Exhibit 10.1


 


FUELCELL ENERGY, INC.


 


Common Stock


(par value $0.0001 per share)


 


At Market Issuance Sales Agreement


 


June 13, 2018


 


B. Riley FBR, Inc.


299 Park Avenue


New York, NY 10171


 


Oppenheimer & Co. Inc.


85 Broad Street, 23rd Floor


New York, NY 10004


 


Ladies and Gentlemen:


 


FuelCell Energy, Inc.,
a Delaware corporation (the “Company”), confirms its agreement (this “Agreement”) with B.
Riley FBR, Inc. (“BRFBR”) and Oppenheimer & Co. Inc. (“Oppenheimer”; each of BRFBR and
Oppenheimer individually an “Agent” and collectively, the “Agents”) as follows:


 


1.          Issuance
and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject
to the conditions set forth herein, it may issue and sell through the Agents, shares (the “Placement Shares”)
of the Company’s common stock, par value $0.0001 per share (the “Common Stock”); provided however,
that in no event shall the Company issue or sell through the Agents such number of Placement Shares that (a) exceeds the
number of shares or dollar amount of Common Stock registered on the effective Registration Statement (as defined below) pursuant
to which the offering is being made, or (b) exceeds the number of shares or dollar amount registered on the Prospectus Supplement
(as defined below) (the lesser of (a) or (b), the “Maximum Amount”). Notwithstanding anything to the contrary
contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the number
or dollar amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that
the Agents shall have no obligation in connection with such compliance. The issuance and sale of Placement Shares through the Agents
will be effected pursuant to the Registration Statement (as defined below), although nothing in this Agreement shall be construed
as requiring the Company to use the Registration Statement to issue any Placement Shares.


 




     


     


    

 


The Company has filed,
in accordance with the provisions of the Securities Act of 1933, as amended, and the rules and regulations thereunder (the “Securities
Act”), with the Securities and Exchange Commission (the “Commission”), a registration statement on
Form S-3 (File No. 333-215530), including a base prospectus, relating to certain securities, including the Placement Shares, to
be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file
in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder
(the “Exchange Act”). The Company has prepared a prospectus supplement to the base prospectus included as part
of such registration statement specifically relating to the Placement Shares (the “Prospectus Supplement”).
The Company will furnish to the Agents, for use by the Agents, copies of the base prospectus included as part of such registration
statement, as supplemented by the Prospectus Supplement, relating to the Placement Shares. Except where the context otherwise requires,
such registration statement, and any post-effective amendment thereto, including all documents filed as part thereof or incorporated
by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission
pursuant to Rule 424(b) under the Securities Act or deemed to be a part of such registration statement pursuant to Rule 430B
of the Securities Act, is herein called the “Registration Statement.” The base prospectus, including all documents
incorporated or deemed incorporated therein by reference to the extent such information has not been superseded or modified in
accordance with Rule 412 under the Securities Act (as qualified by Rule 430B(g) of the Securities Act), included in the Registration
Statement, as it may be supplemented by the Prospectus Supplement, in the form in which such base prospectus and/or Prospectus
Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act, is
herein called the “Prospectus.” Any reference herein to the Registration Statement, the Prospectus or any amendment
or supplement thereto shall be deemed to refer to and include the documents incorporated or deemed incorporated by reference therein,
and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to
the Registration Statement or the Prospectus shall be deemed to refer to and include the filing after the execution hereof of any
document with the Commission incorporated or deemed to be incorporated by reference therein (the “Incorporated Documents”).


 


For purposes of this
Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed
to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System,
or if applicable, the Interactive Data Electronic Application system when used by the Commission (collectively, “EDGAR”).


 


2.          Placements.
Each time that the Company wishes to issue and sell Placement Shares hereunder (each, a “Placement”), it will
notify an Agent (the “Designated Agent”) by email (or another method mutually agreed to in writing by the parties)
of the number of Placement Shares to be issued, the time period during which sales are requested to be made, any limitation on
the number of Placement Shares that may be sold in any one day and any minimum price below which sales may not be made (a “Placement
Notice”), the form of which is attached hereto as Schedule 1. The Placement Notice shall originate from any of
the individuals from the Company set forth on Schedule 3 (with a copy to each of the other individuals from the Company
listed on such schedule), and shall be addressed to each of the individuals from the Agents set forth on Schedule 3, as
such Schedule 3 may be amended from time to time. The Placement Notice shall be effective immediately upon receipt by the
Designated Agent unless and until (i) the Designated Agent declines to accept the terms contained therein for any reason, in its
sole discretion, (ii) the entire amount of the Placement Shares thereunder has been sold, (iii) the Company suspends or terminates
the Placement Notice, which suspension and termination rights may be exercised by the Company in its sole discretion, (iv) the
Company issues a subsequent Placement Notice with parameters superseding those included in the earlier dated Placement Notice,
or (v) this Agreement has been terminated under the provisions of Section 13. The amount of any discount, commission or
other compensation to be paid by the Company to the Designated Agent in connection with the sale of the Placement Shares shall
be calculated in accordance with the terms set forth in Schedule 2. It is expressly acknowledged and agreed that neither
the Company nor the Designated Agent will have any obligation whatsoever with respect to a Placement or any Placement Shares unless
and until the Company delivers a Placement Notice to the Designated Agent and the Designated Agent does not decline such Placement
Notice pursuant to the terms set forth above, and then only upon the terms specified therein and herein. In the event of a conflict
between the terms of Sections 2 or 3 of this Agreement and the terms of a Placement Notice, the terms of the Placement
Notice will control.


 




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3.          Sale
of Placement Shares by the Agents. Subject to the terms and conditions of this Agreement, for the period specified in a Placement
Notice, the Designated Agent will use its commercially reasonable efforts consistent with its normal trading and sales practices
and applicable state and federal laws, rules and regulations and the rules of the NASDAQ Global Market (the “Exchange”),
to sell the Placement Shares up to the amount specified in, and otherwise in accordance with the terms of, such Placement Notice.
The Designated Agent will provide written confirmation to the Company no later than the opening of the Trading Day (as defined
below) immediately following the Trading Day on which it has made sales of Placement Shares hereunder setting forth the number
of Placement Shares sold on such day, the compensation payable by the Company to the Designated Agent pursuant to Section 2
with respect to such sales, and the Net Proceeds (as defined below) payable to the Company, with an itemization of the deductions
made by the Designated Agent (as set forth in Section 5(b)) from the gross proceeds that it receives from such sales. Subject
to the terms of a Placement Notice, the Designated Agent may sell Placement Shares by any method permitted by law deemed to be
an “at the market offering” as defined in Rule 415 of the Securities Act. “Trading Day” means any
day on which shares of Common Stock are purchased and sold on the Exchange. 


 


4.          Suspension
of Sales. The Company or the Designated Agent may, upon notice to the other parties in writing (including by email correspondence
to each of the individuals of the other parties set forth on Schedule 3, if receipt of such correspondence is actually acknowledged
by any of the individuals to whom the notice is sent, other than via auto-reply) or by telephone (confirmed immediately by verifiable
facsimile transmission or email correspondence to each of the individuals of the other parties set forth on Schedule 3),
suspend any offering of Placement Shares (a “Suspension”); provided, however, that such suspension shall
not affect or impair any party’s obligations with respect to any Placement Shares sold hereunder prior to the receipt of
such notice. While a Suspension is in effect, any obligation under Sections 7(l), 7(m), and 7(n) with respect
to the delivery of certificates, opinions, or comfort letters to the Agents, shall be waived. Each of the parties agrees that no
such notice under this Section 4 shall be effective against any other party unless it is made to one of the individuals
named on Schedule 3 hereto, as such Schedule may be amended from time to time.


 




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5.           Sale
and Delivery to the Designated Agent; Settlement.


 


a.           Sale
of Placement Shares. On the basis of the representations and warranties herein contained and subject to the terms and conditions
herein set forth, upon the Designated Agent’s acceptance of the terms of a Placement Notice, and unless the sale of the Placement
Shares described therein has been declined, suspended, or otherwise terminated in accordance with the terms of this Agreement,
the Designated Agent, for the period specified in the Placement Notice, will use its commercially reasonable efforts consistent
with its normal trading and sales practices and applicable state and federal laws, rules and regulations and the rules of the Exchange
to sell such Placement Shares up to the amount specified in, and otherwise in accordance with the terms of, such Placement Notice.
The Company acknowledges and agrees that (i) there can be no assurance that the Designated Agent will be successful in selling
Placement Shares, (ii) the Designated Agent will incur no liability or obligation to the Company or any other person or entity
if it does not sell Placement Shares for any reason other than a failure by the Designated Agent to use its commercially reasonable
efforts consistent with its normal trading and sales practices and applicable state and federal laws, rules and regulations and
the rules of the Exchange to sell such Placement Shares as required under this Agreement, and (iii) the Designated Agent shall
be under no obligation to purchase Placement Shares on a principal basis pursuant to this Agreement, except as otherwise agreed
by the Designated Agent and the Company.


 


b.           Settlement
of Placement Shares. Unless otherwise specified in the applicable Placement Notice, settlement for sales of Placement Shares
will occur on the second (2nd) Trading Day (or such earlier day as is industry practice for regular-way trading) following
the date on which such sales are made (each, a “Settlement Date”). The Designated Agent shall notify the Company
of each sale of Placement Shares no later than the opening of the Trading Day immediately following the Trading Day on which the
Designated Agent sold such Placement Shares. The amount of proceeds to be delivered to the Company on a Settlement Date against
receipt of the Placement Shares sold (the “Net Proceeds”) will be equal to the aggregate sales price received
by the Designated Agent for the Placement Shares, after deduction for (i) the Designated Agent’s commission, discount or
other compensation for such sales payable by the Company pursuant to Section 2 hereof, and (ii) any transaction fees imposed
by any governmental or self-regulatory organization in respect of such sales.


 


c.           Delivery
of Placement Shares. On or before each Settlement Date, the Company will, or will cause its transfer agent to, electronically
transfer the Placement Shares being sold by crediting the Designated Agent’s or its designee’s account (provided the
Designated Agent shall have given the Company written notice of such designee and such designee’s account information at
least one Trading Day prior to the Settlement Date) at The Depository Trust Company through its Deposit and Withdrawal at Custodian
System or by such other means of delivery as may be mutually agreed upon by the parties hereto which in all cases shall be freely
tradable, transferable, registered shares in good deliverable form. On each Settlement Date, the Designated Agent will deliver
the related Net Proceeds in same day funds to an account designated by the Company on, or prior to, the Settlement Date. The Company
agrees that, if the Company, or its transfer agent (if applicable), defaults in its obligation to deliver Placement Shares on a
Settlement Date through no fault of the Designated Agent, then in addition to and in no way limiting the rights and obligations
set forth in Section 11(a) hereto, it will (i) hold the Designated Agent harmless against any loss, claim, damage, or reasonable,
documented expense (including actual, reasonable, and documented legal fees and expenses), as incurred, arising out of or in connection
with such default by the Company or its transfer agent (if applicable) and (ii) pay to the Designated Agent (without duplication)
any commission, discount, or other compensation to which it would otherwise have been entitled absent such default.


 




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


 


e.           Sales
Through Agents. The Company agrees that any offer to sell, any solicitation of an offer to buy, or any sales of Placement Shares
shall only be effected by or through an Agent, and only a single Agent, on any single given date, and in no event shall the Company
request that more than one Agent sell Placement Shares on the same day.


 


6.           Representations
and Warranties of the Company. Except as disclosed in the Registration Statement or Prospectus (including the Incorporated
Documents), the Company represents and warrants to, and agrees with each Agent that as of the date of this Agreement and as of
each Applicable Time (as defined below), unless such representation, warranty or agreement specifies a different date or time:


 


a.           Registration
Statement and Prospectus. Assuming no act or omission on the part of the Agents (or either of them) that would make such statement
untrue, the transactions contemplated by this Agreement meet the requirements for and comply with the conditions for the use of
Form S-3 under the Securities Act. The Registration Statement has been filed with the Commission and has been declared effective
under the Securities Act. The Prospectus Supplement will name BRFBR and Oppenheimer as the agents in the section entitled “Plan
of Distribution.” The Company has not received, and has no notice of, any order of the Commission preventing or suspending
the use of the Registration Statement, or threatening or instituting proceedings for that purpose. The Registration Statement and,
assuming no act or omission on the part of the Agents (or either of them) that would make such statement untrue, the offer and
sale of Placement Shares as contemplated hereby meet the requirements of Rule 415 under the Securities Act and comply in all material
respects with said Rule. Any statutes, regulations, contracts or other documents that are required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the Registration Statement have been so described or filed, as applicable.
Copies of the Registration Statement, the Prospectus, and any such amendments or supplements and all documents incorporated by
reference therein that were filed with the Commission on or prior to the date of this Agreement have been delivered, or are available
through EDGAR, to the Agents and their counsel. The Company has not distributed and, prior to the later to occur of each Settlement
Date and completion of the distribution of the Placement Shares, will not distribute any offering material in connection with the
offering or sale of the Placement Shares other than the Registration Statement and the Prospectus and any Issuer Free Writing Prospectus
(as defined below) to which the Agents have consented, which consent will not be unreasonably withheld, conditioned, or delayed,
or that is required by applicable law or the listing maintenance requirements of the Exchange. The Common Stock is currently quoted
on the Exchange under the trading symbol “FCEL.” The Company has not, in the 12 months preceding the date hereof,
received notice from the Exchange to the effect that the Company is not in compliance with the listing or maintenance requirements
of the Exchange. To the Company’s knowledge, it is in material compliance with all such listing and maintenance requirements.


 




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


 


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


 




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


 


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


 


f.            Organization.
The Company and any subsidiary that is a significant subsidiary (as such term is defined in Rule 1-02 of Regulation S-X promulgated
by the Commission) (each, a “Subsidiary,” collectively, the “Subsidiaries”), are, and will
be, duly organized, validly existing, and in good standing (to the extent applicable) under the laws of their respective jurisdictions
of organization. The Company and the Subsidiaries are duly qualified to transact business and are in good standing under the laws
of each other jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses
requires such qualification, and have all power and authority necessary to own or hold their respective properties and to conduct
their respective businesses as currently conducted, except where the failure to be so qualified or in good standing or have such
power or authority would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the
assets, business, operations, earnings, properties, condition (financial or otherwise), prospects, stockholders’ equity or
results of operations of the Company and the Subsidiaries taken as a whole, or prevent the consummation of the transactions contemplated
hereby (a “Material Adverse Effect”).


 


g.           Subsidiaries.
As of the date hereof, the Company’s only Subsidiaries are set forth on Schedule 6(g). The Company owns directly or
indirectly, all of the equity interests of the Subsidiaries free and clear of any lien, charge, security interest, encumbrance,
right of first refusal or other restriction, and all the equity interests of the Subsidiaries are validly issued and are fully
paid, nonassessable and free of preemptive and similar rights.


 




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h.           No
Violation or Default. Neither the Company nor any Subsidiary is (i) in violation of its charter or by-laws or similar
organizational documents; (ii) in default, and no event has occurred that, with notice or lapse of time or both, would constitute
such a default, in the due performance or observance of any term, covenant or condition contained in any indenture, mortgage, deed
of trust, loan agreement or other similar agreement or instrument to which the Company or any Subsidiary is a party or by which
the Company or any Subsidiary is bound or to which any of the property or assets of the Company or any Subsidiary is subject; or
(iii) in violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental
or regulatory authority, except, in the case of each of clauses (ii) and (iii) above, for any such violation or default that would
not, individually or in the aggregate, have a Material Adverse Effect. To the Company’s knowledge, no other party under any
material contract or other agreement to which it or any Subsidiary is a party is in default in any respect thereunder where such
default would have a Material Adverse Effect.


 


i.            No
Material Adverse Effect. Since the date of the most recent financial statements of the Company included or incorporated by
reference in the Registration Statement and Prospectus, there has not been (i) any Material Adverse Effect, (ii) any transaction
which is material to the Company and the Subsidiaries taken as a whole, (iii) any obligation or liability, direct or contingent
(including any off-balance sheet obligations), incurred by the Company or the Subsidiaries, which is material to the Company and
the Subsidiaries taken as a whole, (iv) any material change in the capital stock (other than (A) the grant of additional options
or other equity awards under the Company’s existing stock option or equity incentive plans, (B) changes in the number of
outstanding shares of Common Stock of the Company due to the issuance of shares upon the exercise or conversion of securities exercisable
for, or convertible into, Common Stock outstanding on the date hereof, (C) as a result of the issuance of Placement Shares, (D)
any repurchases of capital stock of the Company, (E) as described in a proxy statement filed on Schedule 14A or a Registration
Statement on Form S-4, or (F) otherwise publicly announced) or outstanding long-term indebtedness of the Company or the Subsidiaries,
or (v) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, other
than in each case above in the ordinary course of business or as otherwise disclosed in the Registration Statement or Prospectus.


 


j.            Capitalization.
The issued and outstanding shares of capital stock of the Company have been validly issued, are fully paid and non-assessable and,
other than as disclosed in the Registration Statement or the Prospectus, are not subject to any preemptive rights, rights of first
refusal or similar rights. The Company has an authorized, issued and outstanding capitalization as set forth in the Registration
Statement and the Prospectus as of the dates referred to therein (other than (i) the grant of additional options or other equity
awards under the Company’s existing stock option or equity incentive plans, (ii) changes in the number of outstanding shares
of Common Stock of the Company due to the issuance of shares upon the exercise or conversion of securities exercisable for, or
convertible into, Common Stock outstanding on the date hereof, (iii) as a result of the issuance of Placement Shares, or (iv) any
repurchases of capital stock of the Company) and such authorized capital stock conforms in all material respects to the description
thereof set forth in the Registration Statement and the Prospectus. The description of the Common Stock in the Registration Statement
and the Prospectus is complete and accurate in all material respects. Except as disclosed in or contemplated by the Registration
Statement or the Prospectus, the Company did not have outstanding any options to purchase, or any rights or warrants to subscribe
for, or any securities or obligations convertible into, or exchangeable for, or any contracts or commitments to issue or sell,
any shares of capital stock or other securities.


 




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k.          S-3
Eligibility. (i) At the time of filing the Registration Statement and (ii) at the time of the most recent amendment thereto
for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment,
incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), the Company met the then
applicable requirements for use of Form S-3 under the Securities Act, including compliance with General Instruction I.B.1 of Form
S-3, as applicable.


 


l.            Authorization;
Enforceability. The Company has full legal right, power and authority to enter into this Agreement and perform the transactions
contemplated hereby. This Agreement has been duly authorized, executed and delivered by the Company and is a legal, valid and binding
agreement of the Company enforceable against the Company in accordance with its terms, except to the extent that (i) enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally
and by general equitable principles and (ii) the indemnification and contribution provisions of Section 11 hereof may be
limited by federal or state securities laws and public policy considerations in respect thereof.


 


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


 


n.          No
Consents Required. No consent, approval, authorization, order, registration or qualification of or with any court or arbitrator
or any governmental or regulatory authority is required for the execution, delivery and performance by the Company of this Agreement,
and the issuance and sale by the Company of the Placement Shares as contemplated hereby, except for such consents, approvals, authorizations,
orders and registrations or qualifications (i) as may be required under applicable state securities laws or by the by-laws and
rules of the Financial Industry Regulatory Authority (“FINRA”) or the Exchange, including any notices that may
be required by the Exchange, in connection with the sale of the Placement Shares by the Agents, (ii) as may be required under the
Securities Act, and (iii) as have been previously obtained by the Company.


 




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o.           No
Preferential Rights. (i) No person, as such term is defined in Rule 1-02 of Regulation S-X promulgated under the Securities
Act (each, a “Person”), has the right, contractual or otherwise, to cause the Company to issue or sell to such
Person any Common Stock or shares of any other capital stock or other securities of the Company (other than upon the exercise of
options or warrants to purchase Common Stock, upon the exercise of options that may be granted from time to time under the Company’s
stock option or equity incentive plans, or upon the conversion or redemption of securities convertible into or redeemable for Common
Stock), (ii) no Person has any preemptive rights, rights of first refusal, or any other rights (whether pursuant to a “poison
pill” provision or otherwise) to purchase any Common Stock or shares of any other capital stock or other securities of the
Company from the Company which have not been duly waived with respect to the offering contemplated hereby, (iii) no Person has
the right to act as an underwriter or as a financial advisor to the Company in connection with the offer and sale of the Common
Stock in an “at the market” transaction, and (iv) no Person has the right, contractual or otherwise, to require the
Company to register under the Securities Act any Common Stock or shares of any other capital stock or other securities of the Company,
or to include any such shares or other securities in the Registration Statement or the offering contemplated thereby, whether as
a result of the filing or effectiveness of the Registration Statement or the sale of the Placement Shares as contemplated thereby
or otherwise, except in each case for such rights as have been waived on or prior to the date hereof.


 


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


 


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


 


r.            No
Litigation. There are no legal, governmental or regulatory actions, suits or proceedings pending, nor, to the Company’s
knowledge, any legal, governmental or regulatory investigations, to which the Company or a Subsidiary is a party or to which any
property of the Company or any Subsidiary is the subject that, individually or in the aggregate, if determined adversely to the
Company or any Subsidiary, would reasonably be expected to have a Material Adverse Effect or materially and adversely affect the
ability of the Company to perform its obligations under this Agreement; to the Company’s knowledge, no such actions, suits
or proceedings are threatened or contemplated by any governmental or regulatory authority or threatened by others that, individually
or in the aggregate, if determined adversely to the Company or any Subsidiary, would reasonably be expected to have a Material
Adverse Effect; and there are no current or pending legal, governmental or regulatory actions, suits, proceedings or, to the Company’s
knowledge, investigations that are required under the Securities Act to be described in the Prospectus that are not described in
the Prospectus (including any Incorporated Document).


 




    	 	10	 



     


    

 


s.           Licenses
and Permits. The Company and the Subsidiaries possess or have obtained, all licenses, certificates, consents, orders, approvals,
permits and other authorizations issued by, and have made all declarations and filings with, the appropriate federal, state, local
or foreign governmental or regulatory authorities that are necessary for the ownership or lease of their respective properties
or the conduct of their respective businesses, as described in the Registration Statement and the Prospectus (the “Permits”),
except where the failure to possess, obtain or make the same would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect. Neither the Company nor any Subsidiary has received written notice of any proceeding relating
to revocation or modification of any such Permit or has any reason to believe that such Permit will not be renewed in the ordinary
course, except where the revocation, modification or failure to obtain any such renewal would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.


 


t.           No
Material Defaults. Neither the Company nor any Subsidiary has defaulted on any installment on indebtedness for borrowed money
or on any rental on one or more long-term leases, which defaults, individually or in the aggregate, would reasonably be expected
to have a Material Adverse Effect. The Company has not filed a report pursuant to Section 13(a) or 15(d) of the Exchange Act since
the filing of its last Annual Report on Form 10-K, indicating that it (i) has failed to pay any dividend or sinking fund installment
on preferred stock or (ii) has defaulted on any installment on indebtedness for borrowed money or on any rental on one or more
long-term leases, which defaults, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.


 


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


 


v.          Broker/Dealer
Relationships. Neither the Company nor any Subsidiary or any affiliate (i) is required to register as a “broker”
or “dealer” in accordance with the provisions of the Exchange Act or (ii) directly or indirectly through one or more
intermediaries, controls or is a “person associated with a member” or “associated person of a member” (within
the meaning set forth in the FINRA Manual).


 


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


 


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


 




    	 	11	 



     


    

 


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


 


z.         Intellectual
Property. The Company and the Subsidiaries own or possess adequate enforceable rights to use all patents, patent applications,
trademarks (both registered and unregistered), service marks, trade names, trademark registrations, service mark registrations,
copyrights, licenses and know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures) (collectively, the “Intellectual Property”) necessary for the conduct of
their respective businesses as conducted as of the date hereof, except to the extent that the failure to own or possess adequate
rights to use such Intellectual Property would not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect; the Company and the Subsidiaries have not received any written notice of any claim of infringement or conflict
which asserted Intellectual Property rights of others, which infringement or conflict, if the subject of an unfavorable decision,
would result in a Material Adverse Effect; there are no pending, or to the Company’s knowledge, threatened judicial proceedings
or interference proceedings against the Company or its Subsidiaries challenging the Company’s or any of its Subsidiaries’
rights in or to or the validity of the scope of any of the Company’s or any of its Subsidiaries’ patents, patent applications
or proprietary information, except for such proceedings that would not, individually or in the aggregate, reasonably be expected
to result in a Material Adverse Effect; no other entity or individual has any right or claim in any of the Company’s or any
of its Subsidiaries’ patents, patent applications or any patent to be issued therefrom by virtue of any contract, license
or other agreement entered into between such entity or individual and the Company or any Subsidiary or by any non-contractual obligation,
other than by written licenses granted by the Company or any Subsidiary, except for such right or claim that would not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect; the Company and the Subsidiaries have not received
any written notice of any claim challenging the rights of the Company or its Subsidiaries in or to any Intellectual Property owned,
licensed or optioned by the Company or any Subsidiary which claim, if the subject of an unfavorable decision would reasonably be
expected to result in a Material Adverse Effect.


 




    	 	12	 



     


    

 


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


 


bb.         Disclosure
Controls. The Company maintains a system of internal accounting controls designed to provide reasonable assurance that (i)
transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded
as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect
to any differences. The Company is not aware of any material weaknesses in its internal control over financial reporting (other
than as set forth in the Registration Statement or the Prospectus). Since the date of the latest audited financial statements of
the Company included (or incorporated by reference) in the Prospectus, there has been no change in the Company’s internal
control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s
internal control over financial reporting (other than as set forth in the Registration Statement or the Prospectus). The Company
has established disclosure controls and procedures (as defined in Exchange Act Rules 13a-15 and 15d-15) that comply with the requirements
of the Exchange Act. The Company’s certifying officers have evaluated the effectiveness of the Company’s controls and
procedures as of a date within 90 days prior to the filing date of the Form 10-K for the fiscal year most recently ended (such
date, the “Evaluation Date”). The Company presented in its Form 10-K for the fiscal year most recently
ended the conclusions of the certifying officers about the effectiveness of the disclosure controls and procedures based on their
evaluations as of the most recent Evaluation Date, and the “disclosure controls and procedures” are effective.


 


cc.         Sarbanes-Oxley
Act. There is and has been no failure on the part of the Company or, to the knowledge of the Company, any of the Company’s
directors or officers, in their capacities as such, to comply in all material respects with any applicable provisions of the Sarbanes-Oxley
Act and the rules and regulations promulgated thereunder. Each of the principal executive officer and the principal financial officer
of the Company (or each former principal executive officer of the Company and each former principal financial officer of the Company
as applicable) has made all certifications required by Sections 302 and 906 of the Sarbanes-Oxley Act with respect to all reports,
schedules, forms, statements and other documents required to be filed by it or furnished by it to the Commission during the past
12 months. For purposes of the preceding sentence, “principal executive officer” and “principal financial officer”
shall have the meanings given to such terms in the Exchange Act Rules 13a-15 and 15d-15.


 




    	 	13	 



     


    

 


dd.        Finder’s
Fees. Neither the Company nor any Subsidiary has incurred any liability for any finder’s fees, brokerage commissions
or similar payments in connection with the transactions herein contemplated, except as may otherwise exist with respect to the
Agents pursuant to this Agreement.


 


ee.         Labor
Disputes. No labor disturbance by or dispute with employees of the Company or any Subsidiary exists or, to the knowledge of
the Company, is threatened which would reasonably be expected to result in a Material Adverse Effect.


 


ff.          Investment
Company Act. Neither the Company nor any Subsidiary is or, after giving effect to the offering and sale of the Placement Shares,
will be an “investment company” or an entity “controlled” by an “investment company,” as such
terms are defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”).


 


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


 


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


 


ii.          Underwriter
Agreements. The Company is not a party to any agreement with an agent or underwriter for any other “at the market”
transaction.




    	 	14	 



     


    

 


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


 


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


 


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


 


mm.      Insurance.
The Company and the Subsidiaries carry, or are covered by, insurance in such amounts and covering such risks as the Company and
the Subsidiaries reasonably believe are adequate for the conduct of their business.


 


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


 




    	 	15	 



     


    

 


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


 


pp.        No
Misstatement or Omission in an Issuer Free Writing Prospectus. Each Issuer Free Writing Prospectus, if any, as of its issue
date and as of each Applicable Time (as defined in Section 25 below), did not, does not and will not, through the completion
of the Placement or Placements for which such Issuer Free Writing Prospectus is issued, include any information that conflicted,
conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any Incorporated
Document that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any
Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by the Agents specifically
for use therein.


 


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


 


rr.          OFAC.


 


(i)          Neither
the Company nor any Subsidiary (collectively, the “Entity”) nor, to the Company’s knowledge, any director,
officer, employee, agent, affiliate or representative of the Entity, is a government, individual, or entity (in this paragraph
(rr), “Person”) that is, or is owned or controlled by a Person that is:


 


(a)          the
subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”),
the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority (collectively,
“Sanctions”), or


 




    	 	16	 



     


    

 


(b)          located,
organized or resident in a country or territory that is the subject of Sanctions.


 


(ii)        The
Entity will not, directly or indirectly, knowingly use the proceeds of the offering, or lend, contribute or otherwise make available
such proceeds to any subsidiary, joint venture partner or other Person:


 


(a)          to
fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding
or facilitation, is the subject of Sanctions; or


 


(b)          in
any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering,
whether as underwriter, advisor, investor or otherwise).


 


(iii)       The
Entity represents and covenants that, except as detailed in the Registration Statement and the Prospectus, for the past 5 years,
it has not knowingly engaged in and is not now knowingly engaged in any dealing or transactions with any Person, or in any country
or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.


 


ss.        Stock
Transfer Taxes. On each Settlement Date, all material stock transfer or other similar transfer taxes (other than income taxes)
which are required to be paid in connection with the sale and transfer of the Placement Shares to be sold hereunder will be, or
will have been, fully paid or provided for by the Company and all laws imposing such taxes will be or will have been fully complied
with by the Company, except in each case for any taxes or non-compliance that would not reasonably be expected to have a Material
Adverse Effect.


 


tt.         FINRA
Exemption. To enable the Agents to rely on Rule 5110(b)(7)(C)(i) of FINRA, the Company represents that the Company (i) has
a non-affiliate, public common equity float of at least $150 million or a non-affiliate, public common equity float of at least
$100 million and annual trading volume of at least three million shares and (ii) has been subject to the Exchange Act reporting
requirements for a period of at least 36 months.


 


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


 


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


 




    	 	17	 



     


    

 


a.           Registration
Statement Amendments. After the date of this Agreement and during any period in which a prospectus relating to any Placement
Shares is required to be delivered by the Agents under the Securities Act (including in circumstances where such requirement may
be satisfied pursuant to Rule 172 under the Securities Act) (the “Prospectus Delivery Period”), (i) the Company
will notify the Agents promptly of the time when any subsequent amendment to the Registration Statement, other than documents incorporated
by reference or amendments not related to any Placement, has been filed with the Commission and/or has become effective or any
subsequent supplement to the Prospectus, other than documents incorporated by reference, has been filed and of any request by the
Commission for any amendment or supplement to the Registration Statement or Prospectus related to the Placement or for additional
information related to the Placement; (ii) the Company will prepare and file with the Commission, promptly upon the Agents’
request, any amendments or supplements to the Registration Statement or Prospectus that, upon the advice of the Company’s
legal counsel, may be necessary or advisable in connection with the distribution of the Placement Shares by the Agents (provided,
however, that the failure of the Agents to make such request shall not relieve the Company of any obligation or liability hereunder,
or affect the Agents’ right to rely on the representations and warranties made by the Company in this Agreement and provided,
further, that the only remedy the Agents shall have with respect to the failure to make such filing shall be to cease making
sales under this Agreement until such amendment or supplement is filed); (iii) the Company will not file any amendment or supplement
to the Registration Statement or Prospectus relating to the Placement Shares or a security convertible into the Placement Shares
(other than an Incorporated Document) unless a copy thereof has been submitted to the Agents within a reasonable period of time
before the filing and the Agents have not reasonably objected thereto (provided, however, that (A) the failure of the Agents
to make such objection shall not relieve the Company of any obligation or liability hereunder, or affect the Agents’ right
to rely on the representations and warranties made by the Company in this Agreement and (B) the Company has no obligation to provide
the Agents any advance copy of such filing or to provide the Agents an opportunity to object to such filing if the filing does
not name the Agents or does not relate to the transaction herein provided; and provided, further, that the only remedy the
Agents shall have with respect to the failure by the Company to obtain such consent shall be to cease making sales under this Agreement)
and the Company will furnish to the Agents at the time of filing thereof a copy of any document that upon filing is deemed to be
incorporated by reference into the Registration Statement or Prospectus, except for those documents available via EDGAR; and (iv)
the Company will cause each amendment or supplement to the Prospectus to be filed with the Commission as required pursuant to the
applicable paragraph of Rule 424(b) of the Securities Act or, in the case of any document to be incorporated therein by reference,
to be filed with the Commission as required pursuant to the Exchange Act, within the time period prescribed (the determination
to file or not file any amendment or supplement with the Commission under this Section 7(a), based on the Company’s
reasonable opinion or reasonable objections, shall be made exclusively by the Company).


 


b.           Notice
of Commission Stop Orders. The Company will advise the Agents, promptly after it receives notice or obtains knowledge thereof,
of the issuance or threatened issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement,
of the suspension of the qualification of the Placement Shares for offering or sale in any jurisdiction, or of the initiation or
threatening of any proceeding for any such purpose; and it will use its commercially reasonable efforts to prevent the issuance
of any stop order or to obtain its withdrawal if such a stop order should be issued. The Company will advise the Agents promptly
after it receives any request by the Commission for any amendments to the Registration Statement or any amendment or supplements
to the Prospectus or any Issuer Free Writing Prospectus or for additional information related to the offering of the Placement
Shares or for additional information related to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus.


 




    	 	18	 



     


    

 


c.           Delivery
of Prospectus; Subsequent Changes. During the Prospectus Delivery Period, the Company will use its commercially reasonable
efforts to comply in all material respects with all requirements imposed upon it by the Securities Act, as from time to time in
force, and to file on or before their respective due dates all reports and any definitive proxy or information statements required
to be filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14, 15(d) or any other provision of or under
the Exchange Act. If the Company has omitted any information from the Registration Statement pursuant to Rule 430A under the Securities
Act, it will use its commercially reasonable efforts to comply with the provisions of and make all requisite filings with the Commission
pursuant to said Rule 430A and to notify the Agents promptly of all such filings. If during the Prospectus Delivery Period any
event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances then existing,
not misleading, or if during such Prospectus Delivery Period it is necessary to amend or supplement the Registration Statement
or Prospectus to comply with the Securities Act, the Company will promptly notify the Agents to suspend the offering of Placement
Shares during such period and the Company will promptly amend or supplement the Registration Statement or Prospectus (at the expense
of the Company) so as to correct such statement or omission or effect such compliance; provided, however, that the Company
may delay the filing of any amendment or supplement, if in the judgment of the Company, it is in the best interest of the Company.


 


d.           Listing
of Placement Shares. During the Prospectus Delivery Period, the Company will use its commercially reasonable efforts to cause
the Placement Shares to be listed on the Exchange and to qualify the Placement Shares for sale under the securities laws of such
jurisdictions in the United States as the Agents reasonably designate and to continue such qualifications in effect so long as
required for the distribution of the Placement Shares; provided, however, that the Company shall not be required in connection
therewith to qualify as a foreign corporation or dealer in securities, file a general consent to service of process, or subject
itself to taxation in any jurisdiction if it is not otherwise so subject.


 


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


 




    	 	19	 



     


    

 


f.           Earnings
Statement. The Company will make generally available to its security holders as soon as practicable, but in any event not later
than 15 months after the end of the Company’s current fiscal quarter, an earnings statement covering a 12-month period that
satisfies the provisions of Section 11(a) and Rule 158 of the Securities Act. The Agents and the Company acknowledge and agree
that the Company’s ordinary, timely-filed periodic filings with the Commission pursuant to the Exchange Act may be used to
satisfy this obligation to the extent consistent with the requirements set forth herein.


 


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


 


h.           Notice
of Other Sales. Without the prior written consent of the Agents, the Company will not, directly or indirectly, offer to sell,
sell, contract to sell, grant any option to sell or otherwise dispose of any Common Stock (other than the Placement Shares offered
pursuant to this Agreement) or securities convertible into or exchangeable for Common Stock, warrants or any rights to purchase
or acquire, Common Stock during the period beginning on the date on which any Placement Notice is delivered to an Agent hereunder
and ending on the third (3rd) Trading Day immediately following the final Settlement Date with respect to Placement Shares sold
pursuant to such Placement Notice (or, if the Placement Notice has been terminated or suspended prior to the sale of all Placement
Shares covered by a Placement Notice, the date of such suspension or termination); and will not directly or indirectly in any other
“at the market” or continuous equity transaction offer to sell, sell, contract to sell, grant any option to sell or
otherwise dispose of any Common Stock (other than the Placement Shares offered pursuant to this Agreement) or securities convertible
into or exchangeable for Common Stock, warrants or any rights to purchase or acquire, Common Stock prior to the termination of
this Agreement; provided, however, that such restrictions will not apply in connection with the Company’s issuance
or sale of (i) Common Stock (including restricted stock), options to purchase Common Stock, restricted stock units or phantom equity
awards, or Common Stock issuable upon the exercise of options or upon conversion of restricted stock units or phantom equity awards,
in each case, pursuant to any stock option, equity incentive or other employee benefits plan, employee stock purchase plan, stock
ownership plan or dividend reinvestment plan (but not Common Stock subject to a waiver to exceed plan limits in its dividend reinvestment
plan) of the Company whether now in effect or hereafter implemented; (ii) Common Stock issuable upon conversion of securities or
the exercise of warrants, options or other rights in effect or outstanding, and disclosed in filings by the Company available on
EDGAR or otherwise in writing to the Agents, (iii) Common Stock issuable upon the exercise of participation rights disclosed in
the Prospectus (including the Incorporated Documents), (iv) Common Stock, or securities convertible into or exercisable for
Common Stock, offered and sold in a privately negotiated transaction to vendors, customers, strategic partners or potential strategic
partners or other investors conducted in a manner so as not to be integrated with the offering of Common Stock hereby; and (v)
Common Stock in connection with any acquisition, strategic investment or other similar transaction (including any joint venture,
strategic alliance or partnership).


 


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


 




    	 	20	 



     


    

 


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


 


k.           Required
Filings Relating to Placement of Placement Shares. The Company agrees that on such dates as the Securities Act shall require,
the Company will (i) file a prospectus supplement with the Commission under the applicable paragraph of Rule 424(b) under the Securities
Act, which prospectus supplement will set forth, within the relevant period, the amount of Placement Shares sold through the Agents,
the Net Proceeds to the Company and the compensation payable by the Company to the Agents with respect to such Placement Shares
(provided that the Company may satisfy its obligations under this Section 7(k)(i) by making a filing in accordance
with the Exchange Act including such information), and (ii) deliver such number of copies of each such prospectus supplement to
each exchange or market on which such sales were effected as may be required by the rules or regulations of such exchange or market.


 


l.            Representation
Dates; Certificate. Each time during the term of this Agreement that the Company:


 


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


 


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


 


(iii)        files
its quarterly reports on Form 10-Q under the Exchange Act; or


 


(iv)        files
a current report on Form 8-K containing amended financial information (other than information “furnished” pursuant
to Items 2.02 or 7.01 of Form 8-K or to provide disclosure pursuant to Item 8.01 of Form 8-K relating to the reclassification of
certain properties as discontinued operations in accordance with Statement of Financial Accounting Standards No. 144) under the
Exchange Act;


 


(Each date of filing of one or more of
the documents referred to in clauses (i) through (iv) shall be a “Representation Date.”)


 




    	 	21	 



     


    

 


the Company shall furnish the Agents (but
in the case of clause (iv) above only if the Agents reasonably determine that the information contained in such Form 8-K is material)
with a certificate, in the form attached hereto as Exhibit 7(l). The requirement to provide a certificate under this Section
7(l) shall be waived for any Representation Date occurring at a time at which no Placement Notice is pending, which waiver
shall continue until the earlier to occur of the date the Company delivers a Placement Notice hereunder (which for such calendar
quarter shall be considered a Representation Date) and the next occurring Representation Date on which the Company files its annual
report on Form 10-K. Notwithstanding the foregoing, (i) upon the delivery of the first Placement Notice hereunder and (ii) if the
Company subsequently decides to sell Placement Shares following a Representation Date when the Company relied on such waiver and
did not provide the Agents with a certificate under this Section 7(l), then before the Agents sell any Placement Shares,
the Company shall provide the Agents with a certificate, in the form attached hereto as Exhibit 7(l), dated the date of
the Placement Notice.


 


m.           Legal
Opinion. On or prior to the date of the first Placement Notice given hereunder the Company shall cause to be furnished to the
Agents a written opinion and a negative assurance letter of Foley & Lardner LLP (“Company Counsel”), or
other counsel reasonably satisfactory to the Agents, each in form and substance reasonably satisfactory to the Agents. Thereafter,
within five (5) Trading Days of each Representation Date with respect to which the Company is obligated to deliver a certificate
in the form attached hereto as Exhibit 7(l) for which no waiver is applicable, the Company shall cause to be furnished to
the Agents a negative assurance letter of Company Counsel in form and substance reasonably satisfactory to the Agents; provided
that, in lieu of such negative assurance for subsequent periodic filings under the Exchange Act, counsel may furnish the Agents
with a letter (a “Reliance Letter”) to the effect that the Agents may rely on the negative assurance letter
previously delivered under this Section 7(m) to the same extent as if it were dated the date of such Reliance Letter (except
that statements in such prior letter shall be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented
as of the date of the Reliance Letter).


 


n.           Comfort
Letter. On or prior to the date of the first Placement Notice given hereunder and within five (5) Trading Days after each subsequent
Representation Date, other than pursuant to Section 7(l)(iii), the Company shall cause its independent accountants to furnish
the Agents letters (the “Comfort Letters”), dated the date the Comfort Letter is delivered, which shall meet
the requirements set forth in this Section 7(n). The Comfort Letter from the Company’s independent accountants shall
be in a form and substance reasonably satisfactory to the Agents, (i) confirming that they are an independent public accounting
firm within the meaning of the Securities Act and the PCAOB, (ii) stating, as of such date, the conclusions and findings of such
firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters”
to underwriters in connection with registered public offerings (the first such letter, the “Initial Comfort Letter”),
and (iii) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter
had it been given on such date and modified as necessary to relate to the Registration Statement and the Prospectus, as amended
and supplemented to the date of such Comfort Letter.


 


o.           Market
Activities. The Company will not, directly or indirectly, (i) take any action designed to cause or result in, or that constitutes
or would reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of Common Stock or (ii) sell, bid for, or purchase Common Stock in violation of Regulation M, or
pay anyone any compensation for soliciting purchases of the Placement Shares other than the Agents.


 




    	 	22	 



     


    

 


p.           Investment
Company Act. The Company will conduct its affairs in such a manner so as to reasonably ensure that neither it nor the Subsidiaries
will be or become, at any time prior to the termination of this Agreement, an “investment company,” as such term is
defined in the Investment Company Act.


 


q.           No
Offer to Sell. Other than an Issuer Free Writing Prospectus approved in advance by the Company and the Agents in their capacity
as agents hereunder pursuant to Section 23, neither the Agents nor the Company (including its agents and representatives,
other than the Agents in their capacity as such) will make, use, prepare, authorize, approve or refer to any written communication
(as defined in Rule 405), required to be filed with the Commission, that constitutes an offer to sell or solicitation of an offer
to buy Placement Shares hereunder.


 


r.            Sarbanes-Oxley
Act. The Company will use commercially reasonable efforts to maintain and keep accurate books and records reflecting its assets
and maintain internal accounting controls in a manner designed to provide reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external purposes in accordance with GAAP and including those policies
and procedures that (i) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions
and dispositions of the assets of the Company, (ii) provide reasonable assurance that transactions are recorded as necessary to
permit the preparation of the Company’s consolidated financial statements in accordance with GAAP, (iii) provide reasonable
assurance that receipts and expenditures of the Company are being made only in accordance with management’s and the Company’s
directors’ authorization, and (iv) provide reasonable assurance regarding prevention or timely detection of unauthorized
acquisition, use or disposition of the Company’s assets that could have a material effect on its financial statements. The
Company will maintain disclosure controls and procedures that comply with the requirements of the Exchange Act.


 


8.          Representations
and Covenants of the Agents. Each Agent represents and warrants that it is duly registered as a broker-dealer under FINRA,
the Exchange Act and the applicable statutes and regulations of each state in which the Placement Shares will be offered and sold,
except such states in which such Agent is exempt from registration or such registration is not otherwise required. Each Agent shall
continue, for the term of this Agreement, to be duly registered as a broker-dealer under FINRA, the Exchange Act and the applicable
statutes and regulations of each state in which the Placement Shares will be offered and sold, except such states in which it is
exempt from registration or such registration is not otherwise required during the term of this Agreement. Each Agent shall comply
with all applicable laws and regulations in connection with the transactions contemplated by this Agreement, including the issuance
and sale through such Agent of the Placement Shares. Other than an Issuer Free Writing Prospectus approved in advance by the Company
and the Agents in their capacity as agents hereunder pursuant to Section 23, the Agents (including their respective agents
and representatives) will not make, use, prepare, authorize, approve or refer to any written communication (as defined in Rule
405), required to be filed with the Commission, that constitutes an offer to sell or solicitation of an offer to buy Placement
Shares hereunder.


 




    	 	23	 



     


    

 


9.           Payment
of Expenses. The Company will pay all expenses incident to the performance of its obligations under this Agreement, including
(i) the preparation, filing, including any fees required by the Commission, and printing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment and supplement thereto and each Issuer Free Writing
Prospectus, in such number as the Agents shall deem reasonably necessary, (ii) the printing and delivery to the Agents of this
Agreement and such other documents as may be reasonably required in connection with the offering, purchase, sale, issuance or delivery
of the Placement Shares, (iii) the preparation, issuance and delivery of the certificates, if any, for the Placement Shares to
the Agents, including any stock or other transfer taxes and any capital duties, stamp duties or other duties or taxes payable upon
the sale, issuance or delivery of the Placement Shares to the Agents, (iv) the fees and disbursements of the counsel, accountants
and other advisors to the Company, (v) the actual, reasonable, and documented out-of-pocket fees and disbursements of counsel to
the Agents up to $50,000, (vi) the fees and expenses of the transfer agent and registrar for the Common Stock, (vii) the filing
fees incident to any review by FINRA of the terms of the sale of the Placement Shares, and (viii) the fees and expenses incurred
in connection with the listing of the Placement Shares on the Exchange.


 


10.         Conditions
to the Agents’ Obligations. The obligations of the Agents hereunder with respect to a Placement will be subject to the
continuing accuracy and completeness of the representations and warranties made by the Company herein (other than those representations
and warranties made as of a specified date or time), to the due performance in all material respects by the Company of its obligations
hereunder, to the completion by each Agent of a due diligence review satisfactory to such Agent in its reasonable judgment, and
to the continuing reasonable satisfaction (or waiver by the Agents in their sole discretion) of the following additional conditions:


 


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


 


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




    	 	24	 



     


    

 


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


 


d.           Material
Changes. Except as contemplated in the Prospectus, or disclosed in the Company’s reports filed with the Commission, there
shall not have been any Material Adverse Effect, or any development that would cause a Material Adverse Effect, or a downgrading
in or withdrawal of the rating assigned to any of the Company’s securities (other than asset backed securities) by any “nationally
recognized statistical rating organization,” as such term is defined by the Commission for purposes of Rule 436(g)(2) under
the Securities Act (a “Rating Organization”), or a public announcement by any Rating Organization that it has
under surveillance or review its rating of any of the Company’s securities (other than asset backed securities), the effect
of which, in the case of any such action by a Rating Organization described above, in the reasonable judgment of the Agents (without
relieving the Company of any obligation or liability it may otherwise have), is so material as to make it impracticable or inadvisable
to proceed with the offering of the Placement Shares on the terms and in the manner contemplated in the Prospectus.


 


e.           Legal
Opinion. The Agents shall have received the opinion and negative assurance letter of Company Counsel required to be delivered
pursuant to Section 7(m) on or before the date on which such delivery of such opinion and negative assurance letter
are required pursuant to Section 7(m).


 


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


 


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


 


h.           Secretary’s
Certificate. On or prior to the first Representation Date, the Agents shall have received a certificate, signed on behalf of
the Company by its corporate Secretary, in form and substance reasonably satisfactory to the Agents and their counsel.


 


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


 




    	 	25	 



     


    

 


j.            Other
Materials. On each date on which the Company is required to deliver a certificate pursuant to Section 7(l), the Company
shall have furnished to the Agents such appropriate further information, certificates and documents as the Agents may reasonably
request and which are usually and customarily furnished by an issuer of securities in connection with a securities offering of
the type contemplated hereby. All such opinions, certificates, letters and other documents will be in compliance with the provisions
hereof.


 


k.          Securities
Act Filings Made. All filings with the Commission with respect to the Placement Shares required by Rule 424 under the Securities
Act to have been filed prior to the issuance of any Placement Notice hereunder shall have been made within the applicable time
period prescribed for such filing by Rule 424.


 


l.            Approval
for Listing. The Placement Shares shall either have been approved for listing on the Exchange, subject only to notice of issuance,
or the Company shall have filed an application for listing of the Placement Shares on the Exchange at, or prior to, the issuance
of any Placement Notice.


 


m.           No
Termination Event. There shall not have occurred any event that would permit the Agents to terminate this Agreement pursuant
to Section 13(a).


 


11.         Indemnification
and Contribution.


 


(a)          Company
Indemnification. The Company agrees to indemnify and hold harmless each Agent, its partners, members, directors, officers,
employees and agents and each person, if any, who controls such Agent within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act as follows:


 


(i)          against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, joint or several, arising out of or based upon
any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto),
or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements
therein not misleading, or arising out of any untrue statement or alleged untrue statement of a material fact included in any related
Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they
were made, not misleading;


 


(ii)         against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, joint or several, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or
omission; provided that (subject to Section 11(d) below) any such settlement is effected with the written consent
of the Company, which consent shall not unreasonably be delayed or withheld; and


 


(iii)        against
any and all expense whatsoever, as incurred (including the actual, reasonable, and documented out-of-pocket fees and disbursements
of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission,
or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above;


 




    	 	26	 



     


    

 


provided, however, that this indemnity
agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or
omission or alleged untrue statement or omission made solely in reliance upon and in conformity with written information furnished
to the Company by such Agent expressly for use in the Registration Statement (or any amendment thereto), or in any related Issuer
Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto).


 


(b)          Indemnification
by the Agents. Each Agent agrees to indemnify and hold harmless the Company and its directors and officers, and each person,
if any, who (i) controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act or
(ii) is controlled by or is under common control with the Company against any and all loss, liability, claim, damage and expense
described in the indemnity contained in Section 11(a), as incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Registration Statement (or any amendments thereto) or in any related Issuer
Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written
information relating to such Agent and furnished to the Company by such Agent expressly for use therein.


 


(c)          Procedure.
Any party that proposes to assert the right to be indemnified under this Section 11 will, promptly after receipt of notice
of commencement of any action against such party in respect of which a claim is to be made against an indemnifying party or parties
under this Section 11, notify each such indemnifying party of the commencement of such action, enclosing a copy of all papers
served, but the omission so to notify such indemnifying party will not relieve the indemnifying party from (i) any liability that
it might have to any indemnified party otherwise than under this Section 11 and (ii) any liability that it may have to any
indemnified party under the foregoing provisions of this Section 11 unless, and only to the extent that, such omission results
in the forfeiture of substantive rights or defenses by the indemnifying party. If any such action is brought against any indemnified
party and it notifies the indemnifying party of its commencement, the indemnifying party will be entitled to participate in and,
to the extent that it elects by delivering written notice to the indemnified party promptly after receiving notice of the commencement
of the action from the indemnified party, jointly with any other indemnifying party similarly notified, to assume the defense of
the action, with counsel reasonably satisfactory to the indemnified party, and after notice from the indemnifying party to the
indemnified party of its election to assume the defense, the indemnifying party will not be liable to the indemnified party for
any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred
by the indemnified party in connection with the defense. The indemnified party will have the right to employ its own counsel in
any such action, but the fees, expenses and other charges of such counsel will be at the expense of such indemnified party unless
(1) the employment of counsel by the indemnified party has been authorized in writing by the indemnifying party, (2) the indemnified
party has reasonably concluded (based on written advice of counsel) that there are legal defenses available to it or other indemnified
parties that are different from or in addition to those available to the indemnifying party, (3) a conflict or potential conflict
exists (based on written advice of counsel to the indemnified party) between the indemnified party and the indemnifying party (in
which case the indemnifying party will not have the right to direct the defense of such action on behalf of the indemnified party),
or (4) the indemnifying party has not in fact employed counsel to assume the defense of such action within a reasonable time after
receiving notice of the commencement of the action, in each of which cases the actual, reasonable, and documented out-of-pocket
fees, disbursements and other charges of counsel will be at the expense of the indemnifying party or parties. It is understood
that the indemnifying party or parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the actual, reasonable, and documented out-of-pocket fees, disbursements and other charges of more than one separate
firm admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such actual, reasonable,
and documented out-of-pocket fees, disbursements and other charges will be reimbursed by the indemnifying party promptly after
the indemnifying party receives a written invoice relating to fees, disbursements and other charges in reasonable detail. An indemnifying
party will not, in any event, be liable for any settlement of any action or claim effected without its written consent. No indemnifying
party shall, without the prior written consent of each indemnified party, settle or compromise or consent to the entry of any judgment
in any pending or threatened claim, action or proceeding relating to the matters contemplated by this Section 11 (whether
or not any indemnified party is a party thereto), unless such settlement, compromise or consent (1) includes an unconditional release
of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and (2) does not
include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.


 




    	 	27	 



     


    

 


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


 


12.         Representations
and Agreements to Survive Delivery. The indemnity and contribution agreements contained in Section 11 of this Agreement
and all representations and warranties of the Company and the Agents herein or in certificates delivered pursuant hereto shall
survive, as of their respective dates, regardless of (i) any investigation made by or on behalf of the Agents, any controlling
persons, or the Company (or any of their respective officers, directors or controlling persons), (ii) delivery and acceptance of
the Placement Shares and payment therefor, or (iii) any termination of this Agreement.


 




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13.         Termination.


 


a.           Each
Agent may terminate this Agreement as to such Agent, by notice to the Company, as hereinafter specified at any time (1) if there
has been, since the time of execution of this Agreement or since the date as of which information is given in the Prospectus, any
Material Adverse Effect, or any development that would have a Material Adverse Effect that, in the reasonable judgment of such
Agent, is material and adverse and makes it impractical or inadvisable to market the Placement Shares or to enforce contracts for
the sale of the Placement Shares, (2) if there has occurred any material adverse change in the financial markets in the United
States or the international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis or
any change or development involving a prospective change in national or international political, financial or economic conditions,
in each case the effect of which is such as to make it, in the reasonable judgment of such Agent, impracticable or inadvisable
to market the Placement Shares or to enforce contracts for the sale of the Placement Shares, (3) if trading in the Common Stock
has been suspended or limited by the Commission or the Exchange, or if trading generally on the Exchange has been suspended or
limited, or minimum prices for trading have been fixed on the Exchange, (4) if any suspension of trading of any securities of the
Company on any exchange or in the over-the-counter market shall have occurred and be continuing, (5) if a major disruption of securities
settlements or clearance services in the United States shall have occurred and be continuing, or (6) if a banking moratorium
has been declared by either U.S. Federal or New York authorities. Any such termination shall be without liability of any party
to any other party except that the provisions of Section 9 (Payment of Expenses), Section 11 (Indemnification and
Contribution), Section 12 (Representations and Agreements to Survive Delivery), Section 18 (Governing Law and Time;
Waiver of Jury Trial) and Section 19 (Consent to Jurisdiction) hereof shall remain in full force and effect notwithstanding
such termination. If an Agent elects to terminate this Agreement as provided in this Section 13(a), such Agent shall provide
the required written notice as specified in Section 14 (Notices).


 


b.          The
Company shall have the right, by giving five (5) Business Days’ notice as hereinafter specified, to terminate this Agreement
in its sole discretion at any time after the date of this Agreement. Any such termination shall be without liability of any party
to any other party except that the provisions of Section 9 (Payment of Expenses), Section 11 (Indemnification and
Contribution), Section 12 (Representations and Agreements to Survive Delivery), Section 18 (Governing Law and Time;
Waiver of Jury Trial) and Section 19 (Consent to Jurisdiction) hereof shall remain in full force and effect notwithstanding
such termination.


 


c.           Each
Agent shall have the right, by giving five (5) Business Days’ notice as hereinafter specified, to terminate this Agreement
as to such Agent in its sole discretion at any time after the date of this Agreement. Any such termination shall be without liability
of any party to any other party except that the provisions of Section 9 (Payment of Expenses), Section 11 (Indemnification
and Contribution), Section 12 (Representations and Agreements to Survive Delivery), Section 18 (Governing Law and
Time; Waiver of Jury Trial) and Section 19 (Consent to Jurisdiction) hereof shall remain in full force and effect notwithstanding
such termination.


 


d.           Unless
earlier terminated pursuant to this Section 13, this Agreement shall automatically terminate upon the issuance and sale
of all of the Placement Shares through the Agents on the terms and subject to the conditions set forth herein except that the provisions
of Section 9 (Payment of Expenses), Section 11 (Indemnification and Contribution), Section 12 (Representations
and Agreements to Survive Delivery), Section 18 (Governing Law and Time; Waiver of Jury Trial) and Section 19 (Consent
to Jurisdiction) hereof shall remain in full force and effect notwithstanding such termination.


 




    	 	29	 



     


    

 


e.           This
Agreement shall remain in full force and effect unless terminated pursuant to Sections 13(a), (b), (c), or
(d) above or otherwise by mutual agreement of the parties; provided, however, that any such termination by mutual
agreement shall in all cases be deemed to provide that Section 9 (Payment of Expenses), Section 11 (Indemnification
and Contribution), Section 12 (Representations and Agreements to Survive Delivery), Section 18 (Governing Law and
Time; Waiver of Jury Trial) and Section 19 (Consent to Jurisdiction) shall remain in full force and effect. Upon termination
of this Agreement, the Company shall not have any liability to the Agents for any discount, commission or other compensation with
respect to any Placement Shares not otherwise sold by the Agents under this Agreement.


 


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


 


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


 


B. Riley FBR, Inc.


299 Park Avenue


New York, NY 10171


		Attention:	General Counsel



		Telephone:	(212) 457-9947



		Email:	atmdesk@brileyfbr.com



 


and


 


Oppenheimer & Co. Inc.


85 Broad Street, 25th Floor


New York, NY 10004


		Attention:	Peter Vogelsang, OGC



		Telephone:	(212) 667-8195



		Email:	peter.vogelsang@opco.com



 


with a copy to:


 


Duane Morris LLP


One Riverfront Plaza

1037 Raymond Boulevard, Suite 1800

Newark, New Jersey 07102-5429


		Attention:	James T. Seery



		Telephone:	(973) 424-2088



		Email:	jtseery@duanemorris.com



 




    	 	30	 



     


    

 


and if to the Company, shall be delivered
to:


 


FuelCell Energy, Inc.


3 Great Pasture Road


Danbury, Connecticut 06813


		Attention:	Michael Bishop



		Telephone:	(203) 825-6049



		Email:	mbishop@fce.com



 


with a copy to:


 


Foley & Lardner LLP


111 Huntington Avenue, Suite 2500


Boston, Massachusetts 02199-7610


		Attention:	Paul D. Broude



		Telephone:	(617) 342-4027



		Email:	PBroude@foley.com



 


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


 


An email communication (“Electronic
Notice”) shall be deemed written notice for purposes of this Section 14 if sent to the email address specified
by the receiving party under separate cover. Electronic Notice shall be deemed received at the time the party sending Electronic
Notice receives confirmation of receipt by the receiving party. Any party receiving Electronic Notice may request and shall be
entitled to receive the notice on paper, in a non-electronic form (“Non-electronic Notice”), which shall be
sent to the requesting party within ten (10) days of receipt of the written request for Non-electronic Notice.


 


15.         Successors
and Assigns. This Agreement shall inure to the benefit of and be binding upon the Company and the Agents and their respective
successors and the affiliates, controlling persons, officers and directors referred to in Section 11 hereof. References
to any of the parties contained in this Agreement shall be deemed to include the successors and permitted assigns of such party.
Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective
successors and permitted assigns any rights, remedies, obligations or liabilities under or by reason of this Agreement, except
as expressly provided in this Agreement. Neither the Company nor either of the Agents may assign its rights or obligations under
this Agreement without the prior written consent of the other parties.


 




    	 	31	 



     


    

 


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


 


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


 


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


 


19.         CONSENT
TO JURISDICTION. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING
IN THE CITY OF NEW YORK, BOROUGH OF MANHATTAN, FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH ANY TRANSACTION
CONTEMPLATED HEREBY, AND HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT
IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF ANY SUCH COURT, THAT SUCH SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT
FORUM OR THAT THE VENUE OF SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER. EACH PARTY HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF
PROCESS AND CONSENTS TO PROCESS BEING SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY THEREOF (CERTIFIED OR REGISTERED
MAIL, RETURN RECEIPT REQUESTED) TO SUCH PARTY AT THE ADDRESS IN EFFECT FOR NOTICES TO IT UNDER THIS AGREEMENT AND AGREES THAT SUCH
SERVICE SHALL CONSTITUTE GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING CONTAINED HEREIN SHALL BE DEEMED TO
LIMIT IN ANY WAY ANY RIGHT TO SERVE PROCESS IN ANY MANNER PERMITTED BY LAW.


 




    	 	32	 



     


    

 


20.         Use
of Information. The Agents may not use any information gained in connection with this Agreement and the transactions contemplated
by this Agreement, including due diligence, to advise any party with respect to transactions not expressly approved by the Company.


 


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


 


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


 


23.         Permitted
Free Writing Prospectuses. The Company represents, warrants and agrees that, unless it obtains the prior consent of the Agents,
which consent shall not be unreasonably withheld, conditioned or delayed, and each of the Agents represents, warrants and agrees
that, unless it obtains the prior consent of the Company, which consent shall not be unreasonably withheld, conditioned, or delayed,
it has not made and will not make any offer relating to the Placement Shares that would constitute an Issuer Free Writing Prospectus,
or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405, required to be filed with the
Commission. Any such free writing prospectus consented to by the Agents or by the Company, as the case may be, is hereinafter referred
to as a “Permitted Free Writing Prospectus.” The Company represents and warrants that it has treated and agrees that
it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433,
and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including
timely filing with the Commission where required, legending and record keeping. For the purposes of clarity, the parties hereto
agree that all free writing prospectuses, if any, listed in Exhibit 23 hereto are Permitted Free Writing Prospectuses.


 


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


 


a.           each
Agent is acting solely as agent in connection with the public offering of the Placement Shares and in connection with each transaction
contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between
the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party,
on the one hand, and the Agents, on the other hand, has been or will be created in respect of any of the transactions contemplated
by this Agreement, irrespective of whether or not the Agents have advised or are advising the Company on other matters, and the
Agents have no obligation to the Company with respect to the transactions contemplated by this Agreement except the obligations
expressly set forth in this Agreement;


 


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


 




    	 	33	 



     


    

 


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


 


d.           it
is aware that each Agent and its affiliates are engaged in a broad range of transactions which may involve interests that differ
from those of the Company and neither Agent has any obligation to disclose such interests and transactions to the Company by virtue
of any fiduciary, advisory or agency relationship or otherwise; and


 


e.           it
waives, to the fullest extent permitted by law, any claims it may have against the Agents for breach of fiduciary duty or alleged
breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that the Agents shall
not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim
or to any person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company,
other than in respect of the Agents’ obligations under this Agreement and to keep information provided by the Company to
the Agents and their counsel confidential to the extent not otherwise publicly-available.


 


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


 


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


 


“Issuer Free
Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433, relating to the Placement
Shares that (1) is required to be filed with the Commission by the Company, (2) is a “road show” that is a “written
communication” within the meaning of Rule 433(d)(8)(i) whether or not required to be filed with the Commission, or (3) is
exempt from filing pursuant to Rule 433(d)(5)(i) because it contains a description of the Placement Shares or of the offering that
does not reflect the final terms, in each case in the form filed or required to be filed with the Commission or, if not required
to be filed, in the form retained in the Company’s records pursuant to Rule 433(g) under the Securities Act.


 


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


 


All references in this
Agreement to financial statements and schedules and other information that is “contained,” “included” or
“stated” in the Registration Statement or the Prospectus (and all other references of like import) shall be deemed
to mean and include all such financial statements and schedules and other information that is incorporated by reference in the
Registration Statement or the Prospectus, as the case may be.


 


All references in this
Agreement to the Registration Statement, the Prospectus or any amendment or supplement to any of the foregoing shall be deemed
to include the copy filed with the Commission pursuant to EDGAR; all references in this Agreement to any Issuer Free Writing Prospectus
(other than any Issuer Free Writing Prospectuses that, pursuant to Rule 433, are not required to be filed with the Commission)
shall be deemed to include the copy thereof filed with the Commission pursuant to EDGAR; and all references in this Agreement to
“supplements” to the Prospectus shall include, without limitation, any supplements, “wrappers” or similar
materials prepared in connection with any offering, sale or private placement of any Placement Shares by the Agents outside of
the United States.


 




    	 	34	 



     


    

 


26.         No
Partnership, Joint Venture, etc. Each of the Agents is engaged hereunder severally and not as the partner, joint-venturer or
joint participant of any other Agent. No Agent undertakes to monitor, audit, investigate, question or review the actions or performance
of any other Agent. No Agent shall have liability hereunder for the actions or omissions of any other Agent.


 


[Remainder of the page intentionally left
blank]


 




    	 	35	 



     


    

 


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


 


	 	Very truly yours,
	 	 	 	 
	 	 	FUELCELL ENERGY, INC.
	 	 	 	 
	 	 	By:	/s/ Michael S. Bishop
	 	 	 	Name: Michael S. Bishop
	 	 	 	Title:  Sr. Vice President, CFO and Treasurer


 


	 	ACCEPTED as of the date first-above written:
	 	 	 	 
	 	 	B. RILEY FBR, INC.
	 	 	 	 
	 	 	By:	/s/ Patrice McNicoll
	 	 	 	Name:  Patrice McNicoll
	 	 	 	Title:  Co-Head of Investment Banking
	 	 	 	 
	 	 	OPPENHEIMER & CO. INC.
	 	 	 	 
	 	 	By:	/s/ John R. Book
	 	 	 	Name: John R. Book
	 	 	 	Title: Managing Director


 




    	 	36	 



     


    

 


SCHEDULE 1


 





 



 


FORM OF PLACEMENT NOTICE


 





 



 


	 From:	FuelCell Energy, Inc.
	 	 
	To:	[B. Riley FBR, Inc.][Oppenheimer & Co. Inc.]
	 	 
	Attention:	[•]
	 	 
	Subject:	At Market Issuance – Placement Notice


 


Ladies and Gentlemen:


 


Pursuant to the
terms and subject to the conditions contained in the At Market Issuance Sales Agreement between FuelCell Energy, Inc., a
Delaware corporation (the “Company”), and B. Riley FBR, Inc. (“BRFBR”) and Oppenheimer
& Co. Inc. (“Oppenheimer”; each of BRFBR and Oppenheimer individually an “Agent”
and collectively, the “Agents”), dated June 13, 2018, the Company hereby requests that [identify
Designated Agent] sell up to [___________] of the Company’s Common Stock, par value $0.0001 per share, at a minimum
market price of $[______] per share, during the time period beginning on [month, day, time] and ending on [month, day,
time].


 




    	 	37	 



     


    

 


SCHEDULE 2


 





 



 


Compensation


 





 



 


The Company shall pay
to the Designated Agent in cash, upon each sale of Placement Shares pursuant to this Agreement, an amount equal to 3.0% of the
gross proceeds from each sale of Placement Shares.


 




    	 	38	 



     


    

 


SCHEDULE 3


 





 



 


Notice Parties


 





 



 


	The Company:	 
	 	 
	Michael Bishop	mbishop@fce.com
	 	 
	Daniel Case	dcase@fce.com
	 	 
	Jennifer Arasimowicz	jarasimowicz@fce.com
	 	 
	BRFBR:	 
	 	 
	Matthew Feinberg	mfeinberg@brileyfbr.com  
	 	 
	Ryan Loforte	rloforte@brileyfbr.com 
	 	 
	Patrice McNicoll	pmcnicoll@brileyfbr.com
	 	 
	Keith Pompliano	kpompliano@brileyfbr.com 
	 	 
	with a copy to atmdesk@brileyfbr.com 
	 	 
	Oppenheimer:	 
	 	 
	John Book	john.book@opco.com
	 	 
	Michael Ashe	michael.ashe@opco.com
	 	 
	Tiffani Lau	tiffani.lau@opco.com
		 
	Doug Cameron	douglas.cameron@opco.com
	 	 
	Stephanie Cruz	stephanie.cruz@opco.com 
	 	 
	Doron Barness	doron.barness@opco.com
	 	 
	Matt Weitz	matthew.weitz@opco.com


 


with a copy to ecmexecution@opco.com and
controlroom@opco.com


 




    	 	39	 



     


    

 


SCHEDULE 6(g)


 





 



 


Subsidiaries


 





 






 


	Entity Name	 	State of Incorporation
	FuelCell Energy Finance, LLC	 	Connecticut


 




    	 	40	 



     


    

 


EXHIBIT 7(l)

Form of Representation Date Certificate


___________, 20___


 


This Representation Date Certificate (this
“Certificate”) is executed and delivered in connection with Section 7(l) of the At Market Issuance Sales
Agreement (the “Agreement”), dated June 13, 2018, between FuelCell Energy, Inc., a Delaware corporation
(the “Company”), and B. Riley FBR, Inc. (“BRFBR”) and Oppenheimer & Co. Inc. (“Oppenheimer”;
each of BRFBR and Oppenheimer individually an “Agent” and collectively, the “Agents”). All
capitalized terms used but not defined herein shall have the meanings given to such terms in the Agreement.


 


The Company hereby
certifies as follows:


 


1.          As
of the date of this Certificate, (i) the Registration Statement does not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, (ii)
neither the Registration Statement nor the Prospectus contains any untrue statement of a material fact or omits 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, not misleading, and (iii) no event has occurred as a result of which it is necessary to amend or supplement the
Prospectus in order to make the statements therein not untrue or misleading for this paragraph 1 to be true.


 


2.          Each
of the representations and warranties of the Company contained in the Agreement were, when originally made, and are, as of the
date of this Certificate, true and correct in all material respects.


 


3.          Except
as waived by the Agents in writing, each of the covenants required to be performed by the Company in the Agreement on or prior
to the date of the Agreement, this Representation Date, and each such other date prior to the date hereof as set forth in the Agreement,
has been duly, timely and fully performed in all material respects and each condition required to be complied with by the Company
on or prior to the date of the Agreement, this Representation Date, and each such other date prior to the date hereof as set forth
in the Agreement has been duly, timely and fully complied with in all material respects.


 


4.          Subsequent
to the date of the most recent financial statements in the Prospectus, and except as described in the Prospectus, including the
Incorporated Documents, there has been no Material Adverse Effect.


 


5.          No
stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued, and, to the Company’s
knowledge, no proceedings for that purpose have been instituted or are pending or threatened by any securities or other governmental
authority (including, without limitation, the Commission).


 


6.          No
order suspending the effectiveness of the Registration Statement or the qualification or registration of the Placement Shares under
the securities or Blue Sky laws of any jurisdiction are in effect and no proceeding for such purpose is pending before, or threatened,
to the Company’s knowledge or in writing by, any securities or other governmental authority (including, without limitation,
the Commission).


 




    	 	41	 



     


    

 


The undersigned has
executed this Representation Date Certificate as of the date first written above.


 


	 	FUELCELL ENERGY, INC.
	 	 	 
	 	By:	 
	 	Name:	 
	 	Title:	 


 




     


     


    

 


EXHIBIT 23


 


Permitted Issuer Free Writing Prospectuses


 


None.