Exhibit 10.1


 


July 15, 2020


 


Capstone Turbine Corporation


16640 Stagg Street


Van Nuys, California 91406


Attention: Darren R. Jamison, President
and Chief Executive Officer


 


Dear Mr. Jamison:


 


Reference is made to
the At The Market Offering Agreement, dated as of June 7, 2018 (the “ATM Agreement”), between Capstone Turbine
Corporation (the “Company”) and H.C. Wainwright & Co., LLC (the “Wainwright”). This letter
(the “Amendment”) constitutes an agreement between the Company and Wainwright to amend the ATM Agreement as
set forth herein. Defined terms that are used but not defined herein shall have the meanings ascribed to such terms in the ATM
Agreement.


 


1.               The defined term “Agreement” in the ATM Agreement is amended to mean the ATM Agreement as amended by this Amendment.


 


2.               The
first sentence of Section 2 of the ATM Agreement is hereby amended and restated as follows:


 


“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”).”


 






     


     


    

 


3.              A
new Section 2(b)(ix) of the ATM Agreement is hereby inserted as follows:


 


“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.”


 


4.               Section
8(c) of the ATM Agreement is hereby amended and restated as follows:


 


“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 and 14 shall remain in full force and effect.”


 


5.               The
Company and Wainwright hereby agree that the date of this Amendment shall be a Representation Date under the ATM Agreement and
the Company shall file a Prospectus Supplement with the Commission on the date hereof.


 


6.               Except as expressly set forth herein, all of the terms and conditions of the ATM Agreement shall continue in full force
and effect after the execution of this Amendment and shall not be in any way changed, modified or superseded by the terms set forth
herein.


 


7.              This
Amendment may be executed in two or more counterparts and by facsimile or “.pdf” signature or otherwise, and each
of such counterparts shall be deemed an original and all of such counterparts together shall constitute one and the same agreement.


 


 


[remainder of page
intentionally left blank]


 






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In acknowledgment that
the foregoing correctly sets forth the understanding reached by the Company and Wainwright, please sign in the space provided below,
whereupon this Amendment shall constitute a binding amendment to the ATM Agreement as of the date indicated above.


 


	 	Very truly yours,
	 	 
	 	H.C. WAINWRIGHT & CO., LLC
	 	 
	 	By 	     /s/ Edward D. Silvera
	 	Name: Edward D. Silvera
	 	Title: Chief Operating Officer




 


	Accepted and Agreed:	 
	 	 
	capstone turbine corporation	 
	 	 
	By:	    /s/ Darren R. Jamison	 
	Name: Darren R. Jamison	 
	Title: President and Chief Executive Officer	 




 


[signature
page to CPST Amendment to 


atm
agreement]


 






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