Exhibit 1.1
EMERALD OIL, INC.
Common Stock
(par value $0.001 per share)
At-The-Market Issuance Sales Agreement
April 2, 2015
MLV & Co. LLC
0000 Xxxxxx xx xxx Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Emerald Oil, Inc., a Delaware
corporation (the “Company”), confirms its agreement (this “Agreement”) with MLV & Co.
LLC, a Delaware limited liability company (“MLV”), as follows:
1. Issuance and Sale
of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions
set forth herein, it may issue and sell through MLV, as sales agent for the Company, shares (the “Placement Shares”)
of the Company’s common stock, par value $0.001 per share (the “Common Stock”); provided, however,
that in no event shall the Company issue or sell through MLV such number or dollar amount of Placement Shares that (a) would cause
the Company or the offering of the Placement Shares to not satisfy the eligibility and transaction requirements for use of Form
S-3 (including, if applicable, Instruction I.B.6. thereof), (b) exceeds the number or dollar amount of shares of Common Stock registered
on the effective Registration Statement (as defined below) pursuant to which the offering is being made, or (c) exceeds the number
of authorized but unissued shares of the Company’s Common Stock (the lesser of (a), (b), and (c), the “Maximum Amount”).
Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth
in this Section 1 on the number or dollar amount of Placement Shares issued and sold under this Agreement shall be the sole
responsibility of the Company and that MLV shall have no obligation in connection with such compliance. MLV and the Company are
sometimes referred to herein individually as a “Party” and collectively as the “Parties.”
The Company has filed with
the Securities and Exchange Commission (the “Commission”), in accordance with the provisions of the Securities
Act of 1933, as amended, and the rules and regulations thereunder (collectively, the “Securities Act”), a registration
statement on Form S-3 (333-192251), including a base prospectus, relating to certain securities of the Company, including the Placement
Shares, to be issued from time to time by the Company pursuant to Rule 415 under the Securities Act, and which incorporates by
reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of
1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange Act”). The Company has
prepared a prospectus supplement to the base prospectus include as part of such registration statement, to be filed by the Company
with the Commission on or before the second business day following the date hereof (or such earlier time as may be required under
the Securities Act), specifically relating to the Placement Shares (the “Prospectus Supplement”). The Company
will furnish to MLV, for use by MLV, copies of the prospectus included as part of such registration statement, as supplemented,
if at all, by the Prospectus Supplement, relating to the Placement Shares. Except where the context otherwise requires, such registration
statement, including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant
to Rule 424(b) under the Securities Act or deemed to be a part of such registration statement pursuant to Rule 430B of
the Securities Act, is herein called the “Registration Statement.” The base prospectus included in the Registration
Statement (the “Base Prospectus”), as it may be supplemented by the Prospectus Supplement, in the form in which
such prospectus and/or Prospectus Supplement is filed by the Company with the Commission pursuant to Rule 424(b) under the
Securities Act is herein called the “Prospectus”. Any reference herein to the Registration Statement, the Prospectus
or any amendment or supplement thereto shall be deemed to refer to and include the documents incorporated by reference therein
(the “Incorporated Documents”), and any reference herein to the terms “amend,” “amendment”
or “supplement” with respect to the Registration Statement or the Prospectus shall be deemed to refer to and include
the filing after the execution hereof of any document with the Commission deemed to be incorporated by reference therein.
For purposes of this Agreement,
all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto, or any Issuer Free Writing
Prospectus (as defined below) (other than any Issuer Free Writing Prospectus that, pursuant to Rule 433, is not required to be
filed with the Commission) shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic
Data Gathering Analysis and Retrieval System, or if applicable, the Interactive Data Electronic Application system when used by
the Commission (collectively, “XXXXX”).
2. Placements.
Each time that the Company wishes to issue and sell Placement Shares hereunder (each, a “Placement”), it will
notify MLV by email notice (or other method mutually agreed to in writing by the Parties) of (i) the number of Placement Shares
to be sold, (ii) the time period during which sales are requested to be made, (iii) any limitation on the number of Placement Shares
that may be sold in any one day or in any one transaction, and (iv) any minimum price below which sales may not be made (a “Placement
Notice”), the form of which is attached hereto as Schedule 1. The Placement Notice shall originate from any of
the individuals from the Company set forth on Schedule 3 (with a copy to each of the other individuals from the Company
listed on such schedule), and shall be addressed to each of the individuals from MLV set forth on Schedule 3, as such Schedule
3 may be amended from time to time. The Placement Notice shall be effective unless and until (i) MLV, acting in good faith,
declines to accept the terms contained therein, (ii) the entire amount of the Placement Shares thereunder have been sold, (iii) the
Company suspends or terminates the Placement Notice or (iv) this Agreement has been terminated under the provisions of Section
13. The amount of any discount, commission or other compensation to be paid by the Company to MLV in connection with the sale
of the Placement Shares shall be calculated in accordance with the terms set forth in Schedule 2. It is expressly acknowledged
and agreed that neither the Company nor MLV will have any obligation whatsoever with respect to a Placement or any Placement Shares
unless and until the Company delivers a Placement Notice to MLV and MLV does not decline such Placement Notice pursuant to the
terms set forth above, and then only upon the terms specified therein and herein. In the event of a conflict between the terms
of Sections 2, 3, and 4 of this Agreement and the terms of a Placement Notice, the terms of the Placement
Notice will control.
3. Sale of Placement
Shares by MLV. Subject to the terms and conditions of this Agreement, MLV, for the period specified in the Placement Notice,
will use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable state and federal
laws, rules and regulations and the rules of the NYSE MKT LLC (the “Exchange”), to sell the Placement Shares
up to the amount specified, and otherwise in accordance with the terms of such Placement Notice. MLV will provide written confirmation
to the Company no later than the opening of the Trading Day (as defined below) immediately following the Trading Day on which it
has made sales of Placement Shares hereunder setting forth the number of Placement Shares sold on such day, the compensation payable
by the Company to MLV pursuant to Section 2 with respect to such sales, and the Net Proceeds (as defined below) payable
to the Company, with an itemization of the deductions made by MLV (as set forth in Section 5(a)) from the gross proceeds
that it receives from such sales. Subject to the terms of the Placement Notice, MLV may sell Placement Shares by any method permitted
by law deemed to be an “at the market” offering as defined in Rule 415 of the Securities Act, including without
limitation sales made directly on the Exchange, on any other existing trading market for the Common Stock or to or through a market
maker. Subject to the terms of a Placement Notice, MLV may also sell Placement Shares by any other method permitted by law, including
but not limited to in negotiated transactions, with the Company’s consent. The Company acknowledges and agrees
that (i) there can be no assurance that MLV will be successful in selling Placement Shares, (ii) MLV will incur no liability or
obligation to the Company or any other person or entity if it does not sell Placement Shares for any reason other than a failure
by MLV to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and
regulations to sell such Placement Shares as required under this Agreement and (iii) MLV shall be under no obligation to purchase
Placement Shares on a principal basis pursuant to this Agreement, except as otherwise agreed by MLV and the Company. “Trading
Day” means any day on which Common Stock is purchased and sold on the Exchange.
4. Suspension of
Sales. The Company (for any reason) or MLV (acting in good faith) may, upon notice (a “Suspension Notice”)
to the other Party in writing (including by email correspondence to each of the individuals of the other Party set forth on Schedule
3, if receipt of such correspondence is actually acknowledged by any of the individuals to whom the notice is sent, other than
via auto-reply) or by telephone (confirmed immediately by verifiable facsimile transmission or email correspondence to each of
the individuals of the other Party set forth on Schedule 3 ), suspend this offering and any sale of Placement Shares for a period
of time (a “Suspension Period”); provided, however, that such suspension shall not affect or impair any party’s
obligations with respect to any Placement Shares sold hereunder prior to the receipt of such notice. Each of the Parties agrees
that no such notice under this Section 4 shall be effective against any other Party unless it is made to one of the individuals
named on Schedule 3 hereto, as such Schedule may be amended from time to time. During a Suspension Period, the Company shall
not issue any Placement Notices and MLV shall not sell any Placement Shares hereunder. A Suspension Period shall end five Trading
Days after the Party which issued the Suspension Notice notifies the other Party in writing that it wishes to end the Suspension
Period. Notwithstanding anything to the contrary in this Section 4 or this Agreement, no sales of Placement Shares shall
take place, the Company shall not request the sales of any Placement Shares that would be sold and MLV shall not be obligated to
sell or offer to sell any Placement Shares during any period in which the Company is in possession of material non-public information
with respect to the Company.
5. Settlement.
(a) Settlement of Placement Shares. Unless otherwise specified in the applicable Placement
Notice, settlement for sales of Placement Shares will occur on the third (3rd) Trading Day (or such earlier day as
is industry practice for regular-way trading) following the date on which such respective sales are made (each, a
“Settlement Date”). The amount of proceeds to be delivered to the Company on a Settlement Date against
receipt of the Placement Shares sold (the “Net Proceeds”) will be equal to the aggregate sales price
received by MLV at which such Placement Shares were sold, after deduction for (i) MLV’s commission, discount or other
compensation for such sales payable by the Company pursuant to Section 2 hereof, and (ii) any transaction fees imposed
by any governmental or self-regulatory organization in respect of such sales.
(b) Delivery
of Placement Shares. On or before each Settlement Date, the Company will, or will cause its transfer agent to, electronically
transfer the Placement Shares being sold by crediting MLV’s or its designee’s account (provided MLV shall have given
the Company written notice of such designee a reasonable period of time prior to the Settlement Date) at The Depository Trust
Company through its Deposit and Withdrawal at Custodian System or by such other means of delivery as may be mutually agreed upon
by the parties hereto which in all cases shall be freely tradable, transferable, registered shares in good deliverable form. On
each Settlement Date, MLV will deliver the related Net Proceeds in same day funds to an account designated by the Company on,
or prior to, the Settlement Date. The Company agrees that if the Company, or its transfer agent (if applicable), defaults in its
obligation to deliver Placement Shares on a Settlement Date through no fault of MLV, in addition to and in no way limiting the
rights and obligations set forth in Section 11(a) hereto, the Company will (i) hold MLV 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 or its transfer agent (if applicable) and (ii) pay to MLV (without duplication) any commission, discount, or other
compensation to which it would otherwise have been entitled absent such default.
(c) Limitations on
Offering Size. Under no circumstances shall the Company cause or request the offer or sale of any Placement Shares if,
after giving effect to the sale of such Placement Shares, the aggregate number of Placement Shares sold pursuant to this Agreement
would exceed the lesser of (i) together with all sales of Placement Shares under this Agreement, the Maximum Amount and (ii)
the amount authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, a
duly authorized committee thereof or a duly authorized executive committee, and notified to MLV in writing. Under no circumstances
shall the Company cause or request the offer or sale of any Placement Shares pursuant to this Agreement at a price lower than the
minimum price authorized from time to time by the Company’s board of directors, a duly authorized committee thereof or a
duly authorized executive committee, and notified to MLV in writing.
6. Representations
and Warranties of the Company. The Company represents and warrants to, and agrees with MLV that as of the date of this Agreement
and as of each Applicable Time (as defined in Section 25 below), unless such representation, warranty or agreement specifies
a different time or times and except as may be disclosed in the Registration Statement or a Disclosure Schedule delivered in connection
herewith:
(a) Registration Statement
and Prospectus. The Company and, assuming no act or omission on the part of MLV that would make such statement untrue, the
transactions contemplated by this Agreement meet the requirements for and comply with the conditions for the use of Form S-3 under
the Securities Act. The Registration Statement has been filed with the Commission and has been declared effective under the Securities
Act by the Commission. The Prospectus Supplement will name MLV, as an underwriter acting as the agent that the Company might engage,
in the section entitled “Plan of Distribution.” The Company has not received, and has no notice of, any order of the
Commission preventing or suspending the use of the Registration Statement, or threatening or instituting proceedings for that purpose.
The Registration Statement and the offer and sale of Placement Shares as contemplated hereby meet the requirements of Rule 415
under the Securities Act and comply in all material respects with said Rule. Any statutes, regulations, contracts or other documents
that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration
Statement have been so described or filed. Copies of the Registration Statement, the Prospectus, and any such amendments or supplements
and the Incorporated Documents that were filed with the Commission on or prior to the date of this Agreement have been delivered,
or are available through XXXXX, to MLV and its counsel. The Company has not distributed and, prior to the later to occur of each
Settlement Date and completion of the distribution of the Placement Shares, will not distribute any offering material in connection
with the offering or sale of the Placement Shares other than the Registration Statement and the Prospectus and any Issuer Free
Writing Prospectus to which MLV has consented (such consent not to be unreasonably withheld). Except as disclosed in the Registration
Statement, including the Incorporated Documents, the Company has not, in the 12 months preceding the date hereof, received notice
from the Exchange to the effect that the Company is not in compliance with the listing or maintenance requirements.
(b) No Misstatement
or Omission. The Registration Statement, when it became effective, and the Prospectus, and any amendment or supplement thereto,
on the date of such Prospectus or amendment or supplement, conformed or will conform in all material respects with the requirements
of the Securities Act. At each Settlement Date, the Registration Statement and the Prospectus, as of such date, will conform in
all material respects with the requirements of the Securities Act. The Registration Statement, when it became effective, did not
contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading. The Prospectus and any amendment or supplement thereto, on the date thereof and at each
Applicable Time (defined below), did not or will not include an untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. The
Incorporated Documents did not and, when filed with the Commission, will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated in such document or necessary to make the statements in such document, in the
light of the circumstances under which they were made, not misleading. The foregoing shall not apply to statements in, or omissions
from, any such document made in reliance upon, and in conformity with, information furnished to the Company by MLV specifically
for use in the preparation thereof.
(c) Conformity with
Securities Act and Exchange Act. The Incorporated Documents, when such documents were or are filed with the Commission under
the Securities Act or the Exchange Act or became or become effective under the Securities Act, as the case may be, conformed or
will conform in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable.
(d) Financial Information.
The consolidated financial statements of the Company included or incorporated by reference in the Registration Statement, the Prospectus
and the Issuer Free Writing Prospectuses, if any, together with the related notes and schedules, complied as to form in all material
respects with applicable requirements of the Securities Act and the Exchange Act, as applicable, as in effect as of the time of
filing. Such financial statements have been prepared in accordance with generally accepted accounting principles, consistently
applied, during the periods covered thereby (except (i) as may be otherwise indicated in such financial statements or the notes
thereto, or (ii) in the case of unaudited interim financial statements, to the extent they may exclude footnotes or may be condensed
or summary statements) and fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries
(as defined below) as of the dates indicated and the consolidated results of operations and cash flows of the Company and its Subsidiaries
for the periods specified (subject, in the case of unaudited statements, to normal year-end audit adjustments which will not be
material, either individually or in the aggregate); the other financial and statistical data with respect to the Company and the
Subsidiaries contained or incorporated by reference in the Registration Statement, the Prospectus and the Issuer Free Writing Prospectuses,
if any, are in all material respects accurately and fairly presented and true and correct; there are no financial statements (historical
or pro forma) that are required to be included or incorporated by reference in the Registration Statement or the Prospectus that
are not included or incorporated by reference as required; the Company and its Subsidiaries do not have any material liabilities
or obligations, direct or contingent (including any off-balance sheet obligations), not described in the Registration Statement
(including the exhibits thereto), or the Prospectus that are required to be described in the Registration Statement or the Prospectus
(including Exhibits thereto and Incorporated Documents); and all disclosures contained or incorporated by reference in the Registration
Statement, the Prospectus and the Issuer Free Writing Prospectuses, if any, regarding “non-GAAP financial measures”
(as such term is defined by the rules and regulations of the Commission) comply in all material respects with Regulation G of the
Exchange Act and Item 10 of Regulation S-K under the Securities Act, to the extent applicable.
(e) Conformity with
XXXXX Filing. The Prospectus delivered to MLV for use in connection with the sale of the Placement Shares pursuant to this
Agreement will be identical to the versions of the Prospectus created to be transmitted to the Commission for filing via XXXXX,
except to the extent permitted by Regulation S-T.
(f) Organization.
The Company and each of its Subsidiaries are, and will be, duly organized, validly existing as a corporation, limited partnership,
limited liability company or other legal entity and in good standing under the laws of their respective jurisdictions of organization.
The Company and each of its Subsidiaries are, and will be, duly qualified as a foreign corporation for transaction of business
and in good standing under the laws of each other jurisdiction in which their respective ownership or lease of property or the
conduct of their respective businesses requires such qualification, and have all corporate power and authority necessary to own
or hold their respective properties and to conduct their respective businesses as described in the Registration Statement and the
Prospectus, except where the failure to be so qualified or in good standing or have such power or authority would not, individually
or in the aggregate, have a material adverse effect or would reasonably be expected to have a material adverse effect on the assets,
business, operations, earnings, properties, condition (financial or otherwise), prospects, stockholders’ equity or results
of operations of the Company and the Subsidiaries (as defined below) (a “Material Adverse Effect”).
(g) Subsidiaries.
The subsidiaries set forth on Schedule 4 (collectively, the “Subsidiaries”), are the Company’s
only significant subsidiaries (as such term is defined in Rule 1-02 of Regulation S-X promulgated by the Commission) as of the
date hereof. Except as set forth in the Registration Statement and in the Prospectus, the Company owns, directly or indirectly,
all of the equity interests of the Subsidiaries free and clear of any lien, charge, security interest, encumbrance, right of first
refusal or other restriction, and all the equity interests of the Subsidiaries are validly issued and, to the extent applicable,
are fully paid, nonassessable and free of preemptive and similar rights.
(h) No Violation or
Default. Neither the Company nor any of its Subsidiaries is (i) in violation of its charter or by-laws or similar organizational
documents; (ii) in default, and no event has occurred that, with notice or lapse of time or both, would constitute such a
default, in the due performance or observance of any term, covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries is bound or to which any of the property or assets of the Company or any of its Subsidiaries
are subject; or (iii) in violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator
or governmental or regulatory authority, except, in the case of each of clauses (ii) and (iii) above, for any such violation or
default that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Except as described
in the Prospectus or the Incorporated Documents, to the Company’s knowledge, no other party under any material contract or
other agreement to which it or any of its Subsidiaries is a party is in default in any respect thereunder where such default would
reasonably be expected to have a Material Adverse Effect.
(i) No
Material Adverse Change. Except as set forth in or otherwise contemplated by the Registration Statement or the Prospectus,
since the date of the most recent financial statements of the Company included or incorporated by reference in the Registration
Statement and the Prospectus (i) there has not been and will not have been any change in the capital stock of the Company (except
for changes in the number of outstanding shares of Common Stock of the Company due to the issuance of shares upon the exercise
or conversion of securities exercisable for, or convertible into, shares of Common Stock outstanding on the date hereof) or long-term
debt of the Company or of its Subsidiaries or any dividend or distribution of any kind declared, set aside for payment, paid or
made by the Company on any class of capital stock, that has resulted in or that would reasonably be expected to result in a Material
Adverse Effect; (ii) other than this Agreement, neither the Company nor its Subsidiaries have entered or will enter into any transaction
or agreement that is material to the Company and its Subsidiaries taken as a whole or incurred or will incur any liability or obligation,
direct or contingent, that is material to the Company and its Subsidiaries taken as a whole; (iii) there has not been any Material
Adverse Effect; and (iv) neither the Company nor its Subsidiaries have sustained any material loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor disturbance or dispute or
any action, order or decree of any court or arbitrator or governmental or regulatory authority.
(j) Capitalization.
The issued and outstanding shares of capital stock of the Company have been validly issued, are fully paid and non-assessable.
The Company has an authorized, issued and outstanding capitalization as set forth in the Registration Statement and the Prospectus
as of the dates referred to therein pursuant to agreements disclosed in the Registration Statement and the Prospectus, or changes
in the number of outstanding shares of Common Stock of the Company due to the issuance of shares upon the exercise or conversion
of securities exercisable for, or convertible into, shares of Common Stock outstanding on the date hereof or as a result of the
issuance of Placement Shares) and such authorized capital stock conforms to the description thereof set forth in the Registration
Statement and the Prospectus. The description of the Common Stock in the Registration Statement and the Prospectus is complete
and accurate in all material respects. Except as disclosed in or contemplated by the Registration Statement or the Prospectus,
as of the date referred to therein, the Company did not have outstanding any options to purchase, or any rights or warrants to
subscribe for, or any securities or obligations convertible into, or exchangeable for, or any contracts or commitments to issue
or sell, any shares of capital stock or other securities.
(k) Authorization;
Enforceability. The Company has full legal right, power and authority to enter into this Agreement and perform the transactions
contemplated hereby. This Agreement has been duly authorized, executed and delivered by the Company and is a legal, valid and binding
agreement of the Company enforceable in accordance with its terms, except to the extent that (i) enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general
equitable principles and (ii) the indemnification and contribution provisions of Section 11 hereof may be limited by federal
or state securities laws and public policy considerations in respect thereof.
(l) Authorization of
Placement Shares. The Placement Shares, when issued and delivered pursuant to the terms approved by the board of directors
of the Company or a duly authorized committee thereof, or a duly authorized executive committee, against payment therefor as provided
herein, will be duly and validly authorized and issued and fully paid and nonassessable, free and clear of any pledge, lien, encumbrance,
security interest or other claim (other than any pledge, lien, encumbrance, security interest or other claim arising from an act
or omission of MLV or a purchaser), including any statutory or contractual preemptive rights, resale rights, rights of first refusal
or other similar rights, and will be registered pursuant to Section 12 of the Exchange Act. The Placement Shares, when issued,
will conform in all material respects to the description thereof set forth in or incorporated into the Prospectus.
(m) No Consents Required.
No consent, approval, authorization, order, registration or qualification of or with any court or arbitrator or any governmental
or regulatory authority is required for the execution, delivery and performance by the Company of this Agreement, and the issuance
and sale by the Company of the Placement Shares as contemplated hereby, except for the registration of the offering of the Placement
Shares under the Securities Act, the filing of the Prospectus with the Commission and such consents, approvals, authorizations,
orders and registrations or qualifications as may be required under applicable state securities laws or by the by-laws and rules
of the Financial Industry Regulatory Authority (“FINRA”) or the Exchange in connection with the sale of the
Placement Shares by MLV.
(n) No Preferential
Rights. Except as set forth in or contemplated by the Registration Statement and the Prospectus, (i) no person, as such
term is defined in Rule 1-02 of Regulation S-X promulgated under the Securities Act (each, a “Person”), has
the right, contractual or otherwise, to cause the Company to issue or sell to such Person any shares of Common Stock or shares
of any other capital stock or other securities of the Company (other than upon the exercise of options or warrants to purchase
Common Stock or upon the exercise of options that may be granted from time to time under the Company’s stock option plans),
(ii) no Person has any preemptive rights, rights of first refusal, or any other rights (whether pursuant to a “poison
pill” provision or otherwise) to purchase any shares of Common Stock or shares of any other capital stock or other securities
of the Company from the Company that have not been duly waived with respect to the offering contemplated hereby, (iii) no
Person has the right to act as an underwriter or as a financial advisor to the Company in connection with the offer and sale of
the Placement Shares, and (iv) no Person has the right, contractual or otherwise, to require the Company to register under
the Securities Act any shares of Common Stock or shares of any other capital stock or other securities of the Company, or to include
any such shares or other securities in the Registration Statement or the offering contemplated thereby, whether as a result of
the filing or effectiveness of the Registration Statement or the sale of the Placement Shares as contemplated thereby or otherwise,
except for such rights as have been waived on or prior to the date hereof.
(o) Independent Public
Accountant. BDO USA, LLP or another independent registered public accounting firm selected by the Company (the “Accountant”),
whose report on the consolidated financial statements of the Company is filed with the Commission as part of the Company’s
most recent Annual Report on Form 10-K and incorporated into the Registration Statement and the Prospectus, are and, during the
periods covered by their report, were an independent registered public accounting firm within the meaning of the Securities Act
and the Public Company Accounting Oversight Board (United States). To the Company’s knowledge, the Accountant is not in violation
of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”) with respect
to the Company.
(p) Enforceability
of Agreements. To the Company’s knowledge, all agreements between the Company and third parties expressly referenced
in the Prospectus, other than such agreements that have expired by their terms or whose termination is disclosed in documents filed
by the Company with the Commission, are legal, valid and binding obligations of the Company enforceable in accordance with their
respective terms, except to the extent that (i) enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting creditors’ rights generally and by general equitable principles and (ii) the indemnification
provisions of certain agreements may be limited be federal or state securities laws or public policy considerations in respect
thereof, except for any unenforceability that, individually or in the aggregate, would not reasonably be expected to have a Material
Adverse Effect.
(q) No Litigation.
Except as set forth in the Registration Statement or the Prospectus, there are no legal, governmental or regulatory actions, suits
or proceedings pending, nor, to the Company’s knowledge, any legal, governmental or regulatory investigations, to which the
Company or a Subsidiary is a party or to which any property of the Company or any of its Subsidiaries is the subject that, individually
or in the aggregate, if determined adversely to the Company or any of its Subsidiaries, would reasonably be expected to have a
Material Adverse Effect or materially and adversely affect the ability of the Company to perform its obligations under this Agreement.
To the Company’s knowledge, no such actions, suits or proceedings are threatened or contemplated by any governmental or regulatory
authority or threatened by others that, individually or in the aggregate, if determined adversely to the Company or any of its
Subsidiaries, would reasonably be expected to have a Material Adverse Effect. There are no current or pending legal, governmental
or regulatory actions, suits, proceedings or, to the Company’s knowledge, investigations that are required under the Securities
Act to be described in the Prospectus that are not described in the Prospectus.
(r) Licenses and Permits.
Except as set forth in the Registration Statement or the Prospectus, the Company and each of its Subsidiaries possess or have obtained,
all licenses, certificates, consents, orders, approvals, permits and other authorizations issued by, and have made all declarations
and filings with, the appropriate federal, state, local or foreign governmental or regulatory authorities that are necessary for
the ownership or lease of their respective properties or the conduct of their respective businesses as described in the Registration
Statement and the Prospectus (the “Permits”), except where the failure to possess, obtain or make the same would
not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Except as disclosed in the Registration
Statement or the Prospectus, neither the Company nor any of its Subsidiaries have received written notice of any proceeding relating
to revocation or modification of any such Permit or has any reason to believe that such Permit will not be renewed in the ordinary
course, except where the failure to obtain any such renewal would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect.
(s) No Material Defaults.
Neither the Company nor any of the Subsidiaries has defaulted on any installment on indebtedness for borrowed money or on any rental
on one or more long-term leases, which defaults, individually or in the aggregate, would reasonably be expected to have a Material
Adverse Effect. The Company has not filed a report pursuant to Section 13(a) or 15(d) of the Exchange Act since the filing of its
last Annual Report on Form 10-K, indicating that it (i) has failed to pay any dividend or sinking fund installment on preferred
stock or (ii) has defaulted on any installment on indebtedness for borrowed money or on any rental on one or more long-term
leases, which defaults, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.
(t) Certain Market
Activities. Neither the Company nor any of the Subsidiaries, nor any of their respective directors, officers or controlling
persons has taken, directly or indirectly, any action designed, or that has constituted or might reasonably be expected to cause
or result in, under the Exchange Act or otherwise, the stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Placement Shares.
(u) Broker/Dealer Relationships.
Neither the Company nor any of its Subsidiaries (i) is required to register as a “broker” or “dealer”
in accordance with the provisions of the Exchange Act or (ii) directly or indirectly through one or more intermediaries, controls
or is a “person associated with a member” or “associated person of a member” (within the meaning set forth
in the FINRA Manual).
(v) No
Reliance. The Company has not relied upon MLV or legal counsel for MLV for any legal, tax or accounting advice in connection
with the offering and sale of the Placement Shares.
(w) Taxes. The
Company and each of its Subsidiaries have filed all federal, state, local and foreign tax returns which have been required to be
filed and paid all taxes shown thereon through the date hereof, to the extent that such taxes have become due and are not being
contested in good faith, except where the failure to do so would not reasonably be expected to have a Material Adverse Effect.
Except as otherwise disclosed in or contemplated by the Registration Statement or the Prospectus, no tax deficiency has been determined
adversely to the Company or any of its Subsidiaries which has had, or would reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect. The Company has no knowledge of any federal, state or other governmental tax deficiency,
penalty or assessment which has been or might be asserted or threatened against it which would have a Material Adverse Effect.
(x) Title
to Real and Personal Property. Except as set forth in the Registration Statement or the Prospectus, the Company and each of
its Subsidiaries have (i) defensible title to all of its oil, gas and mineral leases or mineral interests (including oil and gas
xxxxx, producing leasehold interests and appurtenant personal property), and title investigations having been carried out by the
Company or each of its Subsidiaries consistent with the reasonable practice in the oil and gas industry in the areas in which the
Company and each of its Subsidiaries operate and (ii) good and valid title to all other items of real property and to all personal
property described in the Registration Statement or Prospectus as being owned by them that are material to the businesses of the
Company or such Subsidiary, in each case free and clear of all liens, encumbrances and claims, except (A) those that do not materially
interfere with the use made and proposed to be made of such property by the Company and any of its Subsidiaries or would not reasonably
be expected, individually or in the aggregate, to have a Material Adverse Effect, (B) royalties, overriding royalties and other
similar burdens under oil and gas leases, (C) easements, restrictions, rights-of-way and other matters that commonly affect property,
(D) those securing taxes and other governmental charges, or claims of materialmen, mechanics and similar persons, not yet due and
payable and (E) those under gas sales contracts, geophysical exploration agreements, operating agreements, farmout agreements,
participation agreements, unitization, pooling and commutation agreements, declarations and orders and gas sales contracts securing
payment of amounts not yet due and payable and of a scope and nature customary in the oil and gas industry. Any real property described
in the Registration Statement or Prospectus as being leased by the Company and any of its Subsidiaries is held by them under valid,
existing and enforceable leases, free and clear of all liens, encumbrances and claims, except those that (1) do not materially
interfere with the use made or proposed to be made of such property by the Company or any of its Subsidiaries or (2) would not
be reasonably expected, individually or in the aggregate, to have a Material Adverse Effect.
(y) Reserve Reports.
The information underlying the estimates of the Company’s reserves that was supplied by Netherland, Xxxxxx & Associates,
Inc. (the “Reserve Engineers”), for the purposes of preparing the reserve reports and estimates of the proved
reserves of the Company disclosed in the Registration Statement and the Prospectus, including production and costs of operation,
were true and correct in all material respects as of the date or dates such information was referenced, and such information was
prepared in accordance with customary industry practices. The estimates of such proved reserves and standardized measure as described
in the Registration Statement and the Prospectus and reflected in the reports referenced therein have been prepared in a manner
that complies in all material respects with the applicable requirements of the rules under the Securities Act with respect to such
estimates.
(z) Intellectual Property. Except as set forth in the Registration Statement or the
Prospectus, to the Company’s knowledge, the Company and its Subsidiaries own or possess adequate enforceable rights to
use all patents, patent applications, trademarks (both registered and unregistered), service marks, trade names, trademark
registrations, service xxxx registrations, copyrights, licenses and know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or procedures) (collectively, the “Intellectual
Property”), necessary for the conduct of their respective businesses as conducted as of the date hereof, except to
the extent that the failure to own or possess adequate rights to use such Intellectual Property would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect. Except as disclosed in writing to MLV, the Company
and any of its Subsidiaries have not received any written notice of any claim of infringement or conflict which
asserted Intellectual Property rights of others, which infringement or conflict, if the subject of an unfavorable decision,
would result in a Material Adverse Effect. There are no pending, or to the Company’s knowledge, threatened judicial
proceedings or interference proceedings against the Company or its Subsidiaries challenging the Company’s or its
Subsidiaries’ rights in or to or the validity of the scope of any of the Company’s or its Subsidiaries’
material patents, patent applications or proprietary information; to the Company’s knowledge, no other entity or
individual has any right or claim in any of the Company’s or its Subsidiaries’ owned, material patents, patent
applications or any patent to be issued therefrom by virtue of any contract, license or other agreement entered into between
such entity or individual and the Company or a Subsidiary or by any non-contractual obligation of the Company or a
Subsidiary, other than by written licenses granted by the Company or a Subsidiary. The Company and its Subsidiaries have not
received any written notice of any claim challenging the rights of the Company or a Subsidiary in or to any Intellectual
Property owned, licensed or optioned by the Company or such Subsidiary which claim, if the subject of an
unfavorable decision, would result in a Material Adverse Effect.
(aa) Environmental
Laws. Except as set forth in the Registration Statement or the Prospectus, the Company and its Subsidiaries (i) are in compliance
with any and all applicable federal, state, local and foreign laws, rules, regulations, decisions and orders relating to the protection
of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (collectively,
“Environmental Laws”); (ii) have received and
are in compliance with all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct
their respective businesses as described in the Registration Statement and the Prospectus; and (iii) have not received notice of
any actual or potential liability for the investigation or remediation of any disposal or release of hazardous or toxic substances
or wastes, pollutants or contaminants, except, in the case of any of clauses (i), (ii) or (iii) above, for any such failure to
comply or failure to receive required permits, licenses, other approvals or liability as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. Except as set forth in the Registration Statement or the Prospectus,
there are no costs or liabilities arising under Environmental Laws with respect to the operation of the Company’s and each
of its Subsidiaries’ oil and gas properties (including without limitation, any capital, or operating expenditures required
for clean-up or closure of the properties, compliance with Environmental Laws, any permit, license or approval or any related legal
constraints or operating activities, and any potential liabilities of third parties assumed under contract by the Company or any
of its Subsidiaries) that would reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
(bb) Disclosure Controls.
The Company maintains systems of internal accounting controls designed to provide reasonable assurance that (i) transactions
are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset
accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization;
and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences. Except as disclosed in the Registration Statement and the Prospectus, since the
end of the Company’s most recent audited fiscal year, there has been (i) no material weakness in the Company’s
internal control over financial reporting (whether or not remediated) and (ii) no change in the Company’s internal control
over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal
control over financial reporting. The Company has established disclosure controls and procedures (as defined in Exchange Act Rules
13a-15 and 15d-15) for the Company and designed such disclosure controls and procedures to ensure that material information relating
to the Company and each of its Subsidiaries is made known to the certifying officers by others within those entities, particularly
during the period in which the Company’s Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may be,
is being prepared. The Company’s certifying officers have evaluated the effectiveness of the Company’s disclosure controls
and procedures as of the end of the period covered by the most recent periodic report filed by the Company with the Commission
(such date, the “Evaluation Date”). The Company presented in such periodic report the conclusions of the certifying
officers about the effectiveness of the disclosure controls and procedures based on their evaluations as of the Evaluation Date.
(cc) Xxxxxxxx-Xxxxx.
To the knowledge of the Company, there is and has been no failure on the part of the Company or any of the Company’s directors
or officers, in their capacities as such, to comply with any applicable provisions of the Xxxxxxxx-Xxxxx Act and the rules and
regulations promulgated thereunder. Each of the principal executive officer and the principal financial officer of the Company
(or each former principal executive officer of the Company and each former principal financial officer of the Company as applicable)
has made all certifications required by Sections 302 and 906 of the Xxxxxxxx-Xxxxx Act with respect to all reports, schedules,
forms, statements and other documents required to be filed by it or furnished by it to the Commission. For purposes of the preceding
sentence, “principal executive officer” and “principal financial officer” shall have the meanings given
to such terms in the Xxxxxxxx-Xxxxx Act.
(dd) Finder’s
Fees. Neither the Company nor any of the Subsidiaries has incurred any liability for any finder’s fees, brokerage commissions
or similar payments in connection with the transactions herein contemplated, except as may otherwise exist with respect to MLV
pursuant to this Agreement.
(ee) Labor Disputes.
No labor disturbance by or dispute with employees of the Company or any of its Subsidiaries exists or, to the knowledge of the
Company, is threatened which would reasonably be expected to result in a Material Adverse Effect
(ff) Investment Company
Act. Neither the Company nor any of the Subsidiaries is or, after giving effect to the offering and sale of the Placement Shares,
will be an “investment company” or an entity “controlled” by an “investment company,” as such
terms are defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”).
(gg) Operations.
The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance with applicable financial
record keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money
laundering statutes of all jurisdictions to which the Company or its Subsidiaries are subject, the rules and regulations thereunder
and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency having
jurisdiction over the Company (collectively, the “Money Laundering Laws”), except as would not reasonably be
expected to result in a Material Adverse Effect; and no action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of its Subsidiaries with respect to the Money Laundering Laws
is pending or, to the knowledge of the Company, threatened.
(hh) Off-Balance Sheet
Arrangements. There are no transactions, arrangements and other relationships between and/or among the Company, and/or, to
the knowledge of the Company, any of its affiliates and any unconsolidated entity, including, but not limited to, any structural
finance, special purpose or limited purpose entity (each, an “Off Balance Sheet Transaction”) that could reasonably
be expected to affect materially the Company’s liquidity or the availability of or requirements for its capital resources,
including those Off Balance Sheet Transactions described in the Commission’s Statement about Management’s Discussion
and Analysis of Financial Conditions and Results of Operations (Release Nos. 33-8056; 34-45321; FR-61), required to be described
in the Prospectus which have not been described as required.
(ii) Underwriter
Agreements. The Company is not a party to any agreement with an agent or underwriter for any other “at-the-market”
or continuous equity transaction.
(jj) ERISA. To
the knowledge of the Company, (i) each material employee benefit plan, within the meaning of Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended (“ERISA”), that is maintained, administered or contributed to by the
Company or any of its Subsidiaries (other than a Multiemployer Plan, within the meaning of Section 3(37) of ERISA) for employees
or former employees of the Company and any of its Subsidiaries has been maintained in compliance with its terms and the requirements
of any applicable statutes, orders, rules and regulations, including but not limited to ERISA and the Internal Revenue Code of
1986, as amended (the “Code”); (ii) no prohibited transaction, within the meaning of Section 406 of ERISA or
Section 4975 of the Code, has occurred with respect to any such plan (excluding transactions effected pursuant to a statutory or
administrative exemption); and (iii) for each such plan that is subject to the funding rules of Section 412 of the Code or Section
302 of ERISA, no “accumulated funding deficiency” as defined in Section 412 of the Code has been incurred, whether
or not waived, and the fair market value of the assets of each such plan (excluding for these purposes accrued but unpaid contributions)
equals or exceeds the present value of all benefits accrued under such plan determined using reasonable actuarial assumptions,
other than, in the case of (i), (ii) and (iii) above, as would not reasonably be expected to have a Material Adverse Effect.
(kk) Margin Rules.
Neither the issuance, sale and delivery of the Placement Shares nor the application of the proceeds thereof by the Company as described
in the Registration Statement and the Prospectus will violate Regulation T, U or X of the Board of Governors of the Federal Reserve
System or any other regulation of such Board of Governors.
(ll) Insurance.
The Company and each of its Subsidiaries carry, or are covered by, insurance in such amounts and covering such risks as the Company
and each of its Subsidiaries reasonably believe are adequate for the conduct of their properties and as is customary for companies
of similar size engaged in similar businesses in similar industries.
(mm) No Improper Practices.
Neither the Company nor any of its Subsidiaries or controlled affiliates, nor any director or officer, nor, to the Company’s
knowledge, any employee, agent or representative of the Company or of any of its Subsidiaries or controlled affiliates acting on
behalf of the Company or any of its Subsidiaries or controlled affiliates, has taken any action in furtherance of an offer, payment,
promise to pay, or authorization or approval of the payment or giving of money, property, gifts or anything else of value, directly
or indirectly, to any “government official” (including any officer or employee of a government or 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) to improperly influence official
action or secure an improper advantage for the Company; and the Company and its Subsidiaries or controlled affiliates have conducted
their businesses in compliance with applicable anti-corruption laws and have instituted and maintained policies and procedures
designed to promote and achieve compliance with such laws.
(nn) Status Under the
Securities Act. The Company was not and is not an ineligible issuer as defined in Rule 405 under the Securities Act at the
times specified in Rules 164 and 433 under the Securities Act in connection with the offering of the Placement Shares.
(oo) No Misstatement
or Omission in an Issuer Free Writing Prospectus. Each Issuer Free Writing Prospectus, as of its issue date and as of each
Applicable Time (as defined in Section 25 below), did not, does not and will not include any information that conflicted,
conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any incorporated
document deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements
in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the
Company by MLV specifically for use therein.
(pp) No Conflicts.
Neither the execution of this Agreement, nor the issuance, offering or sale of the Placement Shares, nor the consummation of any
of the transactions contemplated herein and therein, nor the compliance by the Company with the terms and provisions hereof and
thereof will conflict with, or will result in a breach of, any of the terms and provisions of, or has constituted or will constitute
a default under, or has resulted in or will result in the creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Company pursuant to the terms of any contract or other agreement to which the Company may be bound or to which
any of the property or assets of the Company is subject, except (i) such conflicts, breaches or defaults as may have been waived
and (ii) such conflicts, breaches and defaults that would not reasonably be expected to have a Material Adverse Effect; nor will
such action result (x) in any violation of the provisions of the organizational or governing documents of the Company, or (y) in
any material violation of the provisions of any statute or any order, rule or regulation applicable to the Company or of any court
or of any federal, state or other regulatory authority or other government body having jurisdiction over the Company, except where
such violation would not reasonably be expected to have a Material Adverse Effect.
(qq) Stock Transfer
Taxes. On each Settlement Date, all stock transfer or other taxes (other than income taxes) which are required to be paid in
connection with the sale and transfer of the Placement Shares to be sold hereunder will be, or will have been, fully paid or provided
for by the Company and all laws imposing such taxes will be or will have been fully complied with in all material respects.
Any certificate signed
by an officer of the Company and delivered to MLV or to counsel for MLV pursuant to or in connection with this Agreement shall
be deemed to be a representation and warranty by the Company, as applicable, to MLV as to the matters set forth therein.
7. Covenants of the
Company. The Company covenants and agrees with MLV that:
(a) Registration Statement
Amendments. After the date of this Agreement and during any period in which a Prospectus relating to any Placement Shares is
required to be delivered by MLV under the Securities Act (including in circumstances where such requirement may be satisfied pursuant
to Rule 172 under the Securities Act), (i) the Company will notify MLV promptly of the time when any subsequent amendment
to the Registration Statement, other than documents incorporated by reference, has been filed with the Commission and/or has become
effective or any subsequent supplement to the Prospectus has been filed and of any request by the Commission for any amendment
or supplement to the Registration Statement or Prospectus or for additional information, (ii) the Company will prepare and
file with the Commission, promptly upon MLV’s request, any amendments or supplements to the Registration Statement or Prospectus
that, in MLV’s reasonable opinion, may be necessary in connection with the distribution of the Placement Shares by MLV (provided,
however, that the failure of MLV to make such request shall not relieve the Company of any obligation or liability hereunder, or
affect MLV’s right to rely on the representations and warranties made by the Company in this Agreement and provided, further,
that the only remedy MLV shall have with respect to the failure to make such filing shall be to cease making sales under this Agreement
until such amendment or supplement is filed); (iii) the Company will not file any amendment or supplement to the Registration
Statement or Prospectus relating to the Placement Shares or a security convertible into the Placement Shares unless a copy thereof
has been submitted to MLV within a reasonable period of time before the filing and MLV has not reasonably objected thereto (provided,
however, that the failure of MLV to make such objection shall not relieve the Company of any obligation or liability hereunder,
or affect MLV’s right to rely on the representations and warranties made by the Company in this Agreement and provided, further,
that the only remedy MLV shall have with respect to the failure by the Company to provide MLV with such copy shall be to cease
making sales under this Agreement); (iv) the Company will furnish to MLV at the time of filing thereof a copy of any document that
upon filing is deemed to be incorporated by reference into the Registration Statement or Prospectus, except to the extent available
via XXXXX; and (v) the Company will cause each amendment or supplement to the Prospectus to be filed with the Commission as required
pursuant to the applicable paragraph of Rule 424(b) of the Securities Act or, in the case of any document to be incorporated therein
by reference, to be filed with the Commission as required pursuant to the Exchange Act, within the time period prescribed (the
determination to file or not file any amendment or supplement with the Commission under this Section 7(a), based on the
Company’s reasonable opinion or reasonable objections, shall be made exclusively by the Company).
(b) Notifications to
the Sales Agent. The Company will advise MLV, promptly after it receives notice or obtains knowledge thereof, of the issuance
or threatened issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement, of the suspension
of the qualification of the Placement Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any
proceeding for any such purpose; and the Company will promptly use its commercially reasonable efforts to prevent the issuance
of any stop order or to obtain its withdrawal if such a stop order should be issued. The Company will advise MLV promptly after
it receives any request by the Commission for any amendments to the Registration Statement or any amendment or supplements to the
Prospectus or any Issuer Free Writing Prospectus or for additional information related to the offering of the Placement Shares
or for additional information related to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus.
(c) Delivery of Prospectus;
Subsequent Changes. During any period in which a Prospectus relating to the Placement Shares is required to be delivered by
MLV under the Securities Act with respect to the offer and sale of the Placement Shares (including in circumstances where such
requirement may be satisfied pursuant to Rule 172 under the Securities Act) (the “Prospectus Delivery Period”),
the Company will comply with all requirements imposed upon it by the Securities Act, as from time to time in force, and to file
on or before their respective due dates all reports and any definitive proxy or information statements required to be filed by
the Company with the Commission pursuant to Sections 13(a), 13(c), 14, 15(d) or any other provision of or under the Exchange Act.
If the Company has omitted any information from the Registration Statement pursuant to Rule 430A under the Securities Act, it will
use its reasonable best efforts to comply with the provisions of and make all requisite filings with the Commission pursuant to
said Rule 430A and to notify MLV promptly of all such filings. If during the Prospectus Delivery Period any event occurs as a result
of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading, or if
during the Prospectus Delivery Period it is necessary to amend or supplement the Registration Statement or Prospectus to comply
with the Securities Act, the Company will promptly notify MLV to suspend the offering of Placement Shares during such period and
the Company will promptly amend or supplement the Registration Statement or Prospectus (at the expense of the Company) so as to
correct such statement or omission or effect such compliance.
(d) Listing of Placement
Shares. During the Prospectus Delivery Period, the Company will use its reasonable best efforts to cause the Placement Shares
to be listed on the Exchange and to qualify the Placement Shares for sale under the securities laws of such jurisdictions as MLV
reasonably designates and to continue such qualifications in effect so long as required for the distribution of the Placement Shares;
provided, however, that the Company shall not be required in connection therewith to qualify as a foreign corporation or dealer
in securities or file a general consent to service of process in any jurisdiction.
(e) Delivery of Registration
Statement and Prospectus. The Company will furnish to MLV and its counsel (at the expense of the Company) copies of the Registration
Statement, the Prospectus (including all documents incorporated by reference therein) and all amendments and supplements to the
Registration Statement or Prospectus that are filed with the Commission during the Prospectus Delivery Period (including all documents
filed with the Commission during such period that are deemed to be incorporated by reference therein), which may be made via email
in “.pdf” format, in each case as soon as reasonably practicable and in such quantities as MLV may from time to time
reasonably request and, at MLV’s request, will also furnish copies of the Prospectus to each exchange or market on which
sales of the Placement Shares may be made; provided, however, that the Company shall not be required to furnish any document (other
than the Prospectus, exclusive of any document incorporated by reference therein) to MLV to the extent such document is available
on XXXXX.
(f) Earnings Statement.
The Company will make generally available to its security holders on a timely basis, but in any event not later than 15 months
after the end of the Company’s current fiscal quarter, an earnings statement covering a 12-month period that satisfies the
provisions of Section 11(a) and Rule 158 of the Securities Act.
(g) Use of Proceeds.
The Company will use the Net Proceeds as described in the Prospectus in the section entitled “Use of Proceeds.”
(h) Notice of Other
Sales. The Company will not, directly or indirectly, offer to sell, sell, contract to sell, grant any option to sell or otherwise
dispose of any shares of Common Stock (other than the Placement Shares offered pursuant to this Agreement) or securities convertible
into or exchangeable for Common Stock, warrants or any rights to purchase or acquire Common Stock, in each case without giving
MLV at least three (3) Trading Days’ prior written notice specifying the nature and date of such proposed transaction. Notwithstanding
the foregoing, the Company may (i) register the offering and sale of the Placement Shares through MLV and US Capital Advisers LLC
(“USCA”) pursuant to this Agreement and the related At the Market Issuance Sales Agreement with USCA filed on
this date; (ii) issue Common Stock, options to purchase shares of Common Stock or Common Stock issuable upon the exercise
of options, or other equity awards, pursuant to any employee or director stock option, incentive or benefits plan, stock ownership
plan or dividend reinvestment plan (but not Common Stock subject to a waiver to exceed plan limits in its dividend reinvestment
plan) of the Company whether now in effect or hereafter implemented; (iii) issue Common Stock issuable upon conversion of
securities or the exercise of warrants, options or other rights in effect or outstanding, and disclosed in filings by the Company
available on XXXXX or otherwise provided in writing to MLV; (iv) issue Common Stock upon the conversion, or as consideration for
the purchase, of the Company’s 2.00% Convertible Senior Notes; and (v) issue Common Stock, or securities convertible into
or exercisable for Common Stock, or warrants or any rights to purchase or acquire Common Stock offered and sold in privately negotiated
transactions to "accredited investors" as defined under Rule 501 under the Securities Act and otherwise conducted in
a manner so as not to be integrated with the offering of Common Stock hereby, and Common Stock issuable upon conversion or exercise
of such securities, warrants or rights. If notice of a proposed transaction is provided by the Company pursuant to this subsection
(h), MLV may suspend activity of the transactions contemplated by this Agreement for such period of time as may be requested by
the Company or as may be deemed appropriate by MLV.
(i) Change
of Circumstances. The Company will, at any time during the pendency of a Placement Notice, advise MLV promptly after it shall
have received notice or obtained knowledge thereof, of any information or fact that would alter or affect in any material respect
any opinion, certificate, letter or other document required to be provided to MLV pursuant to this Agreement.
(j) Due Diligence Cooperation.
The Company will reasonably cooperate with any reasonable due diligence review requested by MLV or its counsel in connection with
the transactions contemplated hereby, including, without limitation, providing information and making available documents and senior
corporate officers, during regular business hours and at the Company’s principal offices or such other location mutually
agreed to by the parties, as MLV may reasonably request.
(k) Required Filings
Relating to Placement of Placement Shares. The Company agrees that on such dates as the Securities Act shall require, the Company
will (i) file a prospectus supplement with the Commission under the applicable paragraph of Rule 424(b) under the Securities
Act (each and every filing under Rule 424(b), a “Filing Date”), which prospectus supplement will set forth,
within the relevant period, the amount of Placement Shares sold through MLV, the Net Proceeds to the Company and the compensation
payable by the Company to MLV with respect to such Placement Shares, and (ii) deliver such number of copies of each such prospectus
supplement to each exchange or market on which such sales were effected as may be required by the rules or regulations of such
exchange or market.
(l) Representation
Dates; Certificate. Each time the Company:
(i) files the Prospectus
relating to the Placement Shares or amends or supplements (other than a prospectus supplement relating solely to an offering of
securities other than the Placement Shares) the Registration Statement or the Prospectus relating to the Placement Shares (other
than a prospectus supplement filed in accordance with Section 7(k) of this Agreement) by means of a post-effective amendment,
sticker, or supplement but not by means of incorporation of documents by reference into the Registration Statement or the Prospectus
relating to the Placement Shares;
(ii) files an annual
report on Form 10-K under the Exchange Act (including any Form 10-K/A that contains restated financial statements);
(iii) files its
quarterly reports on Form 10-Q under the Exchange Act; or
(iv) files a current
report on Form 8-K containing amended audited financial information (other than information “furnished” pursuant to
Items 2.02 or 7.01 of Form 8-K or to provide disclosure pursuant to Item 8.01 of Form 8-K relating to the reclassification
of certain properties as discontinued operations in accordance with Accounting Standards Codification 205) under the Exchange Act
(each date of filing of one or more of the documents referred to in clauses (i) through (iv) shall be a “Representation
Date”);
the Company shall furnish
MLV (but in the case of clause (iv) above only if MLV reasonably determines that the information contained in such Form 8-K is
material) with a certificate, in the form attached hereto as Exhibit 7(l). The requirement to provide a certificate under this
Section 7(l) shall be waived for any Representation Date occurring at a time at which no Placement Notice is pending,
which waiver shall continue until the earlier to occur of the date the Company delivers a Placement Notice hereunder (which for
such calendar quarter shall be considered a Representation Date) and the next occurring Representation Date; provided, however,
that such waiver shall not apply for any Representation Date on which the Company files its annual report on Form 10-K. Notwithstanding
the foregoing, if the Company subsequently decides to sell Placement Shares following a Representation Date when the Company relied
on such waiver and did not provide MLV with a certificate under this Section 7(l), then before the Company delivers the
Placement Notice or MLV sells any Placement Shares, the Company shall provide MLV with a certificate, in the form attached hereto
as Exhibit 7(l), dated the date of the Placement Notice.
(m) Legal Opinion.
Within five (5) Trading Days of each Representation Date with respect to which the Company is obligated to deliver a certificate
in the form attached hereto as Exhibit 7(l) for which no waiver is applicable, the Company shall cause to be furnished to MLV the
written opinion of Xxxxx Xxxxx LLP (“Company Counsel”), or other counsel reasonably satisfactory to MLV, in
form and substance reasonably satisfactory to MLV and its counsel; provided, however, the Company shall be required to furnish
to MLV no more than one opinion hereunder per calendar quarter; provided, further, that in lieu of such opinions for subsequent
periodic filings under the Exchange Act, counsel may furnish MLV with a letter (a “Reliance Letter”) to the
effect that MLV may rely on a prior opinion delivered under this Section 7(m) 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 the date of the Reliance Letter).
(n) Comfort Letter.
Within ten (10) Trading Days (x) the date of the first Placement Notice given hereunder and (y) following each subsequent date
the Company files an annual report on Form 10-K under the Exchange Act, during the Prospectus Delivery Period and with respect
to which the Company is obligated to deliver a certificate in the form attached hereto as Exhibit 7(l) for which no waiver is applicable,
the Company shall cause its independent accountants to furnish MLV letters (the “Comfort Letters”), dated the
date the Comfort Letter is delivered. The Comfort Letter from the Company’s independent accountants shall be in a form and
substance reasonably satisfactory to MLV, (i) confirming that they are an independent public accounting firm within the meaning
of the Securities Act and the Public Company Accounting Oversight Board, (ii) stating, as of such date, the conclusions and findings
of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort
letters” to underwriters in connection with registered public offerings (the first such letter, the “Initial Comfort
Letter”) and (iii) updating the Initial Comfort Letter with any information that would have been included in the Initial
Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement and the Prospectus,
as amended and supplemented to the date of such letter.
(o) Market Activities.
The Company will not, directly or indirectly, (i) take any action designed to cause or result in, or that constitutes or might
reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Placement Shares or (ii) sell, bid for, or purchase the Placement Shares in violation of Regulation
M, or pay anyone any compensation for soliciting purchases of the Placement Shares other than MLV.
(p) Investment Company
Act. The Company will conduct its affairs in such a manner so as to reasonably ensure that neither it nor any of its Subsidiaries
will be or become, at any time prior to the termination of this Agreement, an “investment company,” as such term is
defined in the Investment Company Act, assuming no change in the Commission’s current interpretation as to entities that
are not considered an investment company.
(q) No Offer to Sell.
Other than an Issuer Free Writing Prospectus approved in advance by the Company and MLV in its capacity as agent hereunder, neither
MLV nor the Company (including its agents and representatives, other than MLV in their capacity as such) will make, use, prepare,
authorize, approve or refer to any written communication (as defined in Rule 405 under the Securities Act), required to be filed
with the Commission, that constitutes an offer to sell or solicitation of an offer to buy Placement Shares hereunder.
(r) Xxxxxxxx-Xxxxx
Act. The Company will use its best efforts to comply with all effective applicable provisions of the Xxxxxxxx-Xxxxx Act.
8. Representations
and Covenants of MLV. MLV represents and warrants that it is duly registered as a broker-dealer under FINRA, the Exchange Act
and the applicable statutes and regulations of each state in which the Placement Shares will be offered and sold, except such states
in which MLV is exempt from registration or such registration is not otherwise required. MLV shall continue, for the term of this
Agreement, to be duly registered as a broker-dealer under FINRA, the Exchange Act and the applicable statutes and regulations of
each state in which the Placement Shares will be offered and sold, except such states in which MLV is exempt from registration
or such registration is not otherwise required, during the term of this Agreement. MLV will comply with all applicable law and
regulations in connection with the Placement Shares, including but not limited to Regulation M. During the term of this Agreement,
neither MLV nor its affiliates or subsidiaries shall engage in (i) any short sale of any security of the Company or (ii) any sales
of any security of the Company that the Representatives do not own or any sale that is consummated by the delivery of a security
of the Company borrowed by, or for the account of MLV. Neither MLV nor any of its affiliates or subsidiaries shall engage in any
proprietary trading or trading for MLV’s (or its affiliates’ or subsidiaries’) own accounts.
9. Payment of Expenses.
The Company, whether or not the transactions contemplated hereunder are consummated or this Agreement is terminated in accordance
with the provisions of Section 13 hereunder, will pay all expenses incident to the performance of its obligations hereunder,
including, but not limited to, expenses relating to (i) the preparation, filing, including any fees required by the Commission,
and printing of the Registration Statement (including financial statements and exhibits) as originally filed and of each amendment
and supplement thereto and each Issuer Free Writing Prospectus, in such number as MLV shall reasonably deem necessary, (ii) the
printing and delivery to MLV of this Agreement, (iii) the preparation, issuance and delivery of the certificates, if any,
for the Placement Shares to MLV, including any stock or other transfer taxes and any capital duties, stamp duties or other duties
or taxes payable upon the sale, issuance or delivery of the Placement Shares to MLV, (iv) the fees and disbursements of the
counsel, accountants and other advisors to the Company, (v) the fees and expenses of the transfer agent and registrar for
the Common Stock, (vi) the filing fees incident to any review by FINRA of the terms of the sale of the Placement Shares, (vii)
the reasonable fees and disbursement of counsel to MLV in connection with the transaction this Agreement and the performance of
MLV’s obligations hereunder in an amount not to exceed $12,500, and (viii) the fees and expenses incurred in connection
with the listing of the Placement Shares on the Exchange. MLV will pay all of its expenses incident to the performance of its obligations
hereunder.
10. Conditions
to MLV’s Obligations. The obligations of MLV hereunder with respect to a Placement will be subject to the continuing
accuracy and completeness of the representations and warranties made by the Company herein, to the due performance by the Company
of its obligations hereunder, to the completion by MLV of a due diligence review satisfactory to it in its reasonable judgment,
and to the continuing satisfaction (or waiver by MLV in its sole discretion) of the following additional conditions:
(a) No Material Notices.
None of the following events shall have occurred and be continuing: (i) receipt by the Company of any request for additional
information from the Commission or any other federal or state governmental authority during the period of effectiveness of the
Registration Statement the response to which would require any post-effective amendments or supplements to the Registration Statement
or the Prospectus; (ii) the issuance by the Commission or any other federal or state governmental authority of any stop order
suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose; (iii) receipt
by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of
the Placement Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) the
occurrence of any event that requires the making of any changes in the Registration Statement, the Prospectus or documents so that,
in the case of the Registration Statement, it will not contain any materially untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the statements therein not misleading and, that in the case
of the Prospectus, it will not contain any materially untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made,
not misleading.
(b) No Misstatement
or Material Omission. MLV shall not have advised the Company that the Registration Statement or Prospectus, or any amendment
or supplement thereto, contains an untrue statement of fact that in MLV’s reasonable opinion based on advice of counsel is
material, or omits to state a fact that in MLV’s reasonable opinion based on advice of counsel is material and is required
to be stated therein or is necessary to make the statements therein not misleading.
(c) Material Changes.
Except as contemplated in the Prospectus, or disclosed in the Company’s reports filed with the Commission, there shall not
have been any material adverse change, on a consolidated basis, in the authorized capital stock of the Company or any Material
Adverse Effect, or any development that would reasonably be expected to cause a Material Adverse Effect.
(d) Legal Opinion.
MLV shall have received the opinions of Company Counsel required to be delivered pursuant Section 7(m) on or before the
date on which such delivery of such opinions are required pursuant to Section 7(m).
(e) Comfort Letter.
MLV shall have received the Comfort Letter required to be delivered pursuant Section 7(n) on or before the date on which
such delivery of such letter is required pursuant to Section 7(n).
(f) Representation
Certificate. MLV shall have received the certificate required to be delivered pursuant to Section 7(l) on or before
the date on which delivery of such certificate is required pursuant to Section 7(l).
(g) No Suspension.
Trading in the Common Stock shall not have been suspended on the Exchange and the Common Stock shall not have been delisted from
the Exchange.
(h) Other Materials.
On each date on which the Company is required to deliver a certificate pursuant to Section 7(l), the Company shall have
furnished to MLV such appropriate further information, certificates and documents as MLV may reasonably request and which are usually
and customarily furnished by an issuer of securities in connection with a securities offering.
(i) Securities
Act Filings Made. All filings with the Commission required by Rule 424 under the Securities Act to have been filed prior to
the issuance of any Placement Notice hereunder shall have been made within the applicable time period prescribed for such filing
by Rule 424.
(j) Approval for Listing.
The Placement Shares shall either have been approved for listing on the Exchange, subject only to notice of issuance, or the Company
shall have filed an application for listing of the Placement Shares on the Exchange at, or prior to, the issuance of any Placement
Notice.
(k) No Termination
Event. There shall not have occurred any event that would permit MLV to terminate this Agreement pursuant to Section 13(a).
11. Indemnification
and Contribution.
(a) Company Indemnification.
The Company agrees to indemnify and hold harmless MLV, its partners, members, directors, officers, employees and agents and each
person, if any, who controls MLV within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act as follows:
(i) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, joint or several, to the extent arising out of
or based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any
amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary
to make the statements therein not misleading, or arising out of any untrue statement or alleged untrue statement of a material
fact included in any related Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, joint or several, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or
omission; provided that any such settlement is effected with the written consent of the Company; and
(iii) against
any and all expense whatsoever, as incurred (including the reasonable fees and disbursements of counsel), reasonably incurred in
investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid under (i) or (ii) above,
provided, however,
that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made solely in reliance upon and in conformity with written
information furnished to the Company by MLV expressly for use in the Registration Statement (or any amendment thereto), or in any
related Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto).
(b) MLV Indemnification.
MLV agrees to indemnify and hold harmless the Company and its directors and each officer of the Company who signed the Registration
Statement, and each person, if any, who (i) controls the Company within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act or (ii) is controlled by or is under common control with the Company against any and all loss,
liability, claim, damage and expense described in the indemnity contained in Section 11(a), as incurred, but only with respect
to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendments
thereto), the Prospectus (or any amendment or supplement thereto) or any Free Writing Prospectus in reliance upon and in conformity
with information furnished to the Company in writing by MLV expressly for use therein.
(c) Procedure.
Any party that proposes to assert the right to be indemnified under this Section 11 will, promptly after receipt of notice
of commencement of any action against such party in respect of which a claim is to be made against an indemnifying party or parties
under this Section 11, notify each such indemnifying party of the commencement of such action, enclosing a copy of all papers
served, but the omission so to notify such indemnifying party will not relieve the indemnifying party from (i) any liability
that it might have to any indemnified party otherwise than under this Section 11 and (ii) any liability that it may
have to any indemnified party under the foregoing provision of this Section 11 unless, and only to the extent that, such
omission results in the forfeiture or material impairment of substantive rights or defenses by the indemnifying party. If any such
action is brought against any indemnified party and it notifies the indemnifying party of its commencement, the indemnifying party
will be entitled to participate in and, to the extent that it elects by delivering written notice to the indemnified party a reasonable
time, but in no event more than ten (10) days after receiving notice of the commencement of the action from the indemnified party,
jointly with any other indemnifying party similarly notified, to assume the defense of the action, with counsel reasonably satisfactory
to the indemnified party, and after notice from the indemnifying party to the indemnified party of its election to assume the defense,
the indemnifying party will not be liable to the indemnified party for any legal or other expenses except as provided below and
except for the reasonable costs of investigation subsequently incurred by the indemnified party in connection with the defense.
The indemnified party will have the right to employ its own counsel in any such action, but the fees, expenses and other charges
of such counsel will be at the expense of such indemnified party unless (1) the employment of counsel by the indemnified party
has been authorized in writing by the indemnifying party, (2) the indemnified party has reasonably concluded (based on advice
of counsel) that there may be legal defenses available to it or other indemnified parties that are different from or in addition
to those available to the indemnifying party, (3) a conflict or potential conflict exists (based on advice of counsel to the
indemnified party) between the indemnified party and the indemnifying party (in which case the indemnifying party will not have
the right to direct the defense of such action on behalf of the indemnified party) or (4) the indemnifying party has not in
fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement
of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of
the indemnifying party or parties. It is understood that the indemnifying party or parties shall not, in connection with any proceeding
or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than
one separate firm admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such
fees, disbursements and other charges will be reimbursed by the indemnifying party promptly after the indemnifying party receives
a written invoice relating to fees, disbursements and other charges in reasonable detail. An indemnifying party will not, in any
event, be liable for any settlement of any action or claim effected without its written consent. No indemnifying party shall, without
the prior written consent of each indemnified party, settle or compromise or consent to the entry of any judgment in any pending
or threatened claim, action or proceeding relating to the matters contemplated by this Section 11 (whether or not any indemnified
party is a party thereto), unless such settlement, compromise or consent (1) includes an unconditional release of each indemnified
party from all liability arising out of such litigation, investigation, proceeding or claim and (2) does not include a statement
as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) Contribution.
In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in the foregoing
paragraphs of this Section 11 is applicable in accordance with its terms but for any reason is held to be unavailable from
the Company or MLV, the Company and MLV will contribute to the total losses, claims, liabilities, expenses and damages (including
any investigative, legal and other expenses reasonably incurred in connection with, and any amount paid in settlement of, any action,
suit or proceeding or any claim asserted, but after deducting any contribution received by the Company from persons other than
MLV, such as persons who control the Company within the meaning of the Securities Act, officers of the Company who signed the Registration
Statement and directors of the Company, who also may be liable for contribution) to which the Company and MLV may be subject in
such proportion as shall be appropriate to reflect the relative benefits received by the Company on the one hand and MLV on the
other hand. The relative benefits received by the Company on the one hand and MLV on the other hand shall be deemed to be in the
same proportion as the total net proceeds from the sale of the Placement Shares (before deducting expenses) received by the Company
bear to the total compensation received by MLV (before deducting expenses) from the sale of Placement Shares on behalf of the Company.
If, but only if, the allocation provided by the foregoing sentence is not permitted by applicable law, the allocation of contribution
shall be made in such proportion as is appropriate to reflect not only the relative benefits referred to in the foregoing sentence
but also the relative fault of the Company, on the one hand, and MLV, on the other hand, with respect to the statements or omission
that resulted in such loss, claim, liability, expense or damage, or action in respect thereof, as well as any other relevant equitable
considerations with respect to such offering. Such relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information
supplied by the Company or MLV, the intent of the parties and their relative knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and MLV agree that it would not be just and equitable if contributions
pursuant to this Section 11(d) were to be determined by pro rata allocation or by any other method of allocation that does
not take into account the equitable considerations referred to herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, liability, expense, or damage, or action in respect thereof, referred to above in this Section 11(d)
shall be deemed to include, for the purpose of this Section 11(d), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action or claim to the extent consistent with Section
11(c) hereof. Notwithstanding the foregoing provisions of this Section 11(d), MLV shall not be required to contribute
any amount in excess of the commissions received by it under this Agreement and no person found guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) will be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. For purposes of this Section 11(d), any person who controls a party to this Agreement
within the meaning of the Securities Act, and any officers, directors, partners, employees or agents of MLV, will have the same
rights to contribution as that party, and each officer and director of the Company who signed the Registration Statement will have
the same rights to contribution as the Company, subject in each case to the provisions hereof. Any party entitled to contribution,
promptly after receipt of notice of commencement of any action against such party in respect of which a claim for contribution
may be made under this Section 11(d), will notify any such party or parties from whom contribution may be sought, but the
omission to so notify will not relieve that party or parties from whom contribution may be sought from any other obligation it
or they may have under this Section 11(d) except to the extent that the failure to so notify such other party materially
prejudiced the substantive rights or defenses of the party from whom contribution is sought. Except for a settlement entered into
pursuant to the last sentence of Section 11(c) hereof, no party will be liable for contribution with respect to any action
or claim settled without its written consent if such consent is required pursuant to Section 11(c) hereof.
12. Representations
and Agreements to Survive Delivery. The indemnity and contribution agreements contained in Section 11 of this Agreement
and all representations and warranties of the Company herein or in certificates delivered pursuant hereto shall survive, as of
their respective dates, regardless of (i) any investigation made by or on behalf of MLV, any controlling persons, or the Company
(or any of their respective officers, directors or controlling persons), (ii) delivery and acceptance of the Placement Shares
and payment therefor or (iii) any termination of this Agreement.
13. Termination.
(a) MLV may terminate
this Agreement, by notice to the Company, as hereinafter specified at any time (1) if there has been, since the time of execution
of this Agreement or since the date as of which information is given in the Prospectus, any Material Adverse Effect, or any development
that has occurred that is reasonably likely to have a Material Adverse Effect, has occurred that in the reasonable judgment of
MLV makes it impractical or inadvisable to market the Placement Shares or to enforce contracts for the sale of the Placement Shares,
(2) if there has occurred any material adverse change in the financial markets in the United States or the international financial
markets, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving a
prospective change in national or international political, financial or economic conditions, in each case the effect of which is
such as to make it, in the judgment of MLV, impracticable or inadvisable to market the Placement Shares or to enforce contracts
for the sale of the Placement Shares, (3) if trading in the Common Stock has been suspended or limited by the Commission or
the Exchange, or if trading generally on the Exchange has been suspended or limited, or minimum prices for trading have been fixed
on the Exchange, (4) if any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market
shall have occurred and be continuing, (5) if a major disruption of securities settlements or clearance services in the United
States shall have occurred and be continuing, or (6) if a banking moratorium has been declared by either U.S. Federal or New
York authorities. Any such termination shall be without liability of any party to any other party except that the provisions of
Section 9 (Payment of Expenses), Section 11 (Indemnification and Contribution), Section 12 (Representations
and Agreements to Survive Delivery), Section 18 (Applicable Law; Waiver of Jury Trial) and Section 19 (Consent to
Jurisdiction) hereof shall remain in full force and effect notwithstanding such termination. If MLV elects to terminate this Agreement
as provided in this Section 13(a), MLV shall provide the required notice as specified in Section 14 (Notices).
(b) (i) The
Company shall have the right, by giving ten (10) days notice as hereinafter specified, to terminate this Agreement in its sole
discretion at any time after the date of this Agreement.
(ii) If
MLV declines any commercially reasonable Placement Notice pursuant to clause (i) of Section 2 of this Agreement, then the
Company shall have the right to terminate this Agreement by giving written notice of termination to MLV. Any such termination shall
be effective immediately upon a delivery of a termination notice by the Company to MLV.
Any termination pursuant
to Section 13(b) shall be without liability of any party to any other party except that the provisions of Section 9
(Payment of Expenses), Section 11 (Indemnification and Contribution), Section 12 (Representations and Agreements
to Survive Delivery), Section 18 (Applicable Law; Waiver of Jury Trial) and Section 19 (Consent to Jurisdiction)
hereof shall remain in full force and effect notwithstanding such termination.
(c) MLV shall have the
right, by giving thirty (30) days notice as hereinafter specified to terminate this Agreement in its sole discretion at any time
after the date of this Agreement. Any such termination shall be without liability of any party to any other party except that the
provisions of Section 9 (Payment of Expenses), Section 11 (Indemnification and Contribution), Section 12 (Representations
and Agreements to Survive Delivery), Section 18 (Applicable Law; Waiver of Jury Trial) and Section 19 (Consent to
Jurisdiction) hereof shall remain in full force and effect notwithstanding such termination.
(d) Unless earlier terminated
pursuant to this Section 13, this Agreement shall automatically terminate upon the issuance and sale of the Maximum Amount
through MLV on the terms and subject to the conditions set forth herein, except that, in either such case, the provisions of Section
9 (Payment of Expenses), Section 11 (Indemnification and Contribution), Section 12 (Representations and Agreements
to Survive Delivery), Section 18 (Applicable Law; Waiver of Jury Trial) and Section 19 (Consent to Jurisdiction)
hereof shall remain in full force and effect notwithstanding such termination.
(e) This Agreement shall
remain in full force and effect unless terminated pursuant to Sections 13(a), (b), (c) or (d) above
or otherwise by mutual agreement of the parties. Upon termination of this Agreement, the Company shall not have any liability to
MLV for any discount, commission or other compensation with respect to any Placement Shares not otherwise sold by MLV under this
Agreement.
(f) Any termination of
this Agreement shall be effective on the date specified in such notice of termination; provided, however, that such termination
shall not be effective until the close of business on the date of receipt of such notice by MLV or the Company, as the case may
be. If such termination shall occur prior to the Settlement Date for any sale of Placement Shares, such Placement Shares shall
settle in accordance with the provisions of this Agreement.
14.
Notices. All notices or other communications required or permitted to be given by any party to
any other party pursuant to the terms of this Agreement shall be in writing, unless otherwise specified, and if sent to MLV,
shall be delivered to:
|
MLV & Co. LLC |
|
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx |
|
Xxx Xxxx, XX 00000 |
|
Attention: |
General Counsel |
|
Telephone: |
(000) 000-0000 |
|
Facsimile: |
(000) 000-0000 |
with a copy to:
|
LeClairRyan, A Professional Corporation |
|
000 Xxxxx Xxxxxx |
|
Xxx Xxxx, XX 00000 |
|
Attention: |
Xxxxx X. Xxxxx |
|
Telephone: |
(000) 000-0000 |
|
Email: |
xxxxx.xxxxx@xxxxxxxxxxx.xxx |
and if to the
Company, shall be delivered to:
|
Emerald Oil, Inc. |
|
0000 Xxxxxxxx, Xxxxx 0000 |
|
Xxxxxx, XX 00000 |
|
Attention: |
Xxxxx Xxxxxxxx |
|
Telephone: |
(000) 000-0000 |
|
Email: |
xxxxx.xxxxxxxx@xxxxxxxxxx.xxx |
with a copy to:
|
Xxxxx Xxxxx LLP |
|
000 Xxxxxxxxx, Xxxxx 0000 |
|
Xxxxxxx, Xxxxx 00000 |
|
Attention: |
Xxxx Xxxxxx |
|
Telephone: |
(000) 000-0000 |
|
Email: |
xxxxxxx@xxxxxxxxxx.xxx |
Each party to this Agreement
may change such address for notices by sending to the parties to this Agreement written notice of a new address for such purpose.
Each such notice or other communication shall be deemed given (i) when delivered personally or by verifiable facsimile transmission
(with an original to follow) on or before 4:30 p.m., New York City time, on a Business Day or, if such day is not a Business
Day, on the next succeeding Business Day, (ii) on the next Business Day after timely delivery to a nationally-recognized overnight
courier and (iii) on the Business Day actually received if deposited in the U.S. mail (certified or registered mail, return
receipt requested, postage prepaid). For purposes of this Agreement, “Business Day” shall mean any day on which
the Exchange and commercial banks in the City of New York are open for business.
An electronic communication
(“Electronic Notice”) shall be deemed written notice for purposes of this Section 14 if sent to the electronic
mail address specified by the receiving party under separate cover. Electronic Notice shall be deemed received at the time the
party sending Electronic Notice receives confirmation of receipt by the receiving party. Any party receiving Electronic Notice
may request and shall be entitled to receive the notice on paper, in a nonelectronic form (“Nonelectronic Notice”)
which shall be sent to the requesting party within ten (10) days of receipt of the written request for Nonelectronic Notice.
15. Successors
and Assigns. This Agreement shall inure to the benefit of and be binding upon the Company and MLV and their respective successors
and the affiliates, controlling persons, partners, members, officers, directors, employees and agents referred to in Section
11 hereof. References to any of the parties contained in this Agreement shall be deemed to include the successors and permitted
assigns of such party. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties
hereto or their respective successors and permitted assigns any rights, remedies, obligations or liabilities under or by reason
of this Agreement, except as expressly provided in this Agreement. Neither party may assign its rights or obligations under this
Agreement without the prior written consent of the other party.
16. Adjustments
for Stock Splits. The parties acknowledge and agree that all share-related numbers contained in this Agreement shall be adjusted
to take into account any share consolidation, stock split, stock dividend, corporate domestication or similar event effected with
respect to the Placement Shares.
17. Entire
Agreement; Amendment; Severability. This Agreement (including all schedules and exhibits attached hereto and Placement Notices
issued pursuant hereto) constitutes the entire agreement of the parties with respect to the subject matter hereof and thereof and
supersedes all other prior and contemporaneous agreements and undertakings, both written and oral, among the parties hereto with
regard to the subject matter hereof and thereof. Neither this Agreement nor any term hereof may be amended except pursuant to a
written instrument executed by the Company and MLV. In the event that any one or more of the provisions contained herein, or the
application thereof in any circumstance, is held invalid, illegal or unenforceable as written by a court of competent jurisdiction,
then such provision shall be given full force and effect to the fullest possible extent that it is valid, legal and enforceable,
and the remainder of the terms and provisions herein shall be construed as if such invalid, illegal or unenforceable term or provision
was not contained herein, but only to the extent that giving effect to such provision and the remainder of the terms and provisions
hereof shall be in accordance with the intent of the parties as reflected in this Agreement.
18. APPLICABLE
LAW; WAIVER OF JURY TRIAL. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME. THE COMPANY AND MLV EACH HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
19. CONSENT
TO JURISDICTION. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING
IN THE CITY OF NEW YORK, BOROUGH OF MANHATTAN, FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH ANY TRANSACTION
CONTEMPLATED HEREBY, AND HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT
IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF ANY SUCH COURT, THAT SUCH SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT
FORUM OR THAT THE VENUE OF SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER. EACH PARTY HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF
PROCESS AND CONSENTS TO PROCESS BEING SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY THEREOF (CERTIFIED OR REGISTERED
MAIL, RETURN RECEIPT REQUESTED) TO SUCH PARTY AT THE ADDRESS IN EFFECT FOR NOTICES TO IT UNDER THIS AGREEMENT AND AGREES THAT SUCH
SERVICE SHALL CONSTITUTE GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING CONTAINED HEREIN SHALL BE DEEMED TO
LIMIT IN ANY WAY ANY RIGHT TO SERVE PROCESS IN ANY MANNER PERMITTED BY LAW.
20. Use
of Information. MLV may not use any information gained in connection with this Agreement and the transactions
contemplated by this Agreement, including due diligence, to advise any party with respect to transactions not expressly
approved by the Company. MLV acknowledges that any information gained in connection with this Agreement and the transactions
contemplated by this Agreement are subject to confidentiality and other restrictions pursuant to the Confidentiality
Agreement and agrees to abide by the terms of the Confidentiality Agreement.
21. Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument. Delivery of an executed Agreement by one party to the other may be made by facsimile
transmission, email or pdf.
22. Effect
of Headings.
The section and Exhibit headings
herein are for convenience only and shall not affect the construction hereof.
23. Permitted
Free Writing Prospectuses.
The Company represents,
warrants and agrees that, unless it obtains the prior consent of MLV, and MLV represents, warrants and agrees that, unless it obtains
the prior consent of the Company, it has not made and will not make any offer relating to the Placement Shares that would constitute
an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405,
required to be filed with the Commission. Any such free writing prospectus consented to by MLV or by the Company, as the case may
be, is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents and warrants that it
has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,”
as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted
Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. For the purposes
of clarity, the parties hereto agree that all free writing prospectuses, if any, listed in Exhibit G hereto are Permitted
Free Writing Prospectuses.
24. Absence
of Fiduciary Relationship.
The Company acknowledges
and agrees that:
(a) MLV is acting solely
as agent in connection with the public offering of the Placement Shares and in connection with each transaction contemplated by
this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any
of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand,
and MLV, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective
of whether or not MLV has advised or is advising the Company on other matters, and MLV has no obligation to the Company with respect
to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) it is capable of evaluating
and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) MLV has not provided
any legal, accounting, regulatory or tax advice with respect to the transactions contemplated by this Agreement and it has consulted
its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it is aware that MLV
and its affiliates are engaged in a broad range of transactions which may involve interests that differ from those of the Company
and MLV has no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency
relationship or otherwise; provided that MLV hereby agrees not to engage in any such transaction which would cause its interests
to be in direct conflict with the best interests of the Company; and
(e) it waives, to the
fullest extent permitted by law, any claims it may have against MLV for breach of fiduciary duty or alleged breach of fiduciary
duty in connection with the sale of Placement Shares under this Agreement and agrees that MLV shall not have any liability (whether
direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any person asserting
a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company, other than in respect
of MLV’s obligations under this Agreement and to keep information provided by the Company to MLV and MLV's counsel confidential
to the extent not otherwise publicly-available.
25. Definitions.
As used in this Agreement,
the following terms have the respective meanings set forth below:
“Applicable Time”
means (i) each Representation Date and (ii) the time of each sale of any Placement Shares pursuant to this Agreement.
“Issuer Free Writing
Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433, relating to the Placement
Shares.
“Rule 164,”
“Rule 172,” “Rule 405,” “Rule 415,” “Rule 424,” “Rule 424(b),”
“Rule 430A,” “Rule 430B,” and “Rule 433” refer to such
rules under the Securities Act.
[Signature Page Follows]
If the foregoing correctly
sets forth the understanding between the Company and MLV, please so indicate in the space provided below for that purpose, whereupon
this letter shall constitute a binding agreement between the Company and MLV.
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Very truly yours, |
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EMERALD OIL, INC. |
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By: |
/s/ Xxxx Xxxxx |
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Name: Xxxx Xxxxx |
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Title: Chief Financial Officer |
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ACCEPTED as of the date first-above written: |
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MLV & CO. LLC |
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By: |
/s/ Xxxxxxx XxXxxxxx |
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Name: Xxxxxxx XxXxxxxx |
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Title: Chief Executive Officer |
Signature page to the At-The-Market Issuance
Sales Agreement
SCHEDULE 1
FORM OF PLACEMENT NOTICE
From: |
Emerald Oil, Inc. |
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To: |
[MLV & Co. LLC |
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Attention: Xxxxxxx XxXxxxxx] |
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Subject: |
At-The-Market Issuance – Placement Notice |
Gentlemen:
Pursuant to the terms and
subject to the conditions contained in the At-The-Market Issuance Sales Agreement between Emerald Oil, Inc., a Delaware corporation
(the “Company”), and MLV & Co. LLC (“MLV”), dated April ____, 2015, the Company hereby
requests that MLV sell up to ____________ shares of the Company’s Common Stock, par value $0.001 per share, at a minimum
market price of $_______ per share, during the time period beginning [month, day, time] and ending [month, day, time].
SCHEDULE 2
Compensation
The Company shall pay
to MLV in cash, upon each sale of Placement Shares pursuant to this Agreement, an amount equal to up to 3% of the gross proceeds
from each sale of Placement Shares.
SCHEDULE 3
Notice Parties
The Company |
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XxXxxxxx Rudisill |
xxxxxxxx.xxxxxxxx@xxxxxxxxxx.xxx |
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Xxxx Xxxxx |
xxxx.xxxxx@xxxxxxxxxx.xxx |
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Xxxxx Xxxxxxxx |
xxxxx.xxxxxxxx@xxxxxxxxxx.xxx |
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Xxxxx Xxxxxxxx |
xxxxx.xxxxxxxx@xxxxxxxxxx.xxx |
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MLV |
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Xxxxx Xxxxxxxxx |
xxxxxxxxxx@xxxxx.xxx |
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Xxxx Xxxxxxx |
xxxxxxxx@xxxxx.xxx |
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Xxxxxxx XxXxxxxx |
xxxxxxxxx@xxxxx.xxx |
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Xxx Xxxxxx |
xxxxxxx@xxxxx.xxx |
SCHEDULE 4
Significant Subsidiaries
Emerald WB LLC
EOX Marketing LLC
EXHIBIT 7(l)
Form of Representation
Date Certificate
This Officers Certificate (this “Certificate”)
is executed and delivered in connection with Section 7(l) of the At-The-Market Issuance Sales Agreement (the “Agreement”),
dated April___, 2015, and entered into between Emerald Oil, Inc. (the “Company”) and MLV & Co. LLC. All
capitalized terms used but not defined herein shall have the meanings given to such terms in the Agreement.
The undersigned, a duly
appointed and authorized officer of the Company, having made all necessary inquiries to establish the accuracy of the statements
below and having been authorized by the Company to execute this certificate on behalf of the Company, hereby certifies as follows:
1. As of the date of
this Certificate, (i) the Registration Statement does not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the statements therein not misleading and (ii) the Prospectus
does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary
in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
2. Each of the representations
and warranties of the Company contained in the Agreement were, when originally made, and are, as of the date of this Certificate,
true and correct in all material respects.
3. Except as waived
by MLV in writing, each of the covenants required to be performed by the Company in the Agreement on or prior to the date of the
Agreement, this Representation Date, and each such other date prior to the date hereof as set forth in the Agreement, has been
duly, timely and fully performed in all material respects and each condition required to be complied with by the Company on or
prior to the date of the Agreement, this Representation Date, and each such other date prior to the date hereof as set forth in
the Agreement has been duly, timely and fully complied with in all material respects.
4. Subsequent to the
date of the most recent financial statements in the Prospectus, and except as described in the Prospectus, including Incorporated
Documents, there has been no Material Adverse Effect.
5. No stop order suspending
the effectiveness of (a) the Registration Statement or of any part thereof or (b) the qualification or registration of the Placement
Shares under the securities or Blue Sky laws of any jurisdiction has been issued, and, to the Company’s knowledge, no proceedings
for that purpose have been instituted or are pending or threatened by any securities or other governmental authority (including,
without limitation, the Commission).
The undersigned has executed
this Officer's Certificate as of the date first written above.
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EMERALD OIL, INC. |
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By: __________________________________ |
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Name: ________________________________ |
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Title: ________________________________ |