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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
Date of report (Date of earliest event reported):
September 13, 2024
CANOO INC.
(Exact name of registrant as specified in its
charter)
Delaware
(State
or Other Jurisdiction
of Incorporation) |
001-38824
(Commission
File Number) |
83-1476189
(I.R.S. Employer Identification Number) |
19951 Mariner Avenue
Torrance,
California |
90503 |
(Address of principal executive offices) |
(Zip Code) |
(424) 271-2144
(Registrant’s telephone number,
including area code)
N/A
(Former name or former address, if changed since
last report)
Check the appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
|
|
¨ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
|
|
¨ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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¨ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b)
of the Act:
Title of each
class |
|
Trading
symbol(s) |
|
Name of each
exchange
on which registered |
Common Stock, $0.0001 par value per share |
|
GOEV |
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The Nasdaq Capital Market |
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|
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Warrants to purchase shares of Common Stock |
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GOEVW |
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The Nasdaq Capital Market |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405
of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company
¨
If an emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant
to Section 13(a) of the Exchange Act. ¨
Item 1.01 |
Entry into a Material Definitive Agreement. |
At-the-Market Sales Agreement
On September 13, 2024, Canoo Inc. (the “Company”)
entered into an Equity Distribution Agreement (the “Sales Agreement”) with Northland Securities, Inc. (the “Agent”)
to sell shares of the Company’s common stock, par value $0.0001 per share (“Common Stock”), having an aggregate
sales price of up to $200 million (the “Shares”), from time to time, through an “at the market offering”
program under which the Agent will act as the sales agent. The sales, if any, of the Shares made under the Sales Agreement will be made
by any method permitted by law deemed to be an “at the market offering” as defined in Rule 415 promulgated under the
Securities Act of 1933, as amended.
The Shares will be issued pursuant to the Company’s
shelf registration statements on Form S-3 filed by the Company with the Securities and Exchange Commission on May 10, 2022 (File
No. 333-264842) (the “May 2022 Form S-3”) and July 23, 2024 (File No. 333-280962), in each
case including a prospectus, relating to the securities, including the Shares, to be issued from time to time by the Company. The Company
filed a prospectus supplement on September 13, 2024 (the “Prospectus Supplement”) with the U.S. Securities and
Exchange Commission in connection with the offer and sale of the Shares.
The Company’s prior at-the-market offering
pursuant to an Equity Distribution Agreement with Evercore Group L.L.C. and H.C. Wainwright & Co., LLC, dated August 8,
2022, which was previously registered under the May 2022 Form S-3, expired pursuant to its terms on August 8, 2024 and
is no longer in effect after such date.
The Sales Agreement provides that the Agent will
be entitled to compensation for its services in an amount equal to 3.0% of the aggregate gross proceeds from the sales placed by the Agent
thereunder. The Sales Agreement contains customary representations, warranties and agreements by the Company, indemnification obligations
of the Company and the Agent, other obligations of the parties and termination provisions. The Company is not obligated to sell any of
the Shares under the Sales Agreement and may at any time suspend solicitation and offers thereunder. The offering of the Shares pursuant
to the Sales Agreement will terminate on the earlier of (i) the sale, pursuant to the Sales Agreement, of the Shares having an aggregate
sales price of $200 million and (ii) the termination of the Sales Agreement by either the Company or the Agent, as permitted therein.
This Current Report on Form 8-K shall not
constitute an offer to sell or the solicitation of an offer to buy any of the Shares under the Sales Agreement, nor shall there be any
sale of such Shares in any state in which such offer, solicitation or sale would be unlawful prior to registration or qualification under
the securities laws of any such state or jurisdiction.
The foregoing description of the Sales Agreement
does not purport to be complete and is qualified in its entirety by reference to the Sales Agreement, which is filed hereto as Exhibit 10.1
and which is incorporated herein by reference.
Attached to this Current Report on Form 8-K
as Exhibit 5.1, and incorporated by reference to the Prospectus Supplement, is the opinion of Munck Wilson Mandala, LLP relating
to the legality of the Shares.
Yorkville Consent Agreement
As
previously disclosed, (i) on July 20, 2022, the Company entered into a Pre-Paid Advance Agreement (as amended and supplemented
from time to time, the “2022 PPA”) with YA II PN, Ltd., a Cayman Islands exempt limited company (“Yorkville”)
and (ii) on July 19, 2024, the Company entered into a Prepaid Advance Agreement (as amended and supplemented from time to time,
the “July PPA,” and together with the 2022 PPA, the “PPA Agreements”) with Yorkville.
Pursuant to the terms of each of the PPA Agreements, the Company may enter into an “at the market
offering” or other continuous offering or similar offering of Common Stock with a registered broker-dealer, whereby the Company
may sell Common Stock at a future determined price; provided, however, that the Company shall not be permitted to execute transactions
under such agreement unless (i) an Amortization Event (as defined in the PPA Agreements) has occurred and is continuing, or (ii) there
is no balance outstanding under all prior Prepaid Advances (as defined in the PPA Agreements).
On
September 13, 2024, the Company and Yorkville entered into an Omnibus Consent to Pre-Paid Advance Agreements (the “Consent
Agreement”) pursuant to which Yorkville consented to the Company undertaking an at-the-market offering with the Agent
(such offering, the “ATM Offering”) subject to certain conditions
including the following. Pursuant to the Consent Agreement, solely with respect to the first $5 million of gross proceeds
received or receivable by the Company (such proceeds, the “Initial ATM
Proceeds”) pursuant to sales of Common Stock sold under the ATM Offering (such sales up to the Initial ATM Proceeds,
the “Initial ATM Sales”), the Company will retain 100% of the Initial
ATM Proceeds; provided that any further sales under the ATM Offering subsequent to the Initial ATM Sales will require
Yorkville’s prior written consent, which consent by Yorkville to any further sales under the ATM Offering subsequent to the
Initial ATM Sales may be granted at any time by Yorkville to the Company via e-mail correspondence.
The foregoing description of the Consent Agreement
does not purport to be complete and is qualified in its entirety by reference to the Consent Agreement, which is filed hereto as Exhibit 10.2
and which is incorporated herein by reference.
Preliminary Unaudited Estimated Financial Data
for the Three Months Ending September 30, 2024
On a preliminary unaudited basis, the
Company expects to report revenues ranging from $0.1 million to $1.2 million and Adjusted EBITDA of $(30.0) million to $(40.0)
million, in each case for the three months ending September 30, 2024. Adjusted EBITDA is not prepared in accordance with U.S.
Generally Accepted Accounting Principles (“GAAP”) and should not be
relied upon in isolation or as a substitute for financial measures prepared in accordance with GAAP. See “Non-GAAP Financial
Measures” below.
This preliminary estimate is based on
currently available information and does not present all necessary information for an understanding of the Company’s expected
results of operations for the three months ending September 30, 2024. Because the quarter has not yet ended, it is possible
that events or developments that are not yet known to management will result in material changes to this estimated financial data,
including revenue estimates. This preliminary estimate has been prepared by and is the responsibility of management. The
Company’s independent registered public accounting firm, Deloitte & Touche LLP, has not audited, reviewed, compiled
or performed any procedures with respect to this preliminary financial information and, accordingly, Deloitte & Touche LLP
does not express an opinion or any other form of assurance and assumes no responsibility for, and disclaims any association with,
the preliminary third quarter financial information. Because the quarter has not yet ended, the Company has not commenced its
closing procedures yet and it is possible that the Company or its independent registered public accounting firm may identify items
that require adjustments to the preliminary estimated results set forth above and those changes could be material. Accordingly,
undue reliance should not be placed on this preliminary estimate. In addition, the preliminary estimates for the three months ending
September 30, 2024, are not necessarily indicative of the results to be achieved in any future period.
Withdrawal of Certain Previously-Issued Guidance
The Company is withdrawing its previously-issued
revenue guidance for the year ending December 31, 2024. The Company is also withdrawing its previously-issued operational guidance
relating to the manufacturing run rate, production and delivery of vehicles in 2024 and subsequent periods.
Non-GAAP Financial Measures
Adjusted EBITDA
“EBITDA” is defined as net loss before
interest expense, income tax expense or benefit, and depreciation and amortization. “Adjusted EBITDA” is defined as EBITDA
adjusted for stock-based compensation, restructuring charges, asset impairments, non-routine legal fees, and other costs associated with
exit and disposal activities, acquisition and related costs, changes to the fair value of contingent earnout shares liability, changes
to the fair value of warrant and derivative liability, changes to the fair value of the derivative asset, changes to the fair value of
convertible debt, loss on extinguishment of debt, and any other one-time non-recurring transaction amounts impacting the statement of
operations during the year.
Adjusted EBITDA is intended as a supplemental
measure of the Company’s performance that is neither required by, nor presented in accordance with, GAAP. The Company believes Adjusted
EBITDA is beneficial to an investor’s complete understanding of its operating performance. The Company believes that the use of
Adjusted EBITDA provides an additional tool for investors to use in evaluating ongoing operating results and trends and in comparing its
financial measures with those of comparable companies, which may present similar non-GAAP financial measures to investors. However, you
should be aware that when evaluating Adjusted EBITDA, the Company may incur future expenses similar to those excluded when calculating
these measures. In addition, the Company’s presentation of these measures should not be construed as an inference that its future
results will be unaffected by unusual or non-recurring items. The Company’s computation of Adjusted EBITDA may not be comparable
to other similarly titled measures computed by other companies, because all companies may not calculate Adjusted EBITDA in the same fashion.
Because of these limitations, Adjusted EBITDA
should not be considered in isolation or as a substitute for performance measures calculated in accordance with GAAP. The Company manage
its business utilizing Adjusted EBITDA as a supplemental performance measure.
With respect to the Company’s
preliminary expectations for Adjusted EBITDA for the three months ending September 30, 2024, the Company’s
reconciliations of Adjusted EBITDA to the most comparable measure prepared in accordance with GAAP is not available, as the Company
is unable to quantify certain amounts to the degree of precision that would be required in the relevant GAAP measures without
unreasonable effort. These items include changes in warrant and derivative liability, changes to the fair value of contingent
earnout shares liability and the income tax effects of these items and/or other income tax-related events. These items depend on
highly variable factors and any such reconciliations would imply a degree of precision that would be confusing or misleading to
investors.
Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits
The following exhibits are filed herewith:
Exhibit No. |
|
Description |
5.1 |
|
Opinion of Munck Wilson Mandala, LLP |
10.1 |
|
Equity Distribution Agreement, dated September 13, 2024, by and between Canoo Inc. and Northland Securities, Inc. |
10.2 |
|
Omnibus Consent to Pre-Paid Advance Agreements, dated September 13, 2024, by and between Canoo Inc. and YA II PN, Ltd. |
23.1 |
|
Consent of Munck Wilson Mandala, LLP (contained in Exhibit 5.1) |
104 |
|
Cover Page Interactive Data File (embedded within the Inline XBRL document) |
Forward-Looking Statements
This report contains forward-looking statements,
and any statements other than statements of historical fact could be deemed to be forward-looking statements. These forward-looking statements
include, among other things, statements regarding the amount of shares of Common Stock the Company may issue pursuant to the Sales Agreement,
the amount of proceeds to be received by the Company from the sale of shares of common stock and the uses thereof and related matters,
as well as statements relating to the Company’s estimated financial results. These statements are subject to risks and uncertainties,
and actual results may differ materially from these statements. You are cautioned not to place undue reliance on these forward-looking
statements, which speak only as of the date of this report. The Company undertakes no obligation to revise or update any forward-looking
statements to reflect events or circumstances after the date hereof.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Date: September 13, 2024 |
CANOO INC. |
|
|
|
|
By: |
/s/ Hector Ruiz |
|
Name: |
Hector Ruiz |
|
Title: |
General Counsel and Corporate Secretary |
Exhibit 5.1
September 13, 2024
Canoo Inc.
19951 Mariner Avenue
Torrance, California 90503
Ladies and Gentlemen:
We
are acting as special counsel to Canoo Inc., a Delaware corporation (the “Company”), in connection with the registration
by the Company of the offer and sale of shares of its common stock, par value $0.0001 per share (the “Common Stock”),
consisting of shares with an aggregate value of up to $200,000,000.00 (the “Shares”), pursuant to the terms of the
Equity Distribution Agreement dated as of September 13, 2024 by and between Northland Securities, Inc. and the Company
(as the same may be amended or supplemented from time to time, the “Agreement”). The Shares are being offered and sold
pursuant to a registration statement on Form S-3 filed by the Company with the Securities and Exchange Commission (the “Commission”)
on May 10, 2022 (File No. 333-264842) and July 23, 2024 (File No. 333-280962) under the Securities Act of 1933, as
amended (the “Act”) (such registration statement, as so filed and as amended, collectively, the “Registration
Statement”), including a base prospectus dated May 18, 2022 (the “Base Prospectus”). The Base Prospectus,
together with any prospectus supplements filed describing the terms of the offering of Shares in accordance with the Agreement, are referred
to herein as the “Prospectus.”
In that connection, we have
examined originals, or copies certified or otherwise identified to our satisfaction, of such documents, corporate records and other instruments
as we have deemed necessary for the purposes of this opinion, including (i) the corporate and organizational documents of the Company,
including the Second Amended and Restated Certificate of Incorporation of the Company, as amended through the date hereof, and the Amended
and Restated Bylaws of the Company, (ii) resolutions of the Board of Directors of the Company with respect to the issuance and sale
of the Shares, (iii) the Registration Statement and the exhibits thereto, and (iv) the Agreement.
For purposes of this opinion,
we have assumed the authenticity of all documents submitted to us as originals, the conformity to the originals of all documents submitted
to us as copies and the authenticity of the originals of all documents submitted to us as copies. We have also assumed the legal capacity
of all natural persons, the genuineness of the signatures of persons signing all documents in connection with which this opinion is rendered,
the authority of such persons signing on behalf of the parties thereto other than the Company and the due authorization, execution and
delivery of all documents by the parties thereto other than the Company. We relied upon statements and representations of officers and
other representatives of the Company and others as to factual matters.
Based upon and subject to
the foregoing qualifications, assumptions and limitations and the further limitations set forth below, we are of the opinion that the
Shares are duly authorized, and when the Shares are registered by the Company’s transfer agent and delivered against payment of
the agreed consideration therefor, all in accordance with the Agreement, the Shares will be validly issued, fully paid and
non-assessable.
A
Limited Liability Partnership · Dallas
· Austin ·
Houston · Waco
· Los Angeles ·
Boca Raton/Miami ·
Orlando · www.munckwilson.com
Canoo Inc.
September 13, 2024
Page 2
Our
opinion expressed above is subject to the qualifications that we express no opinion as to the applicability of, compliance with, or effect
of any laws except the Delaware General Corporation Law (including the statutory provisions, all applicable provisions of the
Delaware constitution and reported judicial decisions interpreting the foregoing).
We hereby consent to the filing
of this opinion with the Commission as Exhibit 5.1 to the Company’s current report on Form 8-K. We also consent to the
reference to our firm under the heading “Legal Matters” in the Prospectus constituting part of the Registration Statement.
In giving this consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7
of the Act or the rules and regulations of the Commission.
We do not find it necessary
for the purposes of this opinion, and accordingly we do not purport to cover herein, the application of the securities or “Blue
Sky” laws of the various states to the issuance and sale of the Shares.
This opinion is limited to
the specific issues addressed herein, and no opinion may be inferred or implied beyond that expressly stated herein.
This opinion is furnished
to you in connection with the filing of the Prospectus and in accordance with the requirements of Item 601(b)(5) of Regulation S-K
promulgated under the Act, and is not to be used, circulated, quoted or otherwise relied upon for any other purpose.
|
Very truly yours, |
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/s/ Munck Wilson Mandala, LLP |
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|
|
Munck Wilson Mandala, LLP |
Exhibit 10.1
Execution Version
Canoo
Inc.
EQUITY DISTRIBUTION AGREEMENT
September 13, 2024
Northland
Securities, Inc.
150 South Fifth Street, Suite 3300
Minneapolis, MN 55402
Ladies and Gentlemen:
Canoo Inc., a Delaware corporation (collectively
with its subsidiaries and affiliates, including, without limitation, all entities disclosed or described in the Registration Statement
as being subsidiaries or affiliates of Canoo Inc., the “Company”), proposes to issue and sell through Northland Securities, Inc.,
as sales agent (the “Manager”), on the terms set forth in this Equity Distribution Agreement (this “Agreement”),
up to $200,000,000 of shares (the “Shares”) of its common stock, par value $0.0001 (“Common Stock”).
The
Company has filed with the Securities and Exchange Commission (the “Commission”) registration statements on Form S-3
(File No. 333-280962 and 333-264842), in each case including a prospectus, relating to the securities (the “Shelf Securities”),
including the Shares, to be issued from time to time by the Company. The registration statements as of their most recent effective date,
including the information (if any) deemed to be part of the registration statements at the time of effectiveness pursuant to Rule 430A
or Rule 430B under the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated
thereunder (the “Securities Act”), together with any additional registration statement on Form S-3 filed pursuant
to Rule 462(b) under the Securities Act, are hereinafter referred to collectively as the “Registration Statement”,
and the related prospectuses covering the Shelf Securities and filed as part of the Registration Statement, together with any amendments
or supplements thereto as of the most recent effective date of the Registration Statement, are hereinafter referred to collectively as
the “Basic Prospectus”. “Prospectus Supplement” means the final prospectus supplement, relating
to the Shares, filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act on or before the second
business day after the date hereof, in the form furnished by the Company to the Manager in connection with the offering of the Shares,
together with any other final prospectus supplement filed by the Company in connection with the offering of the Shares under another
registration statement on Form S-3 forming part of the Registration Statement. Except where the context otherwise requires, “Prospectus”
means the Basic Prospectuses, as supplemented by the Prospectus Supplement and the most recent Interim Prospectus Supplement (as defined
in Section 6(c) below), if any. For purposes of this Agreement, “free writing prospectus” has the meaning
set forth in Rule 405 under the Securities Act. “Permitted Free Writing Prospectuses” means the documents listed
on Schedule I hereto or otherwise approved in writing by the Manager in accordance with Section 6(b), and “broadly available
road show” means a “bona fide electronic road show” as defined in Rule 433(h)(5) under the Securities
Act that has been made available without restriction to any person. As used herein, the terms “Registration Statement”, “Basic
Prospectus”, “Prospectus Supplement”, “Interim Prospectus Supplement” and “Prospectus” shall
include the documents, if any, incorporated by reference therein. The terms “supplement”, “amendment”
and “amend” as used herein with respect to the Registration Statement, the Basic Prospectus, the Prospectus Supplement,
any Interim Prospectus Supplement or the Prospectus shall include all documents subsequently filed by the Company with the Commission
pursuant to the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder
(the “Exchange Act”), that are deemed to be incorporated by reference therein (the “Incorporated Documents”).
All references in this Agreement to the Registration Statement, the Basic Prospectus, the Prospectus Supplement, any Interim Prospectus
Supplement, the Prospectus or any amendments or supplements to any of the foregoing, shall include any copy thereof filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval System (“EDGAR”).
1. Representations
and Warranties. The Company represents and warrants to and agrees with the Manager that:
(a) Registration
Statement. The Company meets the requirements for use of Form S-3 under the Securities Act. The Registration Statement has become
effective. No post-effective amendment to the Registration Statement has been filed; no stop order suspending the effectiveness of the
Registration Statement has been issued under the Securities Act and no proceedings for that purpose or pursuant to Section 8A of
the Securities Act have been instituted or are pending or, to the knowledge of the Company, are contemplated by the Commission, and any
request on the part of the Commission for additional information has been complied with.
(b) Compliance
with Registration Requirements. (i) (A) At the respective times the Registration Statement and each amendment thereto
became effective, (B) at each deemed effective date with respect to the Manager pursuant to Rule 430B(f)(2) under the
Securities Act (each, a “Deemed Effective Time”), (C) as of each time Shares are sold pursuant to this Agreement
(each, a “Time of Sale”), (D) at each Settlement Date (as defined in Section 4 below) and (E) at all
times during which a prospectus is required by the Securities Act to be delivered (whether physically or through compliance with Rule 172
under the Securities Act or any similar rule) in connection with any sale of Shares (the “Delivery Period”), the Registration
Statement complied and will comply in all material respects with the requirements of the Securities Act; (ii) the Basic Prospectus
complied at the time it was filed with the Commission, complies as of the date hereof and, as of each Time of Sale and at all times during
the Delivery Period, will comply in all material respects with the rules and regulations under the Securities Act; (iii) each
of the Prospectus Supplement, any Interim Prospectus Supplement and the Prospectus will comply, as of the date that such document is
filed with the Commission, as of each Time of Sale, as of each Settlement Date and at all times during the Delivery Period, in all material
respects with the rules and regulations under the Securities Act; and (iv) the Incorporated Documents, when they were filed
with the Commission, conformed in all material respects to the requirements of the Exchange Act, and any further Incorporated Documents
so filed and incorporated by reference, when they are filed with the Commission, will conform in all material respects to the requirements
of the Exchange Act.
(c) General
Disclosure Package. (i) As of the date hereof, at the respective times that the Registration Statement and each amendment
thereto became effective and at each Deemed Effective Time, the Registration Statement did not and will not contain an untrue statement
of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(ii) as of each Time of Sale, the Prospectus (as amended and supplemented at such Time of Sale) and any Permitted Free Writing Prospectus
then in use, considered together (collectively, the “General Disclosure Package”), did not contain and will not contain
any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; (iii) as of its date, the Prospectus did not contain an untrue
statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and (iv) at any Settlement Date, the Prospectus (as amended and supplemented
at such Settlement Date) did not and will not contain an untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any statement or omission made in reliance upon and in conformity
with information furnished in writing to the Company by the Manager expressly for use in the Prospectus or in the General Disclosure
Package.
(d) Issuer
Free Writing Prospectus. Any free writing prospectus that the Company was or is required to file pursuant to Rule 433(d) under
the Securities Act has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act and the
applicable rules and regulations thereunder. Each free writing prospectus that the Company has filed, or is required to file, pursuant
to Rule 433(d) under the Securities Act or that was prepared by or on behalf of or used or referred to by the Company complies
or will comply in all material respects with the requirements of the Securities Act and the applicable rules and regulations thereunder.
Each free writing prospectus, as of its issue date and at all subsequent times through the completion of the public offer and sale of
the Shares or until any earlier date that the Company notified or notifies the Manager, did not, does not and will not include any material
information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus;
provided, however, that this representation and warranty shall not apply to any statement or omission made in reliance
upon and in conformity with information furnished in writing to the Company by the Manager expressly for use in a free writing prospectus,
the Registration Statement or the Prospectus. Each broadly available road show, if any, when considered together with the General Disclosure
Package, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading; provided, however, that this representation
and warranty shall not apply to any statement or omission made in reliance upon and in conformity with information furnished in writing
to the Company by the Manager expressly for use in a broadly available road show and the General Disclosure Package. Except for the Permitted
Free Writing Prospectuses, if any, and electronic road shows, if any, furnished to and approved by the Manager in accordance with Section 6(b),
the Company has not prepared, used or referred to, and will not, prepare, use or refer to, any free writing prospectus.
(e) Incorporated
Documents. The Incorporated Documents, when they were filed with the Commission, conformed in all material respects to the requirements
of the Exchange Act, and none of such documents contained any untrue statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and any
further documents so filed and incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus,
when such documents are filed with the Commission, will conform in all material respects to the requirements of the Exchange Act and
will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
(f) Financial
Statements. The financial statements of the Company filed with the Commission and included or incorporated by reference in the Registration
Statement, the General Disclosure Package or the Prospectus, present fairly in all material respects the financial condition of the Company
as of and at the dates indicated, and each of the statements of operations, cash flows and stockholders’ equity of the Company
for the periods specified; such financial statements have been prepared in conformity with generally accepted accounting principles
in the United States of America (“GAAP”) applied on a consistent basis throughout the periods involved except to the
extent disclosed in the notes thereto. There are no financial statements (historical or pro forma) that are required to be included or
incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus that are not included or incorporated
by reference as required. All non-GAAP financial measures (as defined in Regulation G promulgated by the Commission pursuant to
the Exchange Act) and ratios derived using non-GAAP financial measures included or incorporated by reference in the Registration Statement,
the General Disclosure Package or the Prospectus have been presented in compliance with Item 10 of Regulation S-K. Except as disclosed
in the General Disclosure Package or the Prospectus, the Company is not party to any off-balance sheet transactions, arrangements, obligations
(including contingent obligations) or other persons that may have a material current or future effect on the Company’s financial
condition, changes in financial condition, results of operations, liquidity, capital expenditures, capital resources or significant components
of revenues or expenses. The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the
Registration Statement, the General Disclosure Package or the Prospectus fairly presents the information called for in all material respects
and has been prepared in all material respects in accordance with the Commission’s rules and guidelines applicable thereto.
(g) No
Material Adverse Effect. Except as otherwise set forth in the Registration Statement, the General Disclosure Package or the Prospectus,
since the date of the latest audited financial statements included in the General Disclosure Package, there has been no (i) material
adverse change, or any development involving a prospective material adverse change, in or affecting the condition, financial or otherwise,
or in the assets, earnings, business, properties, management, results of operations or prospects of the Company, whether or not arising
in the ordinary course of business or as a result of the ongoing COVID-19 pandemic, or the ability of the Company to perform its obligations
under this Agreement, individually or in the aggregate (a “Material Adverse Effect”); (ii) transaction which
is material to the Company; (iii) liability or obligation, direct or contingent (including without limitation any off-balance
sheet obligations or any losses or interference with business from fire, explosion, flood, earthquakes, accident or other calamity,
whether or not covered by insurance, or from any strike, labor dispute or court or governmental action, order or decree), incurred by
the Company, which is material to the Company, individually or in the aggregate; (iv) change in the capital stock of the Company
(other than as described in the Registration Statement, the Certificate of Designation for the Company’s Series C Cumulative
Perpetual Redeemable Preferred Stock filed May 3, 2024, or the issuance or retention of shares of Common Stock upon the exercise
of stock options or the vesting, exercise or settlement of other awards described as outstanding in, and the grant of options and awards
under other existing equity incentive plans described in, the Registration Statement, the General Disclosure Package or the Prospectus);
(v) material change in the outstanding indebtedness of the Company; (vi) dividend or distribution of any kind declared,
paid or made on the Common Stock; or (vii) alteration in the Company’s method of accounting.
(h) Organization
and Good Standing. The Company and each of the Subsidiaries (as defined below) have been duly incorporated or organized and is validly
existing as a corporation, limited liability company or limited company in good standing under the laws of the respective jurisdiction
of its incorporation or organization with power and authority (corporate and other) to own, lease and operate its properties and conduct
its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and currently conducted and
to enter into and perform its obligations under this Agreement, and has been duly qualified as a foreign corporation for the transaction
of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business
so as to require such qualification, except where the failure so to qualify or be in good standing would not have a Material Adverse
Effect.
(i) Capitalization.
The Company has an authorized capitalization as set forth in the Registration Statement, the General Disclosure Package and the Prospectus,
and all of the issued and outstanding shares of Common Stock of the Company have been duly and validly authorized and issued, including
in compliance with all federal and state securities laws, are fully paid and non-assessable and conform to the descriptions thereof contained
in the Registration Statement, the General Disclosure Package and the Prospectus; and none of the issued and outstanding shares of capital
stock of the Company are subject to any preemptive or similar rights.
(j) The
Shares. The Shares have been, and as of each Settlement Date will be, duly authorized, and when issued and delivered in accordance
with the terms of this Agreement against payment therefor in accordance with the terms hereof, will be validly issued, including in compliance
with all federal and state securities laws, fully paid and non-assessable, will conform to the descriptions thereof contained in the
Registration Statement, the General Disclosure Package and the Prospectus and the issuance of such Shares will not be subject to any
preemptive or similar rights.
(k) Stock
Exchange Listing. The Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange Act and is listed
on the Nasdaq Capital Market (the “Exchange”), and the Company has taken no action designed to, or likely to have
the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from the Exchange
nor has the Company received any notification that the Commission or the Exchange is contemplating terminating such registration or listing.
To the Company’s knowledge, it has complied in all material respects with the applicable requirements of the Exchange for maintenance
of inclusion of the Common Stock on the Exchange.
(l) Equity
Distribution Agreement. This Agreement has been duly authorized, executed and delivered by the Company.
(m) No
Preemptive Rights. Except as described in the Registration Statement, the General Disclosure Package or the Prospectus, there are
no options, warrants, preemptive rights, rights of first refusal or other rights to subscribe for or to purchase any equity securities
of the Company.
(n) Descriptions
and Exhibits. There are no statutes, regulations, documents or contracts of a character required to be described in the Registration
Statement, the General Disclosure Package or the Prospectus or to be filed as an exhibit to the Registration Statement which are not
described or filed as required.
(o) Non-Contravention.
The issue and sale of the Shares to be sold by the Company hereunder, the execution of this Agreement by the Company and the
compliance by the Company with all of the provisions of this Agreement and the consummation of the transactions herein contemplated
(i) except for the Pre-Paid Advance Agreement, dated July 20, 2022, by and between the Company and YA II PN, Ltd. and the
Prepaid Advance Agreement, dated July 19, 2024, by and between the Company and YA II PN, Ltd. (each as amended and supplemented from time to time, collectively, the
“Yorkville Agreements”), will not conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or any other evidence of
indebtedness or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of
the property or assets of the Company are subject; (ii) will not result in any violation of the provisions of the certificate
or articles of incorporation or by-laws (or other organization documents) of the Company; and (iii) will not result in any
violation of any statute or any order, decree, rule or regulation of any court or governmental or administrative agency or body
having jurisdiction over the Company or any of its properties, except, in the case of clauses (i) and (iii) above, where
such breaches, violations or defaults would not, individually or in the aggregate, have a Material Adverse Effect.
(p) No
Violations. Neither the Company nor its Subsidiaries is (i) in violation of its articles or certificate of incorporation, by-laws
(or other organizational or charter documents), (ii) in violation of any law, ordinance, administrative or governmental rule or
regulation applicable to the Company or the Subsidiary, (iii) in violation of any decree of any court or governmental agency or
body having jurisdiction over the Company or the Subsidiary, or (iv) in default in the performance of any obligation, agreement
or condition contained in any bond, debenture, note or any other evidence of indebtedness or in any agreement, indenture, lease or other
instrument to which the Company or a Subsidiary is a party or by which it or any of its properties may be bound, except, in the case
of clauses (ii), (iii) and (iv), where any such violation or default, individually or in the aggregate, would not have a Material
Adverse Effect.
(q) No
Outstanding Loans or Other Extensions of Credit. The Company does not have any outstanding extension of credit, in the form of a
personal loan, to or for any director or executive officer (or equivalent thereof) of the Company except for such extensions of credit
as are expressly permitted by Section 13(k) of the Exchange Act.
(r) Other
Underwriting Agreements. Except for this Agreement, the Company is not a party to any agreement with an agent or underwriter for
any other “at the market” or continuous equity transaction.
(s) No
Consents Required. No consent, approval, authorization, order, license, registration or qualification of or with any court or arbitrator
or governmental or regulatory authority is required for the execution, delivery and performance by the Company of this Agreement, the
issuance and sale of the Shares and the consummation of the transactions contemplated by this Agreement, except for the registration
of the Shares under the Securities Act and such consents, approvals, authorizations, orders and registrations or qualifications as may
be required under applicable state securities laws in connection with the purchase and distribution of the Shares by the Manager.
(t) FINRA
Exemption. To enable the Manager to rely upon Rule 5110(h)(1)(C) of the Financial Industry Regulatory Authority (“FINRA”),
the Company represents that it is an “experienced issuer” as defined in FINRA Rule 5110(j)(6).
(u) Legal
Proceedings. Other than as set forth in the Registration Statement, the General Disclosure Package or the Prospectus, there are no
actions, suits, proceedings, inquiries or investigations brought by or before any legal or governmental entity pending to which the Company
is a party or of which any property of the Company is the subject which, if determined adversely to the Company, individually or in the
aggregate, would have or may reasonably be expected to have a Material Adverse Effect, or would prevent or impair the consummation of
the transactions contemplated by this Agreement, or which are required to be described in the Registration Statement, the General Disclosure
Package or the Prospectus; and, to the best of the Company’s knowledge, no such actions, suits, proceedings, inquiries or investigations
are threatened or contemplated by governmental authorities or others.
(v) Independent
Accountant. Deloitte & Touche LLP (“Company Auditor”), who has certified certain financial statements
of the Company, was, at all applicable times, an independent registered public accounting firm with respect to the Company within the
applicable rules and regulations adopted by the Commission and the Public Company Accounting Oversight Board and as required by
the Securities Act.
(w) Title
to Real and Personal Property. Except (a) as otherwise set forth in the Registration Statement, the General Disclosure Package
or the Prospectus, (b) for liens, security interests and similar encumbrances under any liens, security interests or similar encumbrances
made pursuant to credit facilities or indentures of the Company or (c) as would not have a Material Adverse Effect, individually
or in the aggregate, the Company has good and marketable title to all of the real and personal properties and assets reflected as owned
in the financial statements referred to in Section 1(f) or elsewhere in the Registration Statement, the General Disclosure
Package or the Prospectus, in each case free and clear of any security interests, mortgages, liens, pledges, charges, encumbrances, equities,
adverse claims and other defects or restrictions. No real property owned, leased, licensed, or used by the Company lies in an area which
is, or will be, subject to restrictions which would prohibit, and no statements of facts relating to the actions or inaction of another
person or entity or his or its ownership, leasing, licensing, or use of any real or personal property exists or will exist which would
prevent, the continued effective ownership, leasing, licensing, exploration, development or production or use of such real property in
the business of the Company as presently conducted or as the Registration Statement, the General Disclosure Package or the Prospectus
indicates the Company contemplates conducting, except as may be properly described in the Registration Statement, the General Disclosure
Package or the Prospectus or such as in the aggregate do not now cause and will not in the future cause a Material Adverse Effect. The
real property, improvements, equipment and personal property held under lease by the Company or of a Subsidiary are held under valid
and enforceable leases, with such exceptions as would not, individually or in the aggregate, have a Material Adverse Effect.
(x) Title
to Intellectual Property. Except as otherwise disclosed in the Registration Statement, the General Disclosure Package, or
the Prospectus, the Company, including its Subsidiaries, own, or have obtained valid and enforceable licenses for, the inventions, patent
applications, patents, trademarks, trade names, service names, copyrights, trade secrets and other intellectual property described in
the Registration Statement, the General Disclosure Package, or the Prospectus as being owned or licensed by them or which are necessary
for the conduct of the Company’s and its Subsidiaries’ businesses as currently conducted or as currently proposed to be conducted
(collectively, “Intellectual Property”), except as would not have a Material Adverse Effect on the Company and its
Subsidiaries taken as a whole, and except as enforceability of any licenses may be limited by bankruptcy and other similar laws affecting
the rights of creditors generally and general principles of equity. To the Company’s knowledge, the conduct of the Company’s
and its Subsidiaries’ businesses does not and will not infringe, misappropriate or otherwise conflict in any material respect with
any intellectual property rights of others. Except as disclosed to Manager, to the Company’s knowledge: (i) there are no third
parties who have rights to any registered Intellectual Property, other than any co-owner of any patent constituting Intellectual Property
who is listed on the records of the U.S. Patent and Trademark Office and any co-owner of any patent application constituting Intellectual
Property who is named in such patent application; and (ii) there is no infringement by third parties of any Intellectual Property.
There is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others: (A) challenging
the Company’s rights in or to any Intellectual Property, and the Company is unaware of any facts which would form a reasonable
basis for any such action, suit, proceeding or claim; (B) challenging the validity, enforceability or scope of any Intellectual
Property, and the Company is unaware of any facts that would form a reasonable basis for any such action, suit, proceeding or claim;
or (C) asserting that the Company or any of its Subsidiaries infringes or otherwise violates, or would, upon the expansion or commercialization
of any product or service described in the Registration Statement, the General Disclosure Package, or the Prospectus as under development,
infringe or violate, any patent, trademark, trade name, service name, copyright, trade secret or other proprietary rights of others,
and the Company is unaware of any facts which would form a reasonable basis for any such action, suit, proceeding or claim. To the Company’s
knowledge, the Company and its Subsidiaries have complied with the material terms of each agreement pursuant to which Intellectual Property
has been licensed to the Company or any Subsidiary, and all such agreements are in full force and effect. To the Company’s knowledge,
there are no material defects in any of the patents or patent applications included in the Intellectual Property. The Company and its
Subsidiaries have taken commercially reasonable steps to protect, maintain and safeguard their Intellectual Property, including the execution
of nondisclosure and confidentiality agreements. The Intellectual Property and/or their uses described in the Registration Statement,
the General Disclosure Package, or the Prospectus as under development by the Company or any Subsidiary fall within the scope of the
claims of one or more patents owned by, or exclusively licensed to, the Company or any Subsidiary.
(y) No
Undisclosed Relationships. No relationship, direct or indirect, exists between or among the Company, on the one hand, and the directors,
officers, stockholders, customers or suppliers of the Company, on the other hand, that is required to be described, incorporated by reference
or included in the Registration Statement, the General Disclosure Package or the Prospectus and which is not so described, incorporated
or included.
(z) Subsidiaries.
All of the direct and indirect Subsidiaries of the Company that are required to be disclosed in the Company’s periodic reports
are set forth in the reports filed with the Commission pursuant to Section 13(a), 13(e), 14 or 15(d) of the Exchange Act and,
except for Canoo Technologies UK Limited, all are set forth on Exhibit 21 to the Company’s most recent annual report on Form 10-K.
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. “Subsidiary” means any material
subsidiary of Canoo Inc. and shall, where applicable, also include any direct or indirect subsidiary of Canoo Inc. formed or acquired
after the date hereof.
(aa) Dividend
Restrictions. Except as disclosed in the Registration Statement, General Disclosure Package, or Prospectus, and subject to the existence
of legally available funds, no Subsidiary of the Company is currently prohibited or restricted, directly or indirectly, from paying dividends
to the Company, or from making any other distribution with respect to such Subsidiary’s equity securities or from repaying to the
Company or any other Subsidiary of the Company any amounts that may from time to time become due under any loans or advances to such
Subsidiary from the Company or from transferring any property or assets to the Company or to any other Subsidiary.
(bb) Investment
Company Act. The Company is not and, after giving effect to the offering and sale of the Shares as contemplated herein and the application
of the Net Proceeds (as defined in Section 3 below) therefrom as described in the General Disclosure Package and the Prospectus,
will not be required to register as an “investment company”, as such term is defined in the Investment Company Act of 1940,
as amended.
(cc) Taxes.
All United States federal income tax returns of the Company required by law to be filed have been filed and all taxes shown by such returns
or otherwise assessed, which are due and payable, have been paid, except for such taxes, if any, as are being or will be contested in
good faith and as to which adequate reserves have been provided. The Company has filed all other tax returns that are required to have
been filed by it pursuant to applicable foreign, state, local or other law, except insofar as the failure to file such returns, individually
or in the aggregate, would not result in a Material Adverse Effect; and the Company has paid all taxes due pursuant to such returns or
pursuant to any assessment received by the Company except for such taxes, if any, as are being or will be contested in good faith and
as to which adequate reserves have been provided or insofar as the non-payment of such taxes, individually or in the aggregate, would
not result in a Material Adverse Effect.
(dd) Licenses
and Permits. The Company possesses all permits, licenses, approvals, consents and other authorizations (collectively, “Permits”)
issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct the businesses now operated
by it; the Company is in compliance with the terms and conditions of all such Permits and all of the Permits are valid and in full force
and effect, except, in each case, where the failure so to possess or comply with or where the invalidity of such Permits or the failure
of such Permits to be in full force and effect, individually or in the aggregate, would not have a Material Adverse Effect; and the Company
has not received any notice of proceedings relating to the revocation or material modification of any such Permits.
(ee) No
Labor Disputes. Except as disclosed in the Registration Statement, the General Disclosure Package or the Prospectus, no material
labor dispute with the employees of the Company exists, or, to the knowledge of the Company, is imminent or threatened. The Company is
not aware of any existing or imminent labor disturbance by the employees of any of its principal suppliers, manufacturers, customers
or contractors, which, individually or in the aggregate, may reasonably be expected to result in a Material Adverse Effect.
(ff) Compliance
with and Liability under Environmental Laws. Except as described in the Registration Statement, the General Disclosure Package or
the Prospectus, there has been no storage, disposal, generation, manufacture, refinement, transportation, handling or treatment of hazardous
substances or hazardous wastes by the Company (or, to the knowledge of the Company, any of its predecessors in interest), at, upon or
from any of the property now or previously owned, leased or operated by the Company in violation of any applicable law, ordinance, rule,
regulation, order, judgment, decree or permit that would require the Company to undertake any remedial action under any applicable law,
ordinance, rule, regulation, order, judgment, decree or permit, except for any violation or remedial action that would not, individually
or in the aggregate with all such violations and remedial actions, cause a Material Adverse Effect. Except for abandonment and similar
costs incurred or to be incurred in the ordinary course of business of the Company, there has been no material spill, discharge, leak,
emission, injection, escape, dumping or release of any kind onto any property now or previously owned, leased or operated by the Company
or into the environment surrounding such property of any hazardous substances or hazardous wastes due to or caused by the Company (or,
to the knowledge of the Company, any of its predecessors in interest), except for any such spill, discharge, leak, emission, injection,
escape, dumping or release that would not, singularly or in the aggregate with all such spills, discharges, leaks, emissions, injections,
escapes, dumpings and releases, result in a Material Adverse Effect; and the terms “hazardous substances,” and
“hazardous wastes” shall be construed broadly to include such terms and similar terms, all of which shall have the
meanings specified in any applicable local, state and federal laws or regulations with respect to environmental protection. Except as
set forth in the Registration Statement, the General Disclosure Package or the Prospectus, the Company has not been named as a “potentially
responsible party” under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended.
(gg) Compliance
with ERISA. Each employee benefit plan, within the meaning of Section 3(3) of the Employee Retirement Income Security Act
of 1974, as amended (“ERISA”), (whether or not subject to ERISA) that is sponsored, maintained, administered, contributed
or required to be contributed to by the Company or any entity that would be treated as a single employer with any of the foregoing pursuant
to Section 414 of the Internal Revenue Code of 1986, as amended (the “Code”) (each such plan, a “Plan”)
has been maintained, administered and operated in compliance with its terms and the requirements of any applicable statutes, orders,
rules and regulations, including but not limited to ERISA and the Code, except to the extent that failure to so comply, individually
or in the aggregate, would not have a Material Adverse Effect. The fair market value of the assets of each Plan (excluding for
these purposes accrued but unpaid contributions) exceeds the present value of all benefits accrued under such Plan determined using reasonable
actuarial assumptions. No other event set forth in Section 4043(b) of ERISA (excluding events with respect to which the 30-day
notice requirement under Section 4043 of ERISA has been waived) has occurred with respect to any Plan. No prohibited transaction,
within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any Plan, excluding transactions
effected pursuant to a statutory or administrative exemption that has resulted in or could reasonably be expected to have a Material
Adverse Effect. The Company could not reasonably be expected to have any liability (whether actual, contingent or otherwise) (i) with
respect to any Plan subject to Section 412 of the Code or to Title IV of ERISA or (ii) with respect to any Plan or other contract,
agreement, arrangement or policy that provides for retiree or post-employment welfare benefits other than as required by Section 4980B
of the Code or similar state laws.
(hh) Disclosure
Controls. The Company has established and maintains disclosure controls and procedures (as defined in Rules 13a-15(e) and
15d-15(e) under the Exchange Act) which (i) are designed to ensure that material information relating to the Company is made
known to the Company’s principal executive officer and its principal financial officer by others within the Company, particularly
during the periods in which the periodic reports required under the Exchange Act are being prepared; (ii) have been evaluated for
effectiveness as of a date within 90 days prior to the earlier of the date that the Company filed its most recent annual or quarterly
report with the Commission and the date of the General Disclosure Package; and (iii) are designed to be effective in all material
respects to perform the functions for which they were established. Except as described in the Registration Statement, the General Disclosure
Package or the Prospectus, since the date of the latest audited financial statements included in or incorporated by reference into the
Registration Statement, the General Disclosure Package or the Prospectus, the Company has not been advised of any (i) significant
deficiencies or material weaknesses in the design or operation of its disclosure controls and procedures or (ii) any fraud, whether
or not material, that involves management or other employees who have a significant role in the Company’s disclosure controls and
procedures.
(ii) Internal
Controls Over Financial Reporting. The Company maintains 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 as applied in the United States and to
maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific
authorizations; (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences; and (v) the interactive data in eXtensible Business Reporting
Language included or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus fairly
presents the information called for in all material respects and has been prepared in all material respects in accordance with the Commission’s
rules and guidelines applicable thereto. The Company’s system of “internal control over financial reporting” (as
defined in Rule 13a-15(f) of the Exchange Act) complies with the requirements of the Exchange Act and has been designed by,
or under the supervision of, its principal executive and principal financial officers, or persons performing similar functions, to provide
reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes
in accordance with GAAP. Except as described in the Registration Statement, the General Disclosure Package or the Prospectus, since the
date of the latest audited financial statements included in or incorporated by reference into the Registration Statement, the General
Disclosure Package or the Prospectus, (a) the Company has not been advised of (1) any significant deficiencies in the design
or operation of internal controls over financial reporting that are reasonably likely to materially affect the ability of the Company
to record, process, summarize and report financial information or data, or any material weaknesses in internal controls over financial
reporting and (2) any fraud, whether or not material, that involves management or other employees who have a significant role in
the internal controls over financial reporting of the Company, and (b) since that date, there has been no change in the Company’s
internal controls over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s
internal controls over financial reporting.
(jj) Open
Source Software. (i) the Company uses and has used any and all software and other materials distributed under a “free,”
“open source,” or similar licensing model (including but not limited to the MIT License, Apache License, GNU General Public
License, GNU Lesser General Public License and GNU Affero General Public License) (“Open Source Software”) in compliance
with all license terms applicable to such Open Source Software, except as would not, individually or in the aggregate, reasonably be
expected to result in a Material Adverse Effect; and (ii) the Company has not used or distributed and does not use or distribute
any Open Source Software in any manner that requires or has required (A) the Company to permit reverse engineering of any software
code or other technology owned by the Company or (B) any software code or other technology owned by the Company to be (1) disclosed
or distributed in source code form, (2) licensed for the purpose of making derivative works or (3) redistributed at no charge.
(kk) Data
Security. (i) The Company has complied and is presently in compliance with all internal and external privacy policies, contractual
obligations, industry standards, applicable laws, statutes, judgments, orders, rules and regulations of any court or arbitrator
or other governmental or regulatory authority and any other legal obligations, in each case, relating to the collection, use, transfer,
import, export, storage, protection, disposal and disclosure by the Company of personal, personally identifiable, household, sensitive,
confidential or regulated data (“Data Security Obligations”, and such data, “Data”); (ii) the
Company has not received any notification of or complaint regarding and is unaware of any other facts that, individually or in the aggregate,
would reasonably indicate non-compliance with any Data Security Obligation; and (iii) there is no action, suit or proceeding by
or before any court or governmental agency, authority or body pending or threatened alleging non-compliance with any Data Security Obligation
nor are there any incidents under internal review or investigations relating to the same.
(ll) Data
Protection; No Breaches. The Company’s information technology assets and equipment, computers, systems, networks, hardware,
software, websites, applications, and databases are adequate for, and operate and perform in all material respects as required in connection
with, the operation of the business of the Company as currently conducted, free and clear of all material bugs, errors, defects, Trojan
horses, time bombs, malware and other corruptants. The Company has taken all technical and organizational measures necessary to protect
the information technology systems and Data used in connection with the operation of the Company’s business. Without limiting the
foregoing, the Company has used reasonable efforts to establish and maintain, and has established, maintained, implemented and complied
with, reasonable information technology, information security, cyber security and data protection controls, policies and procedures,
including oversight, access controls, encryption, technological and physical safeguards and business continuity/disaster recovery and
security plans that are designed to protect against and prevent breach, destruction, loss, unauthorized distribution, use, access, disablement,
misappropriation or modification, or other compromise or misuse of or relating to any information technology system or Data used in connection
with the operation of the Company’s business (“Breach”). There has been no such Breach, and the Company has
not been notified of and has no knowledge of any event or condition that would reasonably be expected to result in, any such Breach.
(mm) Insurance.
The Company is 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 is engaged; the Company has not been refused any insurance coverage sought or applied
for; and the Company has no 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 at a cost that would not have
a Material Adverse Effect on the Company.
(nn) No
Broker’s Fees. The Company is not a party to any contract, agreement or understanding with any person that would give rise
to a valid claim against the Company or the Manager for a brokerage commission, finder’s fee or like payment in connection with
the offering and sale of the Shares other than this Agreement.
(oo) No
Registration Rights. Except as disclosed in the Registration Statement, the General Disclosure Package or the Prospectus and as have
been validly complied with or waived, there are no persons with registration rights or other similar rights to have any securities of
the Company registered pursuant to the Registration Statement or sold in the offering contemplated by this Agreement.
(pp) No
Stabilization. The Company has not taken, directly or indirectly, any action designed to or that would be reasonably expected to
cause or result in stabilization or manipulation of the price of the Common Stock or any other “reference security” (as defined
in Rule 100 of Regulation M under the Exchange Act (“Regulation M”)) whether to facilitate the sale or resale
of the Shares or otherwise, and has taken no action which would directly or indirectly violate Regulation M. The Company acknowledges
that the Manager may engage in passive market making transactions in the Shares on the Exchange in accordance with Regulation
M.
(qq) [Intentionally
Omitted].
(rr) Forward-Looking
Statements. Each “forward-looking statement” (within the meaning of Section 27A of the Securities Act or Section 21E
of the Exchange Act) contained in the Registration Statement, the General Disclosure Package or the Prospectus has been made or reaffirmed
with a reasonable basis and in good faith.
(ss) Statistical
and Market Data. The statistical and market and industry-related data included in the Registration Statement, the General Disclosure
Package and the Prospectus are based on or derived from sources which the Company believes to be reliable and accurate or represent the
Company’s good faith estimates that are made on the basis of data derived from such sources, and the Company has obtained the written
consent to the use of such data from sources to the extent required.
(tt) Sarbanes-Oxley
Act. There is and has been no failure on the part of the Company or, to the knowledge of the Company after reasonable inquiry, any
of the Company’s directors or officers, in their capacities as such, to comply in all material respects with any provision of the
Sarbanes-Oxley Act of 2002, as amended, and the rules and regulations promulgated in connection therewith, including Section 402
related to loans and Sections 302 and 906 related to certifications.
(uu) Ineligible
Issuer. (i) At the earliest time after the filing of the Registration Statement that the Company or another offering
participant made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Shares and (ii) as of the Time of Sale and
on each such time this representation is repeated or deemed to be made (with such date being used as the determination date for purposes
of this clause (ii)), the Company was not and is not an Ineligible Issuer (as defined in Rule 405 under the Securities Act), without
taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Company be considered
an Ineligible Issuer.
(vv) No
Unlawful Payments. Neither the Company nor any director, officer or employee of the Company nor, to the knowledge of the Company,
any agent, affiliate, representative or other person associated with or acting on behalf of the Company has (i) used any corporate
funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made
or taken an act in furtherance of an offer, payment, promise to pay or authorization or approval of any unlawful payment or benefit,
giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any foreign or domestic government
official or employee, including of any government- owned or controlled entity or of a public international organization, or any person
acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political
office; (iii) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977, as amended, or any
applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business
Transactions, or committed an offence under the Bribery Act 2010 of the United Kingdom or any other applicable anti-bribery or anti-corruption
law; or (iv) made, offered, agreed, requested or taken an act in furtherance of any unlawful bribe or other unlawful benefit,
including, without limitation, any rebate, payoff, influence payment, kickback or other unlawful or improper payment or benefit. The
Company has instituted, maintained and enforced, and will continue to maintain and enforce policies and procedures designed to promote
and ensure compliance with all applicable anti-bribery and anti-corruption laws and the representations and warranties contained herein.
The Company will not use, directly or indirectly, the proceeds from the offering the of Shares hereunder in furtherance of any offer,
payment, promise to pay or authorization or approval of any payment or benefit, giving or receipt of money, property, gifts or anything
else of value, to any person in violation of any anti-corruption laws.
(ww) Compliance
with Anti-Money Laundering Laws. The operations of the Company are and have been conducted at all times in compliance with all applicable
financial recordkeeping and reporting requirements, including those of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, the applicable money laundering statutes of all jurisdictions where the Company conducts business, the rules and regulations
thereunder and any related or similar rules, regulations or guidelines issued, administered or enforced by any governmental agency (collectively,
the “Anti-Money Laundering Laws”), and no action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company with respect to the Anti-Money Laundering Laws is pending or, to the knowledge
of the Company, threatened.
(xx) No
Conflicts with Sanctions Laws. Neither the Company nor any of its directors, officers, or employees, nor, to the knowledge of the
Company, any agent, affiliate, representative or other person associated with or acting on behalf of the Company (each, a “Person”)
is, or is owned or controlled by one or more persons that are, currently the subject or the target of any sanctions administered or enforced
by the U.S. government, (including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury or
the U.S. Department of State and including, without limitation, the designation as a “specially designated national” or “blocked
person”), the United Nations Security Council, the European Union, Her Majesty’s Treasury or other relevant sanctions authority
(collectively, “Sanctions”), nor is the Company located, organized or resident in a country or territory that is the
subject or target of Sanctions, including, without limitation, the Balkans, Belarus, Burundi, the Central African Republic, Cuba, the
Democratic Republic of the Congo, Iran, Libya, North Korea, Sudan, Syria and Venezuela (each, a “Sanctioned Country”);
and the Company will not directly or indirectly use the proceeds of the offering of the Shares hereunder, or lend, contribute or otherwise
make available such proceeds to any joint venture partner or other person or entity (i) to fund or facilitate any activities of
or business with any person that, at the time of such funding or facilitation, is the subject or target of Sanctions, (ii) to fund
or facilitate any activities of or business in any Sanctioned Country or (iii) in any other manner that will result in a violation
by any person (including any person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions.
For the past five years, the Company has not knowingly engaged in and is not now knowingly engaged in, and will not engage in, any dealings
or transactions with any Person that at the time of the dealing or transaction is or was the subject or the target of Sanctions or with
any Sanctioned Country.
Any certificate signed by any officer of the Company
delivered to the Manager or to counsel for the Manager shall be deemed a representation and warranty by the Company to the Manager as
to the matters covered thereby on the date of such certificate.
The
Company acknowledges that the Manager and, for purposes of the opinions to be delivered pursuant to Section 6 hereof, counsel to
the Company and counsel to the Manager, will rely upon the accuracy and truthfulness of the foregoing representations and warranties
and hereby consents to such reliance.
2. Sale
of Securities. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions
herein set forth, the Company and the Manager agree that the Company may from time to time seek to sell Shares through the Manager, acting
as sales agent as follows:
(a) The
Company may submit its orders to the Manager by telephone or electronic mail (including any price, time or size limits or other customary
parameters or conditions) to sell Shares on any Trading Day (as defined herein), which order shall be confirmed by the Manager (and accepted
by the Company) by electronic mail using a form substantially similar to that attached hereto as Exhibit A. As used herein,
“Trading Day” shall mean any trading day on the Exchange, other than a day on which the Exchange is scheduled to close
prior to its regular weekday closing time.
(b) Subject
to the terms and conditions hereof, the Manager shall use its commercially reasonable efforts consistent with its normal sales and trading
practices to execute any Company order submitted to it hereunder to sell Shares with respect to which the Manager has agreed to act as
sales agent. The Company acknowledges and agrees that (i) there can be no assurance that the Manager will be successful in selling
the Shares, (ii) the Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell
Shares for any reason and (iii) 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.
(c) The
Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company other than (i) by any method permitted
by law deemed to be an “at the market” offering as defined in Rule 415(a)(4) of the Securities Act, including block
transactions, by means of ordinary brokers’ transactions (whether or not solicited) between members of the Exchange that qualify
for delivery of a Prospectus to the Exchange in accordance with Rule 153 of the Securities Act, to or through a market maker, directly
on or through any national securities exchange or facility thereof, a trading facility of a national securities association, an alternative
trading system, or any other market venue, in the over-the-counter market, in privately negotiated transactions, or through a combination
of any such methods and (ii) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as
shall be agreed by the Company and the Manager.
(d) The
Company shall not authorize the issuance and sale of, and the Manager shall not sell, any Share at a price lower than the minimum price
therefor designated by the Company pursuant to Section 2(a) above. In addition, the Company or the Manager may, upon notice
to the other party hereto by telephone (confirmed promptly by email), suspend an offering of the Shares pursuant to this Agreement for
a specified period (a “Suspension Period”); provided, however, that such suspension shall not affect
or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the receipt or giving of such
notice, as applicable; and provided further, that there shall be no obligations under Sections 6(l), 6(m), 6(n) and 6(o) with
respect to the delivery of certificates, opinions or comfort letters to the Managers during a Suspension Period and that such obligations
shall recommence on the termination of the Suspension Period.
(e) The
Manager shall provide written confirmation (which may be by email) to the Company following the close of trading on the Exchange each
day in which Shares are sold under this Agreement setting forth (i) the amount of Shares sold on such day, (ii) the price or
prices at which such Shares were sold on such day, (iii) the gross offering proceeds received from such sale, (iv) the Net
Proceeds (as defined below) to the Company and (v) the commission payable by the Company to the Manager with respect to such sales.
(f) At
each Time of Sale, Settlement Date and Representation Date (as defined in Section 6(l) below), the Company shall be deemed
to have affirmed each representation and warranty contained in this Agreement. Any obligation of the Manager to use its commercially
reasonable efforts to sell the Shares on behalf of the Company as sales agent 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 5 of this Agreement.
(g) Notwithstanding
any other provision of this Agreement, the Company and the Manager agree that no sales of Shares shall take place, the Company shall
not request the sales of any Shares that would be sold and the Manager shall not be obligated to sell or offer to sell, during any period
in which the Company is, or could reasonably be deemed to be, in possession of material non-public information.
3. Fee.
(a) The
compensation to the Manager for sales of the Shares with respect to which the Manager acts as sales agent hereunder shall be 3% of the
gross offering proceeds of the Shares sold pursuant to this Agreement (the “Selling Commission”). For each
sale of Shares, the amount of sale proceeds remaining after payment of the Selling Commission shall constitute the net proceeds to the
Company for such sale of Shares (the “Net Proceeds”). The Company shall pay to the Manager, on the applicable Settlement
Date, the Selling Commission for the applicable Shares sold by the Manager (which amount may be withheld by the Manager from the gross
proceeds from the sale of such Shares). For the avoidance of doubt, any expense payment and reimbursement obligations of the Company
set forth in Section 6(i) below shall be separate and independent obligations of the Company and shall not be deemed
a credit or otherwise act to offset the compensation to the Manager pursuant to this Agreement.
(b) If
this Agreement is terminated by the Company in accordance with the provisions of Section 10 and, at the time of the Company’s
notice of termination, the number of the Shares sold pursuant to this Agreement is less than 10% of the total available Shares, the Company
shall reimburse the Manager for all of its reasonable out-of-pocket expenses, including the reasonable fees and disbursements of counsel
for the Manager incurred by it in connection with the offering contemplated by this Agreement, provided that such reimbursement shall
not exceed the amounts actually incurred and reimbursable pursuant to Section 6(i) hereof through the date of such termination,
without regard to any maximum reimbursement limits set forth in Section 6.
4. Payment,
Delivery and Other Obligations. Settlement for sales of the Shares pursuant to this Agreement will occur on the second Trading Day
(or such earlier day as is industry practice for regular-way trading) following the date on which such sales are made (each such day,
a “Settlement Date”). On each Settlement Date, the Shares sold through the Manager for settlement on such date shall
be issued and delivered by the Company to the Manager against payment of the Net Proceeds from the sale of such Shares. Settlement for
all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s or its designee’s
account (provided that the Manager shall have given the Company written notice of such designee prior to the applicable Settlement Date)
at The Depository Trust Company or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all
cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payment in same day funds delivered
to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default on its obligation to deliver
the Shares on any Settlement Date, then the Company shall (i) hold the Manager harmless against any loss, claim, damage, or expense
(including reasonable legal fees and expenses), as incurred, arising out of or in connection with such default by the Company and (ii) pay
the Manager any commission, discount or other compensation to which it would otherwise be entitled absent such default.
5. Conditions
to the Manager’s Obligations. The obligations of the Manager are subject to the following conditions:
(a) Since
the later of (A) the date of this Agreement and (B) the immediately preceding Representation Date: (i) there shall not
have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible
change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company by any
“nationally recognized statistical rating organization”, as such term is defined in Section 3(a)(62) of the Exchange
Act; and (ii) there shall not have occurred in the Manager’s sole judgment, any change or development reasonably likely to
become a Material Adverse Effect from the respective dates of the Registration Statement, the Prospectus and the General Disclosure Package
that, in the Manager’s sole judgment, makes it impracticable to market the Shares on the terms and in the manner contemplated in
the Prospectus.
(b) The
Manager shall have received on each date specified in Section 6(l) a certificate, dated such date and signed by an executive
officer of the Company, to the effect set forth in Section 5(a)(i) above and to the effect that (i) the representations
and warranties of the Company contained in this Agreement are true and correct as of such date; (ii) the Company has complied with
all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such date;
(iii) no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and
no proceedings for that purpose or pursuant to Section 8A of the Securities Act have been instituted or are pending or, to the knowledge
of the Company, are contemplated by the Commission, and any request on the part of the Commission for additional information has been
complied with; (iv) the Prospectus Supplement, any Interim Prospectus Supplement and each Permitted Free Writing Prospectus have
been timely filed with the Commission under the Securities Act (in the case of a Permitted Free Writing Prospectus, to the extent required
by Rule 433 under the Securities Act), and all requests for additional information on the part of the Commission have been complied
with or otherwise satisfied; (v) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation
Date, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading; and (vi) as of such date and as of each Time of
Sale, if any, subsequent to the immediately preceding Representation Date, the General Disclosure Package did not contain any untrue
statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading; provided, however, that no such certificate
shall apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company
by the Manager expressly for use in the General Disclosure Package. The officer signing and delivering such certificate may rely upon
his or her knowledge as to proceedings threatened.
(c) The
Manager shall have received on each date specified in Section 6(m) a certificate of the Secretary of the Company, dated such
date, as described in Section 6(m).
(d) (i) The
Manager shall have received on each date specified in Section 6(m) an opinion and negative assurance letter of Munck Wilson
Mandala LLP, outside counsel for the Company, dated such date, in form and substance reasonably satisfactory to the Manager, which opinion
and negative assurance letter shall be rendered to the Manager at the request of the Company and shall so state therein.
(e) The
Manager shall have received on each date specified in Section 6(n) an opinion and negative assurance letter of Faegre Drinker
Biddle & Reath LLP, counsel for the Manager, dated such date, in form and substance reasonably satisfactory to the Manager.
(f) The
Manager shall have received on each date specified in Section 6(o), letters dated such date in form and substance satisfactory to
the Manager, from Company Auditor, current independent registered public accountant for the Company, (A) confirming that as of the
date of its respective audit report(s), it was an independent registered public accounting firm within the meaning of the Securities
Act, the Exchange Act and the Public Company Accounting Oversight Board, (B) stating, as of such date, the conclusions and findings
of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters”
to underwriters in connection with registered public offerings (the first such letters from Company Auditor, the “Initial Comfort
Letter”) and (C) updating the Initial Comfort Letter with any information that would have been included in the Initial
Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement, the Prospectus Supplement,
the Prospectus or any issuer free writing prospectus, as amended and supplemented to the date of such letter.
(g) All
filings with the Commission required by Rule 424 under the Act to have been filed by each Time of Sale or related Settlement Date
shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)).
(h) The
Shares shall have been approved for listing on the Exchange, subject only to a notice of issuance at or prior to the applicable Settlement
Date.
6. Covenants
of the Company. The Company covenants with the Manager as follows:
(a) To
furnish to the Manager copies of the Registration Statement (excluding exhibits) and copies of the Prospectus (or the Prospectus, as
amended or supplemented) in such quantities as the Manager may from time to time reasonably request. In case the Manager is required
to deliver, under the Securities Act (whether physically or through compliance with Rule 172 under the Securities Act or any similar
rule), a prospectus relating to the Shares after the nine-month period referred to in Section 10(a)(3) of the Securities Act,
or after the time a post-effective amendment to the Registration Statement is required pursuant to Item 512(a) of Regulation S-K
under the Securities Act, upon the request of the Manager, and at its own expense, the Company shall prepare and deliver to the Manager
as many copies as the Manager may reasonably request of an amended Registration Statement or amended or supplemented prospectus complying
with Item 512(a) of Regulation S-K or Section 10(a)(3) of the Securities Act, as the case may be.
(b) Before
amending or supplementing the Registration Statement or the Prospectus, to furnish to the Manager a copy of each such proposed amendment
or supplement and not to file any such proposed amendment or supplement to which the Manager reasonably objects (other than any prospectus
supplement relating to the offering of Shelf Securities other than the Shares). To furnish to the Manager a copy of each proposed free
writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed
free writing prospectus to which the Manager reasonably objects. Not to take any action that would result in the Manager or the Company
being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared
by or on behalf of the Manager that the Manager otherwise would not have been required to file thereunder.
(c) To
file, subject to Section 6(b) above, promptly all reports and any definitive proxy or information statements required to be
filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the
date of the Prospectus Supplement and for the duration of the Delivery Period. For the duration of the Delivery Period, to include in
its quarterly reports on Form 10-Q, and in its annual reports on Form 10-K, a summary detailing, for the relevant reporting
period, (i) the number of Shares sold through the Manager pursuant to this Agreement, (ii) the Net Proceeds received by the
Company from such sales and (iii) the compensation paid by the Company to the Manager with respect to such sales (or alternatively,
to prepare a prospectus supplement (each, an “Interim Prospectus Supplement”) with such summary information and, at
least once a quarter and subject to Section 6(b) above, file such Interim Prospectus Supplement pursuant to Rule 424(b) under
the Securities Act (and within the time periods required by Rule 424(b) and Rules 430A, 430B or 430C under the Securities
Act)).
(d) To
file any Permitted Free Writing Prospectus to the extent required by Rule 433 under the Securities Act and to provide copies of
the Prospectus and such Prospectus Supplement and each Permitted Free Writing Prospectus (to the extent not previously delivered or filed
on EDGAR or any successor system thereto) to the Manager via electronic mail in “.pdf” format on such filing date to an electronic
mail account designated by the Manager and, at the Manager’s request, to also furnish copies of the Prospectus and such Prospectus
Supplement to the Exchange and each other exchange or market on which sales of the Shares were effected, in each case, as may be required
by the rules or regulations of the Exchange or such other exchange or market.
(e) During
the Delivery Period to advise the Manager, promptly and no later than one Trading Day after it receives notice thereof, of the issuance
of any stop order by the Commission, of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, of
the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing
of the Registration Statement, the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus or for additional information;
and, in the event of the issuance of any such stop order or of any order preventing or suspending the use of any prospectus relating
to the Shares or suspending any such qualification, to promptly use its best efforts to obtain its withdrawal.
(f) If,
after the date hereof and during the Delivery Period, either (i) any event shall occur or condition exist as a result of which the
Prospectus would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading, or (ii) for any other reason it shall be
necessary during such same period to amend or supplement the Prospectus or to file any document in order to comply with the Securities
Act or the Exchange Act, to promptly advise the Manager by telephone (with confirmation in writing or electronic mail) and to promptly
prepare and file, subject to Section 6(b) above, with the Commission an amendment or supplement to the Registration Statement
or the Prospectus which will correct such statement or omission or effect such compliance and to furnish to the Manager as many copies
as the Manager may reasonably request of such amendment or supplement.
(g) To
endeavor to qualify the Shares for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Manager shall reasonably
request and to continue such qualifications in effect so long as necessary under such laws for the distribution of the Shares; provided,
however, that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under
the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Shares).
(h) To
make generally available to the Company’s security holders and to the Manager as soon as practicable an earnings statement covering
a period of at least 12 months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement which
shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(i) Whether
or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all
expenses incident to the performance of its obligations under this Agreement, including:
(A) the
fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with the registration
and delivery of the Shares under the Securities Act and all other fees or expenses in connection with the preparation and filing of the
Registration Statement, any Prospectus Supplement, the Prospectus, any free writing prospectus prepared by or on behalf of, used by,
or referred to by the Company and amendments and supplements to any of the foregoing, including the filing fees payable to the Commission
relating to the Shares (within the time required by Rule 456(b)(1), if applicable), all printing costs associated therewith, and
the mailing and delivering of copies thereof to the Manager, in the quantities hereinabove specified;
(B) all
costs and expenses related to the transfer and delivery of the Shares, including any transfer or other taxes payable thereon;
(C) the
cost of printing or producing any Blue Sky or Legal Investment memorandum in connection with the offer and sale of the Shares under state
securities laws and all expenses in connection with the qualification of the Shares for offer and sale under state securities laws as
provided in Section 6(g) above, including filing fees and the reasonable fees and disbursements of counsel for the Manager
in connection with such qualification and in connection with the Blue Sky or Legal Investment memorandum;
(D) any
Financial Industry Regulatory Authority fees and expenses, including all filing fees and the reasonable fees and disbursements of counsel
to the Manager incurred in connection with the offering contemplated by this Agreement relating to any review and qualification by the
Financial Industry Regulatory Authority;
(E) all
costs and expenses incident to listing the Shares on the Exchange;
(F) the
costs and charges of any transfer agent, registrar or depositary;
(G) all
fees, expenses and disbursements relating to background checks of the Company’s officers and directors in an amount not to exceed
$1,000 per individual;
(H) the
reasonable fees and disbursements of counsel to the Manager incurred in connection with the offering contemplated by this Agreement other
than as set forth in this Section, provided that reimbursement pursuant to this clause (H) shall not exceed $60,000 through
the fourth business day following execution of this Agreement and shall not exceed $10,000 for each quarterly period thereafter; and
(I) all
other costs and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise
made in this Section. It is understood, however, that except as provided in this Section 6, Section 3 and Section 8, the
Manager will pay all of its costs and expenses, including any advertising expenses connected with any offers the Manager may make.
(j) If
the third anniversary of the initial effective date of the Registration Statement occurs before all the Shares have been sold, prior
to such third anniversary, to file, subject to Section 6(b), a new shelf registration statement and to take any other action necessary
to permit the public offering of the Shares to continue without interruption (references herein to the Registration Statement shall include
the new registration statement that is declared effective by, or becomes effective upon filing with, the Commission).
(k) To
use its commercially reasonable efforts to cause the Shares to be listed for trading on the Exchange and to maintain such listing.
(l) 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 a Suspension Period), and each time that (i) the Registration Statement or the Prospectus is amended or supplemented
(other than a prospectus supplement relating solely to the offering of Shelf Securities other than the Shares) or (ii) there is
filed with the Commission any document incorporated by reference into the Prospectus (other than a current report on Form 8-K, unless
the Manager shall otherwise reasonably request) (such commencement date (and any such recommencement date, if applicable) and each such
date referred to in (i) and (ii) above, a “Representation Date”), to furnish or cause to be furnished to
the Manager forthwith a certificate dated and delivered as of such date (except that, in the case of clause (ii), the Company
has up to two business days after the filing to furnish the certificate), in form reasonably satisfactory to the Manager, to the effect
that the statements contained in the certificate referred to in Section 5(b) of this Agreement are true and correct at the
time of such Representation Date, as though made at and as of such time modified as necessary to relate to the Registration Statement
and the Prospectus as amended and supplemented to the time of delivery of such certificate.
(m) On
each Representation Date, the Company shall furnish the Manager, in form and substance reasonably satisfactory to the Manager, a certificate
executed by the Secretary of the Company, signing in such capacity, dated the date of delivery (i) certifying that attached thereto
are true and complete copies of the resolutions duly adopted by the board of directors of the Company authorizing the execution and delivery
of this Agreement and the consummation of the transactions contemplated hereby (including, without limitation, the issuance of the Shares
pursuant to this Agreement), which authorization shall be in full force and effect on and as of the date of such certificate, (ii) certifying
and attesting to the office, incumbency, due authority and specimen signatures of each person who executed this Agreement for or on behalf
of the Company, and (iii) containing any other certification that the Manager shall reasonably request (except that, in the case
of clause (ii) of Section 6(l) above, the Company has up to two business days after the filing to furnish the secretary
certificate to the Manager).
(n) On
each Representation Date, the Company shall cause to be furnished to the Manager, dated as of such date, in form and substance satisfactory
to the Manager, the written opinion and negative assurance letter of Munck Wilson Mandala LLP, outside counsel for the Company,
as described in Section 5(d), modified as necessary to relate to the Registration Statement and the Prospectus, as amended and supplemented
to the time of delivery of such opinion and negative assurance letter (except that, in the case of clause (ii) of Section 6(l) above,
the Company has up to two business days after the filing to have the written opinions and negative assurance letters furnished to the
Manager).
(o) On
each Representation Date, Faegre Drinker Biddle & Reath LLP, counsel to the Manager, shall furnish to the Manager a written
opinion and negative assurance letter, dated as of such date in form and substance reasonably satisfactory to the Manager (except
that, in the case of clause (ii) of Section 6(l) above, Faegre Drinker Biddle & Reath LLP has up to two business
days after the filing to have the written opinions and negative assurance letters furnished to the Manager).
With respect to Sections 6(n) and 6(o) above,
in lieu of delivering such an opinion for dates subsequent to the commencement of the offering of the Shares under this Agreement such
counsel may furnish the Manager with a letter (a “Reliance Letter”) to the effect that the Manager may rely on a prior
opinion delivered under Section 6(n) or Section 6(o), as the case may be, 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 date).
(p) 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 a Suspension Period) and each time that (i) the Registration Statement or the Prospectus is amended or supplemented
to include additional financial information, (ii) the Company files an annual report on Form 10-K or quarterly report on Form 10-Q,
(iii) there is furnished to the Commission by the Company any document which contains additional or amended financial information,
including any earnings release or, (iv) there is filed with the Commission any document (other than an annual report on Form 10-K
or quarterly report on Form 10-Q) incorporated by reference into the Prospectus which contains additional or amended financial information,
Company Auditor shall deliver to the Manager the comfort letter described in Section 5(e) (except that, in the case of clauses
(iii) and (iv), the Company Auditor has up to two business days after the filing to deliver the comfort letter).
(q) To
comply with the Due Diligence Protocol attached hereto on Schedule II and any other due diligence review or call reasonably requested
by the Manager.
(r) The
Company will deliver to the Manager (or its agent), on the date of execution of this Agreement, any requested certificates and related
identifying documentation, and the Company undertakes to provide such additional supporting documentation as the Manager may reasonably
request in connection with the verification of compliance with anti-money laundering requirements.
(s) To
reserve and keep available at all times, free of preemptive rights, Shares for the purpose of enabling the Company to satisfy its obligations
hereunder.
(t) That
it 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.
(u) That
each acceptance by the Company of an offer to purchase the Shares hereunder 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 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 Time of Sale and the Settlement Date for the Shares relating to such acceptance as though made at and as of each of
such dates (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).
(v) Prior
to instructing the Manager pursuant to Section 2 hereof to make sales on any given day (or as otherwise agreed between the Company
and the Manager), the Company’s board of directors or a committee thereof authorized by either such board of directors or any authorized
committee thereof (the “Board”) (i) shall have approved the minimum price and maximum number of Shares to be
sold on such day and (ii) shall have provided to the Company an authorizing resolution, substantially in the form of Exhibit B,
approving such price and number. The instructions provided to the Manager by the Company, pursuant to Section 2, on such day shall
reflect the terms of such authorizing resolution.
(w) Not
to, or publicly disclose an intention to, sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to sell
or otherwise dispose of or agree to dispose of, directly or indirectly, any shares of the Common Stock or securities convertible into
or exchangeable or exercisable for the Common Stock or warrants or other rights to purchase the Common Stock or any other securities
of the Company that are substantially similar to the Common Stock or permit the registration under the Securities Act of any shares of
the Common Stock, except for (i) the registration of the Shares and the sales through the Manager pursuant to this Agreement, (ii) any
shares of Common Stock issued by the Company upon the exercise of an option or warrant or the conversion of a security outstanding on
the date hereof and referred to in the Prospectus, (iii) any shares of Common Stock issued or options to purchase Common Stock granted
pursuant to existing employee benefit plans or long term incentive plan of the Company or (iv) any shares of Common Stock issued
pursuant to any stock repurchase plan of the Company, during the Delivery Period, without (A) giving the Manager at least three
business days’ prior written notice specifying the nature of the proposed sale and the date of such proposed sale and (B) the
Manager suspending activity under this program for such period of time as requested by the Company or (v) any shares of Common Stock
issued pursuant to the Yorkville Agreements or to YN II PN, Ltd. or an affiliate thereof.
7. Covenants
of the Manager. The Manager covenants with the Company not to take any action that would result in the Company being required to
file with the Commission under Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the
Manager that otherwise would not be required to be filed by the Company thereunder, but for the action of the Manager.
8. Indemnity
and Contribution.
(a) Indemnification
of the Manager. The Company agrees to indemnify and hold harmless the Manager and each person, if any, who controls the Manager within
the meaning of either Section 15 of the Securities Act or Section 20(a) of the Exchange Act and each affiliate of the
Manager within the meaning of Rule 405 under the Securities Act from and against any and all losses, liabilities, claims, damages
and expenses whatsoever as incurred (including without limitation, reasonable attorneys’ fees and any and all reasonable expenses
whatsoever incurred in investigating, preparing or defending against any litigation, commenced or threatened, or any claim whatsoever,
and any and all amounts paid in settlement of any claim or litigation in accordance with this Section), joint or several, to which they
or any of them may become subject under the Securities Act, the Exchange Act or otherwise, insofar as such losses, liabilities, claims,
damages or expenses (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, the Prospectus, the Prospectus Supplement (including any Interim Prospectus
Supplement), the General Disclosure Package, any Permitted Free Writing Prospectus or other free writing prospectus that the Company
has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act, or in any supplement thereto or amendment
thereof, or arising out of or 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; provided, however, that the Company will not be liable in any
such case to the extent that any such loss, liability, claim, damage or expense arises out of or is based upon any such untrue statement
or alleged untrue statement or omission or alleged omission was made in reliance upon and in strict conformity with written information
relating to the Manager furnished to the Company in writing by or on behalf of the Manager expressly for use therein.
(b) Indemnification
of the Company. The Manager agrees to indemnify and hold harmless the Company, each of the directors of the Company, each of the
officers of the Company who signed the Registration Statement, and each other person, if any, who controls the Company within the meaning
of either Section 15 of the Securities Act or Section 20(a) of the Exchange Act, to the same extent as the foregoing indemnity
from the Company to the Manager, but only with reference to information relating to the Manager furnished to the Company in writing by
the Manager expressly for use in the Registration Statement, the Prospectus, the Prospectus Supplement (including any Interim Prospectus
Supplement), the General Disclosure Package, any Permitted Free Writing Prospectus or other free writing prospectus that the Company
has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act, or any amendment or supplement thereto.
(c) Required
Notices; Right to Counsel. In case any proceeding (including any governmental investigation) shall be instituted involving any person
in respect of which indemnity may be sought pursuant to Section 8(a) or 8(b), such person (the “indemnified party”)
shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing (it
being understood that the omission so to notify the indemnifying party shall not relieve the indemnifying party from any liability that
it might have to any indemnified party otherwise than under this Section 8 and from any liability that it may have to any indemnified
party under the foregoing provisions of this Section 8 unless, and only to the extent that, such omission results in the forfeiture
of substantive rights or defenses by the indemnifying party), and the indemnifying party shall retain counsel reasonably satisfactory
to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall
have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party
unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between
them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection
with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are
incurred. Such firm shall be designated in writing by the Manager, in the case of parties indemnified pursuant to Section 8(a),
and by the Company, in the case of parties indemnified pursuant to Section 8(b). The indemnifying party shall not be liable for
any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment
for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying
party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph,
the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying
party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject
matter of such proceeding.
(d) Contribution.
If the indemnification provided for in this Section 8 is unavailable to or insufficient to hold harmless an indemnified party
under Section 8(a) or 8(b) in respect of any losses, liabilities, claims, damages or expenses (or actions in respect
thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as
a result of such losses, liabilities, claims, damages or expenses (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative benefits received by the Company on the one hand and the Manager on the other from the offering of the Shares.
If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law, then each indemnifying
party shall contribute to such amount paid or payable by such indemnified party 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 the Manager on the other in connection with the
statements or omissions which resulted in such losses, liabilities, claims, damages or expenses (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and the Manager, on the
other hand, from the offering of the Shares shall be deemed to be in the same respective proportions as the gross proceeds from the offering
(before deducting expenses) received by the Company bear to the total commissions received by the Manager. The relative fault shall of
the Company, on the one hand, and the Manager, on the other hand, shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information
supplied by the Company or the Manager and the parties’ relative intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission.
The
Company and the Manager agree that it would not be just and equitable if contributions pursuant to this Section 8(d) were
determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations
referred to above in this Section 8(d). The amount paid or payable by an indemnified party as a result of the losses, liabilities,
claims, damages or expenses (or actions in respect thereof) referred to above in this Section 8(d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 8(d), the Manager shall not be required to contribute any
amount in excess of the amount by which the total price at which the Shares sold by it were offered to the public exceeds the amount
of any damages that the Manager has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission or any amount in excess of the Selling Commission received by the Manager in connection with the offering contemplated
hereby.
No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation.
For purposes of this Section 8(d),
each officer and employee of the Manager and each person, if any, who controls the Manager within the meaning of the Securities Act or
the Exchange Act shall have the same rights to contribution as the Manager, and each director of the Company, each officer of the Company
who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of the Securities Act and
the Exchange Act shall have the same rights to contribution as the Company.
(e) Non-Exclusive
Remedies. The obligations of the parties to this Agreement contained in this Section 8 are not exclusive and shall not limit
any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) Information
Provided by Manager. It is understood and agreed that the only information furnished by the Manager to the Company pursuant to Section 8(a) or
8(b) that is included in the Registration Statement, the General Disclosure Package, the Prospectus or any road show other material
consists of the information set forth in the ninth paragraph under the caption “Plan of Distribution” in the Prospectus Supplement
and the Prospectus.
(g) Survival.
The indemnity and contribution provisions contained in this Section 8 and the representations, warranties and other statements
of the Company contained in this Agreement shall remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by or on behalf of the Manager, any person controlling the Manager or any affiliate
of the Manager or by or on behalf of the Company, its officers or directors or any person controlling the Company and (iii) acceptance
of and payment for any of the Shares.
9. Effectiveness.
This Agreement shall become effective upon the execution and delivery hereof by the parties hereto.
10. Termination.
(a) The
Company shall have the right, by giving written notice as hereinafter specified, to terminate this Agreement in its sole discretion at
any time. 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, but not limited to, its obligations under Section 4
above, shall remain in full force and effect notwithstanding such termination; and (ii) the provisions of Section 1, Section 3(b) and
Section 8 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 this Agreement in its sole discretion at
any time. 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, but not limited to, its obligations under Section 4
above, shall remain in full force and effect notwithstanding such termination; and (ii) the provisions of Section 1, Section 3
and Section 8 of this Agreement shall remain in full force and effect notwithstanding such termination.
(c) This
Agreement shall remain in full force and effect until and unless terminated pursuant to Section 10(a) or 10(b) above or
otherwise by mutual agreement of the parties; provided that any such termination by mutual agreement or pursuant to this Section 10(c) shall
in all cases be deemed to provide that Section 1, Section 3(b) and Section 8 of this Agreement 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 applicable Settlement Date for any sale of Shares, then such sale shall settle in accordance
with the provisions of Section 4.
11. Press
Releases and Disclosure. The Company may issue a press release describing the material terms of the transactions contemplated hereby
as soon as practicable following the date of this Agreement, and may file with the Commission a Current Report on Form 8-K, with
this Agreement attached as an exhibit thereto, describing the material terms of the transactions contemplated hereby, and the Company
shall consult with the Manager prior to making such disclosures, and the parties hereto shall use all commercially reasonable efforts,
acting in good faith, to agree upon a text for such disclosures that is reasonably satisfactory to all parties hereto. No party hereto
shall issue thereafter any press release or like public statement (including, without limitation, any disclosure required in reports
filed with the Commission pursuant to the Exchange Act) related to this Agreement or any of the transactions contemplated hereby without
the prior written approval of the other party hereto, except as may be necessary or appropriate in the reasonable opinion of the party
seeking to make disclosure to comply with the requirements of applicable law or stock exchange rules and except for the disclosure
required pursuant to Section 6(c) of this Agreement in the Company’s quarterly reports on Form 10-Q or annual reports
on Form 10-K. If any such press release or like public statement is so required, the party making such disclosure shall consult
with the other party prior to making such disclosure, and the parties shall use all commercially reasonable efforts, acting in good faith,
to agree upon a text for such disclosure that is reasonably satisfactory to all parties hereto.
12. Entire
Agreement.
(a) This
Agreement represents the entire agreement between the Company and the Manager with respect to the preparation of any Registration Statement,
Prospectus Supplement or the Prospectus, the conduct of the offering and the sale and distribution of the Shares.
(b) The
Company acknowledges that in connection with the offering of the Shares: (i) the Manager has acted and will act at arm’s length
and owes no fiduciary duties to, the Company or any other person, (ii) the Manager owes the Company only those duties and obligations
set forth in this Agreement and prior written agreements (to the extent not superseded by this Agreement), if any, and (iii) the
Manager may have interests that differ from those of the Company. The Company waives to the full extent permitted by applicable law any
claims it may have against the Manager arising from an alleged breach of fiduciary duty in connection with the sale and distribution
of the Shares.
(c) This
Agreement may not be amended or modified unless in writing by all of the parties hereto, and no condition herein (express or implied)
may be waived unless waived in writing by each party whom the condition is meant to benefit.
13. Counterparts.
This Agreement may be signed in two or more counterparts, each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument and may be delivered by facsimile transmission or by electronic delivery of a
portable document format (PDF) file or via DocuSign electronic signature.
14. Applicable
Law; Consent to Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the internal laws of the State
of New York without regard to the principles of conflicts of laws. Each party hereby irrevocably submits to the non-exclusive jurisdiction
of the state and federal courts sitting in Hennepin County, Minnesota, for the adjudication of any dispute hereunder or in connection
with any transaction contemplated hereby, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding,
any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in
an inconvenient forum or that the venue of such suit, action or proceeding is improper. Each party hereby irrevocably waives personal
service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof (certified or
registered mail, return receipt requested) to such party at the address in effect for notices to it under this Agreement and agrees that
such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to
limit in any way any right to serve process in any manner permitted by law.
15. Headings.
The headings of the sections of this Agreement have been inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
16. Notices.
All communications hereunder shall be in writing, effective only upon receipt and shall be delivered, mailed, telecopied, or sent by
email and confirmed to the parties hereto as follows, or in each case to such other address as the person to be notified may have requested
in writing. Any party to this Agreement may change such address for notices by sending to the parties to this Agreement written notice
as provided hereunder of a new address for such purpose.
If to the Manager, to:
Northland Securities, Inc.
150 South Fifth Street, Suite 3300
Minneapolis, MN 55402
Attention: [***]
Email: [***]
with a copy to (which shall not constitute notice):
Faegre Drinker Biddle & Reath LLP
2200 Wells Fargo Center
90 South Seventh Street
Minneapolis, MN 55402-3901
Attn: [***]
Email: [***]
If to the Company:
Canoo
Inc.
19951 Mariner Avenue
Torrance, California 90503
Attention: Chief Financial Officer
Email: [***]
with a copy to (which shall not constitute notice):
Munck
Wilson Mandala LLP
600 Banner Place
12770 Coit Rd.
Dallas, Texas 75251
Attn: [***]
Email: [***]
17. Successors.
This Agreement will inure to the benefit of and be binding upon the parties hereto, and to the benefit persons referred to in Section 8(a) or
8(b), and in each case their respective successors, and no other person will have any right or obligation hereunder. The term “successors”
shall not include any purchaser of the Shares as such from the Manager merely by reason of such purchase.
18. Partial
Unenforceability. The invalidity or unenforceability of any article, section, paragraph or provision of this Agreement shall not
affect the validity or enforceability of any other Article, Section, paragraph or provision hereof. If any article, section, paragraph
or provision of this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such minor
changes (and only such minor changes) as are necessary to make it valid and enforceable.
19. Recognition
of the U.S. Special Resolution Regimes.
(a) In
the event that the Manager is a Covered Entity (as defined in this Section) and becomes subject to a proceeding under a U.S. Special
Resolution Regime (as defined in this Section), the transfer from the Manager of this Agreement, and any interest and obligation in or
under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime
if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
(b) In
the event that the Manager is a Covered Entity or a BHC Act Affiliate (as defined in this Section) of the Manager becomes subject to
a proceeding under a U.S. Special Resolution Regime, Default Rights (as defined in this Section) under this Agreement that may be exercised
against the Manager are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special
Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
(c) For
purposes of this Section: (i) a “BHC Act Affiliate” has the meaning assigned to the term “affiliate”
in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k); (ii) a “Covered Entity” means any
of the following: (A) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §
252.82(b); (B) “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b);
or (C) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b); (iii) “Default
Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81,
47.2 or 382.1, as applicable; and (iv) “U.S. Special Resolution Regime” means each of (A) the Federal Deposit
Insurance Act and the regulations promulgated thereunder and (B) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection
Act and the regulations promulgated thereunder.
[remainder of page left blank intentionally
- signature page follows]
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Very truly yours, |
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CANOO INC. |
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By: |
/s/ Greg Ethridge |
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Name: |
Greg Ethridge |
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Title: |
Chief Financial Officer |
Accepted as of the date first written above:
NORTHLAND SECURITIES, INC.
By: |
/s/ Ted Warner |
|
|
Name: |
Ted Warner |
|
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Title: |
Managing Director |
|
Signature Page to Equity
Distribution Agreement
SCHEDULE I
Permitted Free Writing Prospectuses
None.
SCHEDULE II
Due Diligence Protocol
Set forth below are guidelines for use by the
Company and the Manager in connection with the Manager’s continuous due diligence efforts in connection with the sale and distribution
of the Shares pursuant to the Agreement. For the avoidance of doubt, the Company has agreed that no sales under the Agreement will be
requested or made at any time the Company is, or could be deemed to be, in possession of material non-public information with respect
to the Company.
| 1. | On
or immediately prior to each Representation Date, in addition to the documents provided pursuant
to Sections 6(l), 6(m), 6(n), 6(o) and 6(p) of the Agreement, the Manager expects
to conduct a due diligence call with the appropriate business, financial and legal representatives
of the Company. |
| 2. | On the date of or promptly after the Company’s management report
becomes available for a given month (but no later than the last business day of the immediately
succeeding month), the Manager expects to conduct a due diligence call with the appropriate
business, financial, accounting and legal representatives of the Company and that the Company
shall provide the certificate referred to in Section 5(b) and Section 5(c) of
the Agreement. |
| 3. | In the event that the Company requests the Manager to sell on any one
Trading Day an amount of Shares that would be equal to or greater than 15% of the average
daily trading volume (calculated based on the most recent three completed Trading Days) of
the Company’s common stock, the Manager expects to conduct a due diligence call with
the appropriate business, financial, accounting and legal representatives of the Company
and that the Company shall provide the certificate referred to in Section 5(b) and
Section 5(c) of the Agreement. |
The foregoing is an expression of current intent only, and shall not
in any manner limit the Manager’s rights under the Agreement, including the Manager’s right to require such additional due
diligence procedures as the Manager may reasonably request pursuant to the Agreement.
Exhibit A
[Northland Letterhead]
__________, 20__
[Name]
[Address]
Attention: __________________
VIA ELECTRONIC MAIL
TRANSACTION
CONFIRMATION
Dear _________:
This
Confirmation sets forth the terms of the agreement of Northland Securities, Inc. (the “Manager”) with Canoo
Inc. (the “Company”) relating to the sale of up to [●] shares of the Company’s common stock, par value
$0.0001 per share, pursuant to the Equity Distribution Agreement between the Company and the Manager, dated [●], 202[__] (the “Agreement”).
Unless otherwise defined below, capitalized terms defined in the Agreement shall have the same meanings when used herein.
By countersigning or otherwise indicating in writing the Company’s
acceptance of this Confirmation (an “Acceptance”), the Company shall have agreed with the Manager to engage in the
following transaction:
[Number
of Shares to be sold][Aggregate Gross Price of Shares to be sold]: |
|
Minimum
price at which Shares may be sold: |
|
Date(s) on
which Shares may be sold: |
|
Compensation
to Manager (if different than the Agreement): |
|
The transaction set forth in this Confirmation will not be binding
on the Company or the Manager unless and until the Company delivers its Acceptance; provided, however, that neither the
Company nor the Manager will be bound by the terms of this Confirmation unless the Company delivers its Acceptance by _____ [a.m.][p.m.]
(New York time) on _______, 20__.
The transaction, if it becomes binding on the parties, shall be subject
to all of the representations, warranties, covenants and other terms and conditions of the Agreement, except to the extent amended or
modified hereby, all of which are expressly incorporated herein by reference. Each of the representations and warranties set forth in
the Agreement shall be deemed to have been made at and as of every Time of Sale, every Settlement Date and every Representation Date.
If the foregoing conforms to your understanding of our agreement,
please so indicate your Acceptance by signing below.
|
Very truly yours, |
|
|
|
NORTHLAND SECURITIES, INC. |
|
|
|
By: |
|
|
|
Name: |
|
|
Title: |
ACCEPTED as of the date first above written
[●]
Exhibit B
Form of Authorizing Resolution
The undersigned, constituting
all of the members of the Board of Directors (the “Board”) of Canoo Inc., a Delaware corporation (the “Company”),
acting pursuant to its Amended and Restated Bylaws (the “Bylaws”) and Section 141(f) of the Delaware General
Corporation Law, do hereby consent to the adoption of, and do hereby adopt, the following resolutions by unanimous written consent in
lieu of a special meeting:
WHEREAS,
the Board has determined that it is advisable and in the best interests of the Company to pursue from time to time the offering of shares
of its common stock, par value $0.0001 per share (the “Common Stock”), pursuant to the registration statements on
Form S-3 (File No. 333-264842 and 333-280962) and under any future registration statement on Form 3 forming part of this
offering, in “at-the-market” equity offerings (the “ATM Offering”);
WHEREAS,
the Board has determined that the ATM Offering is advisable and in the best interests of the Company; and
WHEREAS,
in connection with the foregoing, the Board has determined it advisable and in the best interests of the Company to enter into any of
the agreements and perform any of the transactions contemplated in connection with the foregoing.
ATM
Offering
NOW
THEREFORE, BE IT RESOLVED, that the Company is authorized to issue and sell in the ATM Offering an aggregate offering price
of up to $200,000,000 of its Common Stock (the “ATM Shares”);
FURTHER
RESOLVED, that the Company’s Chief Executive Officer, Chief Financial Officer, Chief Accounting Officer, General Counsel
and Corporate Secretary, and any other person designated by the Board from time to time (collectively, the “Authorized Officers”
and each individually, an “Authorized Officer”) be, and each hereby is, authorized to enter into one or more at the
market offering agreements (each, an “ATM Offering Agreement”) in connection with the sale of the ATM Shares and that
any such ATM Offering Agreement and the Company’s execution, delivery and performance thereof, is hereby approved;
FURTHER
RESOLVED, that unless subsequently authorized by the Board, in no event shall the aggregate number of ATM Shares issued in
connection with the ATM Offering exceed 400,000,000 shares, nor shall the consideration received in respect of any ATM Share be less
than $0.50 per share;
FURTHER
RESOLVED, that unless subsequently extended, amended or revoked by the Board, the authority set forth in these resolutions
shall expire on the date which is three years from the date of these resolutions;
FURTHER
RESOLVED, that the Authorized Officers be, and each hereby is, authorized to execute and deliver to Nasdaq any documents required
by Nasdaq in connection with the ATM Offering, including one or more supplemental listing applications, and that any such documents executed
and delivered by any Authorized Officer are hereby approved;
Preparation and Filing
of Prospectus Supplements For The ATM Shares
FURTHER
RESOLVED, that the Authorized Officers be, and hereby are, authorized on behalf of the Company to prepare, or cause to be
prepared, and to execute on behalf of the Company and file with the Securities and Exchange Commission (the “SEC”),
prospectus supplements under Rule 424(b) of the Securities Act of 1933, as amended, (collectively, the “Prospectus
Supplements”), and accompanied by such related prospectuses, if any, exhibits and other documents as any Authorized Officer
preparing the same shall approve, such approval to be conclusively evidenced by the filing of the Prospectus Supplements with the SEC,
for the purpose of registering the offer and sale of the ATM Shares, as described above, together with all necessary amendments and supplements
thereto required pursuant to the Securities Act, the rules and regulations promulgated thereunder, or the securities laws of any
state, with any and all exhibits and documents relating thereto;
FURTHER
RESOLVED, that each Authorized Officer be, and hereby is, authorized to file the Prospectus Supplements (together with the
appropriate exhibits thereto) and any necessary amendments and supplements thereto, with the SEC and any other appropriate regulatory
authority as determined by any Authorized Officer;
FURTHER
RESOLVED, that the General Counsel of the Company is hereby designated to act on behalf of the Company as the agent for service
to be named in the Prospectus Supplements under the Securities Act and is authorized to receive notices and communications from the SEC
in connection with the Prospectus Supplements;
Use
of Proceeds of Offering
FURTHER
RESOLVED, that the Company be, and hereby is, authorized and directed to transfer certain of the net proceeds received from
the sale of the ATM Shares by the Company in the ATM Offering to effect the transactions under the heading “Use of Proceeds”
in the Prospectus Supplements to be filed in connection with the ATM Offering;
NASDAQ Notification and
Listing
FURTHER
RESOLVED, that the Board approves, in connection with the transactions set forth herein, that the Authorized Officers be authorized
to file one or more notifications of listing of additional shares with the Nasdaq Stock Market with respect to the ATM Shares that may
be issued or issuable, in connection with the transaction documents and to negotiate, execute and deliver any and all papers and agreements,
to pay any fee required, and to do any and all things that may be necessary to effect the listing of the ATM Shares on such exchange;
Blue Sky Approval
FURTHER
RESOLVED, that the Authorized Officers be, and hereby are, authorized in the name and on behalf of the Company to determine
the states in which appropriate action shall be taken to qualify or register all or any part of the ATM Shares;
FURTHER
RESOLVED, that the Authorized Officers are hereby authorized to take any and all action which the Authorized Officers may
deem necessary or advisable in order to effect the registration or qualification (or exemption therefrom) of the ATM Shares under the
Blue Sky or securities laws of any of the states of the United States and in connection therewith, to verify, deliver, file or cause
to be published any applications, reports, consents to service of process, appointments of attorneys to receive service of process and
other papers and instruments which may be required under such laws, and to take any further action which the Authorized Officers may
deem necessary or advisable in order to maintain any such registration or qualification for as long as the Authorized Officers deem necessary
or required by law; and the actions taken by the Authorized Officers of any act in connection with the foregoing matters shall conclusively
establish the Authorized Officers’ authority therefor from the Company and the approval and ratification by the Board of the papers
and instruments so executed and the action so taken;
FURTHER
RESOLVED, that if any state securities administrator shall require certain votes to be adopted by the Board to evidence the
authority conferred upon any such state securities administrator by these votes, the Corporate Secretary or any assistant secretary of
the Company be, and hereby is, authorized and directed, in the name and on behalf of the Company, to prepare and certify the appropriate
form of vote so required, and such votes shall thereupon be incorporated and adopted by reference, to the same extent as if presented
to and adopted by the Board, provided that a copy of any such votes shall be affixed to these votes by the secretary of the Company;
Fees of Counsel, Accountants,
Advisors, Et Cetera
FURTHER
RESOLVED, that the Authorized Officers be, and hereby are, authorized and directed in the name and on behalf of the Company,
to pay such fees and expenses to such counsel, accountants and other advisors, agents or representatives, and to make such expenditures
as the Authorized Officers may deem, or are advised are, necessary, convenient, appropriate, desirable or advisable in connection with
the foregoing;
FURTHER
RESOLVED, that all actions taken, or caused to be taken, by the Authorized Officers with respect to the retention on behalf
of the Company of such counsel, accountants and other advisors, agents or representatives to perform necessary and appropriate services
in connection with the foregoing are ratified, approved and confirmed in all respects;
General Authorizing Resolutions
FURTHER
RESOLVED, that the Authorized Officers of the Company be, and each of them hereby is, authorized, for and on behalf of the
Company, to prepare any press releases or current reports on Form 8-K in connection with the transactions set forth herein or any
other documents or matters deemed necessary or advisable by such Authorized Officers, and to file the same with the SEC;
FURTHER
RESOLVED, that in order to fully carry out the intent and effectuate the purposes of the foregoing resolutions, any of the
Authorized Officers be, and each hereby is, acting alone or with one or more Authorized Officers, authorized and empowered to take all
such further action, and to execute and deliver all such further agreements, certificates, instruments and documents, under its corporate
seal or otherwise, and to pay all such fees and expenses, which shall in his or her or their judgment be necessary, appropriate or advisable
to effectuate the transactions contemplated by the foregoing resolutions;
FURTHER
RESOLVED, that any actions taken by the Authorized Officers prior to the date hereof which would have been authorized by these
resolutions but for the fact that such actions were taken prior to the date hereof be, and hereby are, authorized, ratified, confirmed,
adopted and approved in all respects as the acts and deeds of the Company, as the case may be;
FURTHER
RESOLVED, that electronic or photostatic copies of signatures to this unanimous written consent in lieu of a special meeting
of the Board shall be deemed to be originals and may be relied on to the same extent as the originals;
FURTHER
RESOLVED, that the actions taken by this unanimous written consent in lieu of a special meeting of the Board shall have the
same force and effect as if taken at a special meeting of the Board duly called and constituted pursuant to the Bylaws and the laws of
the State of Delaware; and
FURTHER
RESOLVED, that this unanimous written consent in lieu of a special meeting of the Board may be executed in any number of counterparts,
each of which when so executed and delivered to the Company shall be deemed original, and such counterparts together shall constitute
one and the same instrument.
Exhibit 10.2
OMNIBUS CONSENT TO PRE-PAID ADVANCE AGREEMENTS
This Omnibus Consent to Pre-Paid
Advance Agreements (this “Consent” or “Agreement”) is entered into as of September 13, 2024,
by and between Canoo Inc., a Delaware corporation (the “Company”), and YA II PN, LTD., a Cayman Islands exempt
limited company (the “Investor”), with reference to (1) that certain Pre-Paid Advance Agreement, dated July 20,
2022, by and between the Company and the Investor (as amended, supplemented or other modified from time to time in accordance with its
terms, the “2022 PPA”); (2) that certain Supplemental Agreement, dated March 12, 2024, by and between the
Company and the Investor (as amended, supplemented or other modified from time to time in accordance with its terms, the “March 2024
Supplemental Agreement”); (3) that certain Prepaid Advance Agreement, dated July 19, 2024, by and between the Company
and the Investor (as amended, supplemented or other modified from time to time in accordance with its terms, the “July 2024
PPA”); and (4) that certain Supplemental Agreement, dated August 28, 2024, by and between the Company and the Investor
(as amended, supplemented or other modified from time to time in accordance with its terms, the “August 2024 Supplemental
Agreement”). Collectively, the 2022 PPA, the March 2024 Supplemental Agreement, the July 2024 PPA, the August 2024
Supplemental Agreement, and all other instruments, notes, agreements or other documents or items executed or delivered in connection with
any of the foregoing are referred to as the “Financing Documents.” Capitalized terms not otherwise defined herein have
the same definitions set forth in the July 2024 PPA.
By this Consent, the Company and the Investor
have agreed to the following terms:
| 1. | ATM Offerings. Pursuant to Section 7.15 of the 2022 PPA and Section 7.15 of
the July 2024 PPA, the Company is not permitted to enter into any Variable Rate Transaction without the prior written consent of
the Investor. The Investor hereby consents to the Company undertaking an at-the-market offering with Northland Securities, Inc. (such
offering, the “ATM Offering”) subject to the following conditions: |
| a. | Solely with respect to the first $5 million of gross proceeds received or receivable by the Company (such
proceeds, the “Initial ATM Proceeds”) pursuant to sales of the Company’s common stock, par value $0.0001 per
share, sold under the ATM Offering (such sales up to the Initial ATM Proceeds, the “Initial ATM Sales”), the Company
will retain 100% of the Initial ATM Proceeds; provided that any further sales under the ATM Offering subsequent to the Initial ATM Sales
will require the Investor’s prior written consent, which consent by the Investor to any further sales under the ATM Offering subsequent
to the Initial ATM Sales may be granted at any time by the Investor to the Company via e-mail correspondence. |
| 2. | Effect; Continuing Validity. Except as specifically set forth herein, the terms and
conditions of the Financing Documents shall remain unmodified and are hereby ratified by the parties. The Company acknowledges and agrees
that, except as otherwise expressly provided in this Agreement, all terms, conditions and provisions of the Financing Documents shall
continue in full force and effect and remain unaffected and unchanged. This Agreement in no way acts as a release or relinquishment of,
and in no way affects, the Investor’s rights created by or arising under the Financing Documents. Such rights are hereby ratified,
confirmed, renewed and extended in all respects by the Company. The Financing Documents, and all of the Investor’s rights and remedies
thereunder and the indebtedness represented thereby are hereby recognized, renewed, extended and continued in full force and effect for
the benefit of the Investor. |
| 3. | Miscellaneous. This Agreement shall be governed by and construed in accordance with the laws of
the State of New York. This Agreement may be executed in counterparts, each of which, when so executed, shall be deemed an original, but
all such counterparts, taken together, shall constitute one and the same instrument. Delivery of an executed counterpart of this Agreement
electronically shall be equally as effective as delivery of a manually executed counterpart of this Agreement. No waiver of any provision
of this Agreement shall be effective or enforceable unless made in writing signed by the party waiving any right or privilege hereunder. |
IN
WITNESS WHEREOF, the Company and the Investor have caused this Omnibus Consent to be duly executed by a duly authorized
representative as of the date first written above.
|
COMPANY: |
|
CANOO INC. |
|
|
|
By: |
/s/
Greg Ethridge |
|
Name: Greg Ethridge |
|
Title: Chief
Financial Officer |
|
INVESTOR: |
|
YA II PN, LTD. |
|
|
|
By: Yorkville Advisors Global, LP |
|
Its: Investment Manger |
|
|
|
By: Yorkville Advisors Global II, LLC |
|
Its: General Partner |
|
|
|
By: |
/s/ Troy J. Rillo |
|
Name: Troy
J. Rillo |
|
Title: Authorized Signatory |
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