or quoted to the effect that the Company is not in compliance with the listing or
maintenance requirements of such Trading Market. The Company is, and 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. The Common Stock is currently eligible
for electronic transfer through the Depository Trust Company or another established clearing corporation and the Company is current
in payment of the fees of the Depository Trust Company (or such other established clearing corporation) in connection with such
electronic transfer. The issuance and sale of the Shares as contemplated in this Agreement does not contravene the rules and regulations
of the Trading Market.


 


(x)             
Application of Takeover Protections. The Company and the Board have taken all necessary action, if any, in order
to render inapplicable any control share acquisition, business combination, poison pill (including any distribution under a rights
agreement) or other similar anti-takeover provision under the Company’s certificate of incorporation (or similar charter
documents) or the laws of its state of incorporation that is or could become applicable as a result of the Manager and the Company
fulfilling their obligations or exercising their rights under this Agreement.


 


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


 






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(z)              
Solvency. Based on the consolidated financial condition of the Company as of the date hereof, (i) the fair saleable
value of the Company’s assets exceeds the amount that will be required to be paid on or in respect of the Company’s
existing debts and other liabilities (including known contingent liabilities) as they mature, (ii) the Company’s assets do
not constitute unreasonably small capital to carry on its business as now conducted and as proposed to be conducted including its
capital needs taking into account the particular capital requirements of the business conducted by the Company, consolidated and
projected capital requirements and capital availability thereof, and (iii) the current cash flow of the Company, together with
the proceeds the Company would receive, were it to liquidate all of its assets, after taking into account all anticipated uses
of the cash, would be sufficient to pay all amounts on or in respect of its liabilities when such amounts are required to be paid.
The Company does not intend to incur debts beyond its ability to pay such debts as they mature (taking into account the timing
and amounts of cash to be payable on or in respect of its debt). The Company has no knowledge of any facts or circumstances which
lead it to believe that it will file for reorganization or liquidation under the bankruptcy or reorganization laws of any jurisdiction
within one year from the date hereof. Except as set forth in the Prospectus Supplement, the SEC Reports sets forth as of the date
hereof all outstanding secured and unsecured Indebtedness of the Company or any Subsidiary, or for which the Company or any Subsidiary
has commitments.


 


(aa)            Tax
Status. Except as disclosed in the SEC Reports or except for matters that would not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect, the Company and its Subsidiaries each (i) has made or filed
all material United States federal, state and local income and all foreign income and franchise tax returns, reports
and declarations required by any jurisdiction to which it is subject, (ii) has paid all taxes and other governmental
assessments and charges that are material in amount, shown or determined to be due on such returns, reports and declarations
and (iii) has set aside on its books provision reasonably adequate for the payment of all material taxes for periods
subsequent to the periods to which such returns, reports or declarations apply. There are no unpaid taxes in any material
amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company or of any Subsidiary
know of no basis for any such claim. The provisions for taxes payable, if any, shown on the financial statements filed with
or as part of the Registration Statement are sufficient for all accrued and unpaid taxes, whether or not disputed, and for
all periods to and including the dates of such consolidated financial statements. The term “taxes” mean all
federal, state, local, foreign, and other net income, gross income, gross receipts, sales, use, ad valorem, transfer,
franchise, profits, license, lease, service, service use, withholding, payroll, employment, excise, severance, stamp,
occupation, premium, property, windfall profits, customs, duties or other taxes, fees, assessments, or charges of any kind
whatsoever, together with any interest and any penalties, additions to tax, or additional amounts with respect thereto. The
term “returns” means all returns, declarations, reports, statements, and other documents required to be filed in
respect to taxes


 






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(bb)           Environmental
Laws. The Company and its Subsidiaries (i) are in material compliance with all federal, state, local and foreign laws
relating to pollution or protection of human health or the environment (including ambient air, surface water, groundwater,
land surface or subsurface strata), including laws relating to emissions, discharges, releases or threatened releases of
chemicals, pollutants, contaminants, or toxic or hazardous substances or wastes (collectively, “Hazardous
Materials”) into the environment, or otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of Hazardous Materials, as well as all authorizations, codes, decrees,
demands, or demand letters, injunctions, judgments, licenses, notices or notice letters, orders, permits, plans or
regulations, issued, entered, promulgated or approved thereunder (“Environmental Laws”); (ii) have
received all material permits, licenses or other approvals required of them under applicable Environmental Laws to conduct
their respective businesses; and (iii) are in material compliance with all terms and conditions of any such permit, license
or approval where in each clause (i), (ii) and (iii), the failure to so comply would be reasonably expected to result in,
individually or in the aggregate, a Material Adverse Effect.


 


(cc)           
Foreign Corrupt Practices. Neither the Company nor any Subsidiary, nor to the knowledge of the Company or any Subsidiary,
any agent or other person acting on behalf of the Company or any Subsidiary, has (i) directly or indirectly, used any funds for
unlawful contributions, gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii)
made any unlawful payment to foreign or domestic government officials or employees or to any foreign or domestic political parties
or campaigns from corporate funds, (iii) failed to disclose fully any contribution made by the Company or any Subsidiary (or made
by any person acting on its behalf of which the Company is aware) which is in material violation of law, or (iv) violated in any
material respect any provision of FCPA. The Company has taken reasonable steps to ensure that its accounting controls and procedures
are sufficient to cause the Company to comply in all material respects with the FCPA.


 


(dd)          
FINRA Affiliation. To the Company’s knowledge, no officer, director or any beneficial owner of 5% or more of
the Company’s unregistered securities has any direct or indirect affiliation or association with any FINRA member (as determined
in accordance with the rules and regulations of FINRA), except as set forth in the Registration Statement, the Base Prospectus,
any Prospectus Supplement or the Prospectus.


 






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


 


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


 


(a)              Right
to Review Amendments and Supplements to Registration Statement and Prospectus. During any period when the delivery of a
prospectus relating to the Shares is required (including in circumstances where such requirement may be satisfied pursuant to
Rule 172, 173 or any similar rule) to be delivered under the Act in connection with the offering or the sale of Shares,
the Company will not file any amendment to the Registration Statement or supplement (including any Prospectus Supplement) to
the Base Prospectus unless the Company has furnished to the Manager a copy for its review prior to filing and will not
file any such proposed amendment or supplement to which the Manager reasonably objects (provided, however, that the Company
will have no obligation to provide the Manager any advance copy of such filing or to provide the Manager an opportunity to
object to such filing if the filing does not name the Manager and does not relate to the transaction herein provided). The
Company has properly completed the Prospectus, in a form approved by the Manager, and filed such Prospectus, as amended at
the Execution Time, with the Commission pursuant to the applicable paragraph of Rule 424(b) by the Execution Time and
will cause any supplement to the Prospectus to be properly completed, in a form approved by the Manager, and will file such
supplement with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed
thereby and will provide evidence reasonably satisfactory to the Manager of such timely filing. The Company will promptly
advise the Manager (i) when the Prospectus, and any supplement thereto, shall have been filed (if required) with the
Commission pursuant to Rule 424(b), (ii) when, during any period when the delivery of a prospectus (whether
physically or through compliance with Rule 172, 173 or any similar rule) is required under the Act in connection with
the offering or sale of the Shares, any amendment to the Registration Statement shall have been filed or become effective
(other than any annual report of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act), (iii) of any
request by the Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration
Statement, or for any supplement to the Prospectus or for any additional information, (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use
or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company of
any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the
institution or threatening of any proceeding for such purpose. The Company will use its commercially reasonable best efforts
to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the
Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the
withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to
the Registration Statement or a new registration statement and using its commercially reasonable best efforts to have such
amendment or new registration statement declared effective as soon as practicable.


 






    24


     


    

 


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


 


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


 






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(d)             
Earnings Statements. As soon as practicable, the Company will make generally available to its security holders and
to the Manager an earnings statement or statements of the Company and its Subsidiaries which will satisfy the provisions of Section 11(a)
of the Act and Rule 158. For the avoidance of doubt, the Company’s compliance with the reporting requirements of the
Exchange Act shall be deemed to satisfy the requirements of this Section 4(d).


 


(e)             
[RESERVED]


 


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


 


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


 


(h)            
Subsequent Equity Issuances. The Company shall not deliver any Sales Notice hereunder (and any Sales Notice previously
delivered shall not apply during such three Business Days) for at least three (3) Business Days prior to the date on which the
Company or any Subsidiary offers, sells, issues, contracts to sell, contracts to issue or otherwise disposes of, directly or indirectly,
any other shares of Common Stock or any Common Stock Equivalents (other than the Shares), subject to Manager’s right to waive
this obligation, provided that, without compliance with the foregoing obligation, the Company may issue and sell Common Stock pursuant
to any employee equity plan, stock ownership plan or dividend reinvestment plan of the Company in effect at the Execution Time
and the Company may issue Common Stock issuable upon the conversion or exercise of Common Stock Equivalents outstanding at the
Execution Time.


 






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


 


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


 


(k)             
Certification of Accuracy of Disclosure. Upon commencement of the offering of the Shares under this Agreement (and
upon the recommencement of the offering of the Shares under this Agreement following the termination of a suspension of sales hereunder
lasting more than 30 Trading Days), and each time that (i) the Registration Statement or Prospectus shall be amended or supplemented,
other than by means of Incorporated Documents, (ii) the Company files its Annual Report on Form 10-K under the Exchange Act, (iii)
the Company files its quarterly reports on Form 10-Q under the Exchange Act, (iv) the Company files a Current Report on Form 8-K
containing an amendment to financial statements previously filed with the Commission under the Exchange Act and incorporated or
deemed incorporated by reference into the Prospectus, if the Manager reasonably determines that the information in such Form 8-K
is material, or (v) the Shares are delivered to the Manager as principal at the Time of Delivery pursuant to a Terms Agreement
(such commencement or recommencement date and each such date referred to in (i), (ii), (iii), (iv) and (v) above, a “Representation
Date”), unless waived by the Manager, the Company shall furnish or cause to be furnished to the Manager forthwith a certificate
dated and delivered on the Representation Date, in form reasonably satisfactory to the Manager to the effect that the statements
contained in the certificate referred to in Section 6 of this Agreement which were last furnished to the Manager are true and correct
at the Representation Date, as though made at and as of such date (except that such statements shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to such date) or, in lieu of such certificate, a certificate
of the same tenor as the certificate referred to in said Section 6, modified as necessary to relate to the Registration Statement
and the Prospectus as amended and supplemented to the date of delivery of such certificate.


 






    27


     


    

 


(l)               Bring
Down Opinions; Negative Assurance. At each Representation Date, unless waived by the Manager, the Company shall furnish
or cause to be furnished forthwith to the Manager and to counsel to the Manager a written opinion of counsel to the Company
(“Company Counsel”) addressed to the Manager and dated and delivered on such Representation Date, in form
and substance reasonably satisfactory to the Manager, including a negative assurance representation. In lieu of
delivering such an opinion for Representation Dates subsequent to the commencement of the offering of the Shares under this
Agreement, such counsel may furnish the Manager with a letter to the effect that the Manager may rely on a prior opinion
delivered under Section 6(b) or this Section 4(l) to the same extent as if it were dated the date of such letter (except that
statements in such prior opinion shall be deemed to relate to the Registration Statement and the Prospectus as amended or
supplemented as of such subsequent Representation Date). The requirement to furnish or cause to be furnished an opinion under
this Section 4(l) shall be waived for any Representation Date other than a Representation Date on which a material amendment
to the Registration Statement or Prospectus is made or the Company files its Annual Report on Form 10-K or a material
amendment thereto under the Exchange Act, unless the Manager reasonably requests the deliverables required this Section 4(l)
in connection with a Representation Date, upon which request such deliverable shall be deliverable hereunder.


 


(m)            
Auditor Bring Down “Comfort” Letter. At each Representation Date, unless waived by the Manager, the Company
shall cause (1) the Company Auditor, or other independent accountants satisfactory to the Manager, forthwith to furnish the
Manager a letter, and (2) the Chief Financial Officer of the Company forthwith to furnish the Manager a certificate, in each
case dated on such Representation Date, in form satisfactory to the Manager, of the same tenor as the letters and certificate referred
to in Section 6 of this Agreement but modified to relate to the Registration Statement and the Prospectus, as amended and supplemented
to the date of such letters and certificate; provided, however, that the Company will not be required to cause the Company Auditor
to furnish such letters to the Manager in connection with the filing of a Current Report on Form 8-K unless (i) such Current Report
on Form 8-K is filed at any time during which a prospectus relating to the Shares is required to be delivered under the Act and
(ii) the Manager has requested such letter based upon the event or events reported in such Current Report on Form 8-K. The requirement
to furnish or cause to be furnished a “comfort” letter under this Section 4(m) shall be waived for any Representation
Date other than a Representation Date on which a material amendment to the Registration Statement or Prospectus is made or the
Company files its Annual Report on Form 10-K or a material amendment thereto under the Exchange Act, unless the Manager reasonably
requests the deliverables required this Section 4(m) in connection with a Representation Date, upon which request such deliverable
shall be deliverable hereunder.


 


(n)              Due
Diligence Session. Upon commencement of the offering of the Shares under this Agreement (and upon the recommencement of
the offering of the Shares under this Agreement following the termination of a suspension of sales hereunder lasting more
than 30 Trading Days), and at each Representation Date, the Company will conduct a due diligence session, in form and
substance, reasonably satisfactory to the Manager, which shall include representatives of management and the Company Auditor
(or any successor thereto). The Company shall cooperate timely with any reasonable due diligence request from or review
conducted by the Manager or its agents from time to time in connection with the transactions contemplated by this Agreement,
including, without limitation, providing information and available documents and access to appropriate corporate officers and
the Company’s agents during regular business hours, and timely furnishing or causing to be furnished such certificates,
letters and opinions from the Company, its officers and its agents, as the Manager may reasonably request. The Company shall
reimburse the Manager for Manager’s counsel’s time in each such due diligence update session, up to a maximum of
$2,500 per update, plus any incidental expense incurred by the Manager in connection therewith.


 






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(o)              
Acknowledgment of Trading. The Company consents to the Manager trading in the Common Stock for the Manager’s
own account and for the account of its clients at the same time as sales of the Shares occur pursuant to this Agreement or pursuant
to a Terms Agreement.


 


(p)              
Disclosure of Shares Sold. The Company will disclose in its Annual Reports on Form 10-K and Quarterly Reports
on Form 10-Q, as applicable, the number of Shares sold through the Manager under this Agreement, the Net Proceeds to the Company
and the compensation paid by the Company with respect to sales of Shares pursuant to this Agreement during the relevant quarter;
and, if required by any subsequent change in Commission policy or request, more frequently by means of a Current Report on Form
8-K or a further Prospectus Supplement.


 


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


 


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


 






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


 


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


 


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


 


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


 


(w)            
Filing of Prospectus Supplement. If any sales are made pursuant to this Agreement which are not made in “at
the market” offerings as defined in Rule 415, including, without limitation, any Placement pursuant to a Terms Agreement,
the Company shall file a Prospectus Supplement describing the terms of such transaction, the amount of Shares sold, the price thereof,
the Manager’s compensation, and such other information as may be required pursuant to Rule 424 and Rule 430B, as applicable,
within the time required by Rule 424.


 


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


 






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5.            
Payment of Expenses. The Company agrees to pay the costs and expenses incident to the performance of its obligations
under this Agreement, whether or not the transactions contemplated hereby are consummated, including without limitation: (i) the
preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements
and exhibits thereto), the Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them;
(ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging)
of such copies of the Registration Statement, the Prospectus, and each Issuer Free Writing Prospectus, and all amendments or supplements
to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Shares; (iii) the
preparation, printing, authentication, issuance and delivery of certificates for the Shares, including any stamp or transfer taxes
in connection with the original issuance and sale of the Shares; (iv) the printing (or reproduction) and delivery of this
Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with
the offering of the Shares; (v) the registration of the Shares under the Exchange Act, if applicable, and the listing of the
Shares on the Trading Market; (vi) any registration or qualification of the Shares for offer and sale under the securities
or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the Manager relating
to such registration and qualification); (vii) the transportation and other expenses incurred by or on behalf of Company representatives
in connection with presentations to prospective purchasers of the Shares; (viii) the fees and expenses of the Company’s
accountants and the fees and expenses of counsel (including local and special counsel) for the Company; (ix) the filing fee under
FINRA Rule 5110; (x) the reasonable fees and expenses of the Manager’s counsel, not to exceed $50,000 (excluding any periodic
due diligence fees provided for under Section 4(n)), which shall be payable on the Execution Time; and (xi) all other costs and
expenses incident to the performance by the Company of its obligations hereunder.


 


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


 


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


 






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(b)            
Delivery of Opinion. The Company shall have caused the Company Counsel to furnish to the Manager its opinion and
negative assurance statement, dated as of the date hereof and addressed to the Manager in form and substance acceptable to the
Manager, provided that the delivery of this deliverable on the Execution Time shall be waived as long as no instruction to the
Manager to sell Shares pursuant to this Agreement has been delivered by the Company or is pending; provided, however,
that, if the Company determines to sell Shares when the Company has relied on this waiver and did not provide the deliverable pursuant
to this Section 6(b), then the Company shall deliver, or cause to be delivered, the deliverable pursuant to this Section 6(b) prior
to any instruction from the Company to the Manager to sell Shares pursuant to this Agreement.


 


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


 


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


 


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


 


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


 






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(d)               Delivery
of Accountants’ “Comfort” Letter. The Company shall have requested and caused the Company Auditor (or
any successor thereto) to have furnished to the Manager letters (which may refer to letters previously delivered to the
Manager), dated as of the date hereof, in form and substance satisfactory to the Manager, confirming that they are
independent accountants within the meaning of the Act and the Exchange Act and the respective applicable rules and
regulations adopted by the Commission thereunder and that they have performed a review of any unaudited interim financial
information of the Company included or incorporated by reference in the Registration Statement and the Prospectus and provide
customary “comfort” as to such review in form and substance satisfactory to the Manager, provided that the
delivery of this deliverable on the Execution Time shall be waived as long as no instruction to the Manager to sell Shares
pursuant to this Agreement has been delivered by the Company or is pending; provided, however, that, if the
Company determines to sell Shares when the Company has relied on this waiver and did not provide the deliverable pursuant to
this Section 6(d), then the Company shall deliver, or cause to be delivered, the deliverable pursuant to this Section 6(d)
prior to any instruction from the Company to the Manager to sell Shares pursuant to this Agreement.


 


(e)              
No Material Adverse Event. Since the respective dates as of which information is disclosed in the Registration Statement,
the Prospectus and the Incorporated Documents, except as otherwise stated therein, there shall not have been (i) a material adverse
change or development involving a prospective material adverse change in the condition or prospects or the business activities,
financial or otherwise, of the Company from the latest dates as of which such condition is set forth in the Registration Statement
and Prospectus; or (ii) any action suit or proceeding, at law or in equity, shall have been pending or threatened against the Company
or any Affiliate of the Company, other than Persons who are solely investors in the Company, before or by any court or federal
or state commission, board or other administrative agency wherein an unfavorable decision, ruling or finding would reasonably be
expected to materially adversely affect the business, operations, prospects or financial condition or income of the Company, except
as set forth in the Registration Statement, the Prospectus and the Incorporated Documents, the effect of which, in any case referred
to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical
or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement, the Incorporated
Documents and the Prospectus.


 


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


 






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


 


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


 


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


 


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


 


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


 


7.            
Indemnification and Contribution.


 


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


 






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


 


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


 






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


 






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8.             
Termination.


 


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


 


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


 


(c)             
This Agreement shall remain in full force and effect until the earliest of November 22, 2022, such date that this Agreement
is terminated pursuant to Sections 8(a) or (b) above, or all of the Shares covered by this Agreement have been sold,
or otherwise by mutual agreement of the parties, provided that any such termination by mutual agreement shall in all cases be deemed
to provide that Sections 5, 7, 8, 9, 10, 12 and 14 shall remain in full force and effect.


 


(d)             
Any termination of this Agreement shall be effective on the date specified in such notice of termination, provided that
such termination shall not be effective until the close of business on the date of receipt of such notice by the Manager or the
Company, as the case may be. If such termination shall occur prior to the Settlement Date or Time of Delivery for any sale of
the Shares, such sale of the Shares shall settle in accordance with the provisions of Section 2(b) of this Agreement.


 






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


 


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


 


10.           
Notices. All communications hereunder will be in writing and effective only on receipt, and will be mailed, delivered,
e-mailed or facsimiled to the addresses of the Company and the Manager, respectively, set forth on the signature page hereto.


 


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


 


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


 






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


 


14.          
Applicable Law. This Agreement and any Terms Agreement will be governed by and construed in accordance with the internal
laws of the State of New York applicable to contracts made and to be performed within the State of New York, without regard
to the principles of conflicts of law thereof. If either party shall commence an action or proceeding to enforce any provision
of this Agreement, then the prevailing party in such action or proceeding shall be reimbursed by the other party for its reasonable
attorney’s fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action
or proceeding. Each of the Company and the Manager: (i) agrees that any legal suit, action or proceeding arising out of or relating
to this Agreement shall be instituted exclusively in New York Supreme Court, County of New York, or in the United States District
Court for the Southern District of New York, (ii) waives any objection which it may have or hereafter to the venue of any such
suit, action or proceeding, and (iii) irrevocably consents to the jurisdiction of the New York Supreme Court, County of New York,
and the United States District Court for the Southern District of New York in any such suit, action or proceeding. Each of the
Company and the Manager further agrees to accept and acknowledge service of any and all process which may be served in any such
suit, action or proceeding in the New York Supreme Court, County of New York, or in the United States District Court for the Southern
District of New York and agrees that service of process upon the Company mailed by certified mail to the Company’s address
shall be deemed in every respect effective service of process upon the Company, in any such suit, action or proceeding, and service
of process upon the Manager mailed by certified mail to the Manager’s address shall be deemed in every respect effective
service process upon the Manager, in any such suit, action or proceeding. If either party shall commence an action or proceeding
to enforce any provision of this Agreement, then the prevailing party in such action or proceeding shall be reimbursed by the other
party for its reasonable attorney’s fees and other costs and expenses incurred with the investigation, preparation and prosecution
of such action or proceeding.


 


15.           Waiver
of Jury Trial. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, THE PARTIES EACH KNOWINGLY AND
INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY AND
EXPRESSLY WAIVE FOREVER ANY RIGHT TO TRIAL BY JURY.


 


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


 


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


 






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17.             
Headings. The section headings used in this Agreement and any Terms Agreement are for convenience only and shall
not affect the construction hereof.


         


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


 


Very truly yours,


 


EMAGIN CORPORATION




 


	 	 	 
	By: 		 
	Name:	  	 
	Title:		 



 


Address for Notice:


700 South Drive, Suite #201


Hopewell
Junction, New York 12533


	Facsimile:		 
	E-mail: 		 
	Attention: 		 




 


Copy to:


Goodwin Procter LLP


100 Northern Avenue


Boston, Massachusetts 02210


Attention: Jocelyn M. Arel


E-Mail: JArel@goodwinlaw.com


 


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




 


H.C. WAINWRIGHT & CO., LLC


 


	By:		 
	Name:	 	 
	Title:	 	 




 


Address for Notice:


430 Park Avenue

New York, New York 10022


E-Mail: notices@hcwco.com

Attention: Chief Executive Officer


 






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Form of Terms Agreement


 


ANNEX I 


 


EMAGIN CORPORATION 


 


TERMS AGREEMENT


 


Dear Sirs:


 


 eMagin
Corporation (the “Company”) proposes, subject to the terms and conditions stated herein and in the At The Market
Offering Agreement, dated November 22, 2019 (the “At The Market Offering Agreement”), between the Company and
H.C. Wainwright & Co., LLC (“Manager”), to issue and sell to Manager the securities specified in the Schedule I
hereto (the “Purchased Shares”). 


 


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


 


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


 


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


 






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


 


EMAGIN CORPORATION


 


	By:		 
	 	Name:	 
	 	Title:	 



 


ACCEPTED as of the date first written above.


 


H.C. WAINWRIGHT & CO., LLC


 


	By:		 
	 	Name:	 
	 	Title:	 




 






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