Exhibit 10.1


 


AT THE MARKET OFFERING AGREEMENT


 


November 18, 2021


 


H.C. Wainwright & Co., LLC

430 Park Avenue

New York, NY 10022


 


Ladies and
Gentlemen:


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Business
Day” shall mean any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized
or required by law to remain closed; provided, however, that, for purposes of clarity, commercial banks shall not be deemed
to be authorized or required by law to remain closed due to “stay at home”, “shelter-in-place”, “non-essential
employee”  or any other similar orders or restrictions or the closure of any physical branch locations at the direction of
any governmental authority so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in The
City of New York generally are open for use by customers on such day.


 






     


     


    

 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“FINRA”
means the Financial Industry Regulatory Authority.


 






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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 






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


 


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


 


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


 


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


 


“Registration
Statement” shall mean the shelf registration statement (File Number 333-239441) on Form S-3, including exhibits and
financial statements and any prospectus supplement relating to the Shares that is filed with the Commission pursuant to Rule 424(b)
and deemed part of such registration statement pursuant to Rule 430B, as amended on each Effective Date and, in the event any post-effective
amendment thereto becomes effective, shall also mean such registration statement as so amended.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 






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


 


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


 


“Trading
Market” means NYSE American.


 


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


 


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


 






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


 


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


 


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


 


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


 






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


 


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


 


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


 


(vii) Unless
otherwise agreed between the Company and the Manager, settlement for sales of the Shares will occur at 10:00 a.m (New York City time)
on the second (2nd) Trading Day (or such earlier day as is industry practice for regular-way trading) following the date on which such
sales are made (each, a “Settlement Date”). On or before the Trading Day prior to each Settlement Date, the Company
will, or will cause its transfer agent to, electronically transfer the Shares being sold by crediting the Manager’s or its designee’s
account (provided that the Manager shall have given the Company written notice of such designee at least one Trading Day prior to the
Settlement Date) at The Depository Trust Company (“DTC”) through its Deposit and Withdrawal at Custodian System or
by such other means of delivery as may be mutually agreed upon by the parties hereto which Shares in all cases shall be freely tradable,
transferable, registered shares in good deliverable form. On each Settlement Date, the Manager will deliver the related Net Proceeds in
same day funds to an account designated by the Company. The Company agrees that, if the Company, or its transfer agent (if applicable),
defaults in its obligation to deliver duly authorized Shares on a Settlement Date, in addition to and in no way limiting the rights and
obligations set forth in Section 7 hereto, the Company will (i) hold the Manager harmless against any loss, claim, damage, or reasonable,
documented expense (including reasonable and documented legal fees and expenses), as incurred, arising out of or in connection with such
default by the Company, and (ii) pay to the Manager any commission, discount or other compensation to which the Manager would otherwise
have been entitled absent such default.


 






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


 


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


 


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


 


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


 






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(d) Maximum
Number of Shares. Under no circumstances shall the Company cause or request the offer or sale of any Shares pursuant to this Agreement
at a price lower than the minimum price authorized from time to time by the Board, a duly authorized committee thereof or a duly authorized
executive officer, and notified to the Manager in writing. Further, under no circumstances shall the Company cause or permit the aggregate
offering amount of Shares sold pursuant to this Agreement to exceed the Maximum Amount.


 


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


 


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


 


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


 


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


 


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


 






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


 


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


 


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


 






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


 


(h) Registration
Statement. The Company has filed with the Commission the Registration Statement under the Act, which became effective on July 13,
2020 (the “Effective Date”), for the registration under the Act of the Shares. At the time of such filing, the Company
met the requirements of Form S-3 under the Act. The Registration Statement meets the requirements set forth in Rule 415(a)(1)(x) under
the Act and complies with said Rule and the Prospectus Supplement will meet the requirements set forth in Rule 424(b). The Company has
advised the Manager of all further information (financial and other) with respect to the Company required to be set forth therein in the
Registration Statement and Prospectus Supplement. For purposes of clarity, any reference in this Agreement to the Registration Statement,
the Prospectus or the Prospectus Supplement shall be deemed to refer to and include the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 which were filed under the Exchange Act, on or before the date of this Agreement, or the issue date of the Prospectus
or the Prospectus Supplement, as the case may be; and any reference in this Agreement to the terms “amend,” “amendment”
or “supplement” with respect to the Registration Statement, the Prospectus or the Prospectus Supplement shall be deemed to
refer to and include the filing of any document under the Exchange Act after the date of this Agreement, or the issue date of the Prospectus
or the Prospectus Supplement, as the case may be, deemed to be incorporated therein by reference. For purposes of clarity, all references
in this Agreement to financial statements and schedules and other information which is “contained,” “included,”
“described,” “referenced,” “set forth” or “stated” in the Registration Statement, the
Prospectus or the Prospectus Supplement (and all other references of like import) shall be deemed to mean and include all such financial
statements and schedules and other information which is or is deemed to be incorporated by reference in the Registration Statement, the
Prospectus or the Prospectus Supplement, as the case may be. No stop order suspending the effectiveness of the Registration Statement
or the use of the Prospectus or the Prospectus Supplement has been issued, and no proceeding for any such purpose is pending or has been
initiated or, to the Company’s knowledge, is threatened by the Commission. For purposes of this Agreement, “free writing prospectus”
has the meaning set forth in Rule 405 under the Act. The Company will not, without the prior consent of the Manager, prepare, use or refer
to, any free writing prospectus. The Company meets the transaction requirements (i) with respect to the aggregate market value of securities
being sold pursuant to this offering and during the twelve (12) months prior to this offering, as set forth in General Instruction I.B.6
of Form S-3 or (ii) as set forth in General Instruction I.B.1 of Form S-3, as applicable.


 






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


 


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


 






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


 


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


 


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


 






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


 


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


 


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


 


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


 






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


 


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


 


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


 






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


 


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


 






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


 


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


 


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


 


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


 






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


 


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


 


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


 






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(dd) Cybersecurity. 
Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i)(x) there has been
no security breach or other compromise of or relating to any of the Company’s or any Subsidiary’s information technology and
computer systems, networks, hardware, software, data (including the data of its respective customers, employees, suppliers, vendors and
any third party data maintained by or on behalf of it), equipment or technology (collectively, “IT Systems and Data”)
and (y) the Company and the Subsidiaries have not been notified of, and has no knowledge of any event or condition that would reasonably
be expected to result in, any security breach or other compromise to its IT Systems and Data; (ii) the Company and the Subsidiaries are
presently in compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator
or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy and security of IT Systems
and Data and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation or modification; (iii) the
Company and the Subsidiaries have implemented and maintained commercially reasonable safeguards to maintain and protect its material confidential
information and the integrity, continuous operation, redundancy and security of all IT Systems and Data; and (iv) the Company and the
Subsidiaries have implemented backup and disaster recovery technology consistent with industry standards and practices.


 


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


 


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


 






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


 


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


 






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


 


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


 


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


 


(e) [RESERVED]


 


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


 






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


 


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


 


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


 


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


 


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


 






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(l) Bring
Down Opinions; Negative Assurance. At each Representation Date, unless waived by the Manager, the Company shall furnish or cause to
be furnished forthwith to the Manager and to counsel to the Manager a written opinion of counsel to the Company (“Company Counsel”)
addressed to the Manager and dated and delivered on such Representation Date, in form and substance reasonably satisfactory to the Manager,
including a negative assurance representation. In lieu of delivering such an opinion for Representation Dates subsequent to the commencement
of the offering of the Shares under this Agreement, such counsel may furnish the Manager with a letter to the effect that the Manager
may rely on a prior opinion delivered under Section 6(b) or this Section 4(l) to the same extent as if it were dated the date of such
letter (except that statements in such prior opinion shall be deemed to relate to the Registration Statement and the Prospectus as amended
or supplemented as of such subsequent Representation Date). The requirement to furnish or cause to be furnished an opinion (but not with
respect to a negative assurance representation) under this Section 4(l) shall be waived for any Representation Date other than a Representation
Date on which a material amendment to the Registration Statement or Prospectus is made or the Company files its Annual Report on Form
10-K or a material amendment thereto under the Exchange Act, unless the Manager reasonably requests the deliverables required this Section
4(l) in connection with a Representation Date, upon which request such deliverable shall be deliverable hereunder.


 


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


 


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


 


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


 






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


 


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


 


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


 


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


 


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


 






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


 


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


 


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


 


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


 


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


 






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


 


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


 


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


 


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


 


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


 


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


 


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


 






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


 


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


 


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


 


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


 


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


 


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


 






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


 


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


 


7. Indemnification
and Contribution.


 


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


 


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


 






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


 


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


 






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8. Termination.


 


(a) The
Company shall have the right, by giving written notice as hereinafter specified, to terminate the provisions of this Agreement relating
to the solicitation of offers to purchase the Shares in its sole discretion at any time upon five (5) Business Days’ prior written
notice. Any such termination shall be without liability of any party to any other party except that (i) with respect to any pending
sale, through the Manager for the Company, the obligations of the Company, including in respect of compensation of the Manager, shall
remain in full force and effect notwithstanding the termination and (ii) the provisions of Sections 5, 7, 8, 9, 10, 12, the
second sentence of 13 and 14 of this Agreement shall remain in full force and effect notwithstanding such termination.


 


(b) The
Manager shall have the right, by giving written notice as hereinafter specified, to terminate the provisions of this Agreement relating
to the solicitation of offers to purchase the Shares in its sole discretion at any time. Any such termination shall be without liability
of any party to any other party except that the provisions of Sections 5, 7, 8, 9, 10, 12, the second sentence of 13 and 14 of this
Agreement shall remain in full force and effect notwithstanding such termination.


 


(c) This
Agreement shall remain in full force and effect until the date that this Agreement is terminated pursuant to Sections 8(a) or (b) above
or otherwise by mutual agreement of the parties, provided that any such termination by mutual agreement shall in all cases be deemed to
provide that Sections 5, 7, 8, 9, 10, 12, the second sentence of 13 and 14 shall remain in full force and effect.


 


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


 


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


 


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


 






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


 


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


 


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


 


13. Integration.
This Agreement and any Terms Agreement supersede all prior agreements and understandings (whether written or oral) between the Company
and the Manager with respect to the subject matter hereof. Notwithstanding anything herein to the contrary, the letter agreement, dated
August 25, 2021, by and between the Company and the Manager shall continue to be effective and the terms therein shall continue to survive
and be enforceable by the Manager in accordance with its terms, provided that, in the event of a conflict between the terms of the letter
agreement and this Agreement, the terms of this Agreement shall prevail.


 


14. Amendments;
Waivers. No provision of this Agreement may be modified, supplemented or amended except in a written instrument signed by the Company
and the Manager. No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to
be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement
hereof, nor shall any delay or omission of any party to exercise any right hereunder in any manner impair the exercise of any such right.


 


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


 


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


 


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


 


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




 






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


   


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


 


Very truly yours,


 


EMAGIN CORPORATION




 


	By:	/s/ Andrew G. Sculley	 
	Name:	Andrew G. Sculley	 
	Title:	Chief Executive Officer	 



 


Address for Notice:


700 South Drive, Suite #201


Hopewell Junction, New York 12533


Facsimile:


E-mail:


Attention:


 


Copy to:


Goodwin Procter LLP


100 Northern Avenue


Boston, Massachusetts 02210


Attention: Jocelyn M. Arel


E-Mail: JArel@goodwinlaw.com


 


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


 





H.C. WAINWRIGHT & CO., LLC  




 


	By:	/s/ Edward D. Silvera	 
	Name:	Edward D. Silvera	 
	Title:	Chief Operating Officer	 


 





Address for Notice:


430 Park Avenue

New York, New York 10022


E-Mail: notices@hcwco.com

Attention: Chief Executive Officer


 






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Form of Terms Agreement


ANNEX I 


EMAGIN CORPORATION 


TERMS AGREEMENT


 


Dear Sirs:


 


  eMagin
Corporation (the “Company”) proposes, subject to the terms and conditions stated herein and in the At The Market Offering
Agreement, dated November 18, 2021 (the “At The Market Offering Agreement”), between the Company and H.C. Wainwright
& Co., LLC (“Manager”), to issue and sell to Manager the securities specified in the Schedule I hereto
(the “Purchased Shares”).


 


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


 


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


 


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





 









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


 


EMAGIN CORPORATION


 










	By:		 
	 	Name:	 
	 	Title:	 



 


ACCEPTED as of the date first written above.


 


H.C. WAINWRIGHT & CO., LLC  




 


	By:	 	 
	 	Name:	 
	 	Title:	 



 



 


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