Form 8-K
8-K — Velo3D, Inc.
Accession: 0001493152-26-023956
Filed: 2026-05-15
Period: 2026-05-15
CIK: 0001825079
SIC: 3559 (SPECIAL INDUSTRY MACHINERY, NEC)
Item: Entry into a Material Definitive Agreement
Item: Termination of a Material Definitive Agreement
Item: Financial Statements and Exhibits
Documents
8-K — form8-k.htm (Primary)
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EX-10.1 (ex10-1.htm)
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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
8-K
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES
EXCHANGE ACT OF 1934
Date
of Report (Date of earliest event reported): May 15, 2026
Velo3D,
Inc.
(Exact
name of registrant as specified in its charter)
Delaware
001-39757
98-1556965
(State
or other jurisdiction
of
incorporation)
(Commission
File
Number)
(IRS
Employer
Identification
No.)
2710
Lakeview Court,
Fremont,
California
94538
(Address
of principal executive offices)
(Zip
Code)
(408)
610-3915
Registrant’s
telephone number, including area code
N/A
(Former
name or former address, if changed since last report.)
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under
any of the following provisions:
☐
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities
registered pursuant to Section 12(b) of the Act:
Title
of each class
Trading
Symbol(s)
Name
of each exchange on which registered
Common
stock, $0.00001 par value per share
VELO
The
Nasdaq Stock Market LLC
Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405
of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging
growth company ☐
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item
1.01 Entry Into A Material Definitive Agreement
On
May 15, 2026, Velo3D, Inc. (the “Company”) entered into a sales agreement (the “Sales Agreement”) with Needham
& Company, LLC, Cantor Fitzgerald & Co. and Craig-Hallum Capital Group, LLC (each, a “Sales Agent,” and collectively,
the “Sales Agents”), acting as sales agents and/or principals. Pursuant to the terms of the Sales Agreement, the Company
may sell from time to time to or through any Sales Agent shares of the Company’s common stock, par value $0.00001 per share
(the “Shares”), having an aggregate offering price of up to $100,000,000 (the “Offering”).
Any
Shares offered and sold in the Offering will be issued pursuant to the Company’s effective shelf registration statement on Form
S-3 (No. 333-294876) (the “Registration Statement”), which was initially filed with the Securities and Exchange Commission
(the “SEC”) on April 3, 2026, and declared effective on April 8, 2026, including the base prospectus contained in
the Registration Statement, as supplemented by a prospectus supplement filed with the SEC on May 15, 2026 pursuant to Rule 424(b) under
the Securities Act of 1933, as amended (the “Securities Act”). The Company currently intends to use the net proceeds from
the Offering, if any, for working capital and general corporate purposes.
Sales
of Shares, if any, under the Sales Agreement may be made in any transactions permitted by law that are deemed to be “at
the market offerings” as defined in Rule 415 under the Securities Act. The Sales Agents will use commercially reasonable
efforts to sell the Shares from time to time, based upon instructions from the Company (including any price, time or size limits or other
customary parameters or conditions the Company may impose).
The
Sales Agreement contains customary representations, warranties and agreements by the Company, indemnification obligations of the Company
and the Sales Agents, including for liabilities under the Securities Act, other obligations of the parties and termination provisions.
Under the terms of the Sales Agreement, the Company will pay the Sales Agents a commission equal to 3.0% of the aggregate gross
proceeds from the Offering. The Company will also reimburse the Sales Agents for certain expenses incurred in connection with
the Sales Agreement.
The
Company is not obligated to make any sales of Shares under the Sales Agreement. No assurance can be given that the Company will sell
any Shares under the Sales Agreement, or, if it does, as to the price or amount of Shares that it sells or the dates when such sales
will take place. The offering of Shares pursuant to the Sales Agreement will terminate upon the earlier of (i) the sale of all Shares
subject to the Sales Agreement and (ii) the termination of the Sales Agreement in accordance with its terms.
The
foregoing description of the Sales Agreement does not purport to be complete and is qualified in its entirety by reference to such document.
A copy of the Sales Agreement is attached as Exhibit 10.1 hereto and is incorporated herein by reference.
A
copy of the opinion of Troutman Pepper Locke LLP relating to the validity of the Shares to be issued in the Offering is filed
herewith as Exhibit 5.1.
This
Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of an offer to buy any Shares, nor shall there be
any sale of such Shares in any state in which such offer, solicitation or sale would be unlawful prior to registration or qualification
under the securities laws of any such state. The provisions of the Sales Agreement, including the representations and warranties contained
therein, are not for the benefit of any party other than the parties to the Sales Agreement and are not intended as a document for investors
and the public to obtain factual information about the Company’s current state of affairs. Rather, investors and the public should
look to other disclosures contained in the Company’s public filings with the SEC.
Item 1.02 Termination
of a Material Definitive Agreement
In connection
with the Company’s entry into the Sales Agreement described in Item 1.01 of this Current Report on Form 8 K, on May 15, 2026,
the Company delivered a notice to Needham terminating the sales agreement, dated as of February 6, 2023, by and between the Company and
Needham (the “Prior Sales Agreement”), which termination was effective on the date thereof. The Company is not subject to
any termination penalties related to the termination of the Prior Sales Agreement. A copy of the Prior Sales Agreement was filed as Exhibit
1.1 to the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on February 6, 2023.
Item
9.01 Financial Statements and Exhibits.
(d)
Exhibits:
Exhibit
Description
5.1
Opinion of Troutman Pepper Locke LLP
10.1
Sales Agreement, dated as of May 15, 2026, by and among Velo3D, Inc. and Needham & Company, LLC, Cantor Fitzgerald & Co. and Craig-Hallum Capital Group, LLC
23.1
Consent of Troutman Pepper Locke LLP (included in Exhibit 5.1)
104
Cover
Page Interactive Data File (formatted as Inline XBRL)
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its
behalf by the undersigned hereunto duly authorized.
Velo3D,
Inc.
Date:
May 15, 2026
By:
/s/
James Suva
James
Suva
Chief
Financial Officer
EX-5.1
EX-5.1
Filename: ex5-1.htm · Sequence: 2
Exhibit
5.1
Troutman
Pepper Locke LLP
111
Huntington Avenue, 9th Floor
Boston,
MA 02199
troutman.com
May
15, 2026
Velo3D,
Inc.
2710
Lakeview Court
Fremont,
CA 94538
Re:
At The Market Offering
Ladies
and Gentlemen:
We
have acted as counsel to Velo3D, Inc., a Delaware corporation (the “Company”), in connection with the issuance and
sale by the Company (the “Offering”) of up to $100,000,000 of shares (the “Shares”)
of common stock, par value $0.00001 per share, of the Company, pursuant to a Sales Agreement, dated as of May 15, 2026 (the “Sales
Agreement”), by and among the Company, Needham & Company, LLC, Cantor Fitzgerald & Co. and Craig-Hallum Capital
Group, LLC (each, a “Sales Agent,” and collectively, the “Sales Agents”).
The
Shares are being offered and sold by the Company pursuant to the Company’s effective shelf Registration Statement on Form S-3 (File
No. 333-294876) (as amended from time to time, the “Registration Statement”) filed with Securities and Exchange
Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”),
the base prospectus included in the Registration Statement (the “Prospectus”) and the prospectus supplement
related to the Offering, dated May 15, 2026, and filed with the Commission under Rule 424(b) of the Securities Act on May 15, 2026 (the
“Prospectus Supplement”). This opinion is being furnished in connection with the requirements of Item 601(b)(5)
of Regulation S-K under the Securities Act, and no opinion is expressed herein as to any matter pertaining to the contents of the Registration
Statement, the Prospectus and the Prospectus Supplement, other than as expressly stated herein with respect to the issuance of the Shares.
In
rendering the opinion set forth herein, we have examined the originals, or photostatic or certified copies, of (i) the Certificate of
Incorporation, and the Second Amended and Restated Bylaws of the Company, each as amended to date, (ii) certain resolutions of the Board
of Directors of the Company related to the Offering, the authorization and issuance of the Shares and related matters, (iii) the Registration
Statement, the Prospectus and the Prospectus Supplement (iv) the Sales Agreement, and (v) such other records, documents and instruments
as we have deemed relevant and necessary for purposes of the opinion stated herein. In making the foregoing examination we have assumed
the genuineness of all signatures, the legal capacity of all natural persons, the authenticity of all documents submitted to us as originals,
the conformity to original documents of all documents submitted to us as photostatic or certified copies, and the authenticity of the
originals of such copies. As to all questions of fact material to this opinion, where such facts have not been independently established,
we have relied, to the extent we have deemed reasonably appropriate, upon representations or certificates of officers of the Company
or governmental officials.
Velo3D,
Inc.
May
15, 2026
Page
2
This
opinion is limited in all respects to the General Corporation Law of the State of Delaware, and we express no opinion as to the effect
on the matters covered by this opinion of the laws of any other jurisdiction.
Based
upon the foregoing and subject to the limitations, qualifications and assumptions set forth herein, we are of the opinion that, as of
the date hereof, when the Shares shall have been issued by the Company against payment therefor (not less than par value) in the circumstances
contemplated by Sales Agreement, the Shares will be validly issued, fully paid and nonassessable.
This
opinion is for your benefit in connection with the Registration Statement and may be relied upon by you and by persons entitled to rely
upon it pursuant to the applicable provisions of the Securities Act. We hereby consent to your filing this opinion as an exhibit to the
Current Report on Form 8-K, dated the date hereof, filed by the Company and incorporated by reference into the Registration Statement
and to the reference to our firm in the Prospectus Supplement under the heading “Legal Matters.” In rendering this opinion
and giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of
the Securities Act or the rules and regulations of the Commission thereunder.
Very
truly yours,
/s/
Troutman Pepper Locke LLP
Troutman
Pepper Locke LLP
EX-10.1
EX-10.1
Filename: ex10-1.htm · Sequence: 3
Exhibit
10.1
Certain
information marked as [***] has been excluded from this exhibit because it is both not material and is the type that the registrant treats
as private or confidential.
Velo3D,
Inc.
Shares
of Common Stock
SALES
AGREEMENT
May
15, 2026
Needham
& Company, LLC
250
Park Avenue
New
York, New York 10177
Cantor
Fitzgerald & Co.
110
East 59th Street, 6th Floor
New
York, New York 10022
Craig-Hallum
Capital Group, LLC
323
N Washington Ave., Suite 300
Minneapolis,
MN 55401
Ladies
and Gentlemen:
Velo3D,
Inc., a Delaware corporation (the “Company”), confirms as follows its agreements with Needham & Company, LLC, Cantor
Fitzgerald & Co. and Craig-Hallum Capital Group, LLC (each a “Sales Agent,” and collectively, the “Sales Agents”).
1.
Issuance and Sale of Shares.
(a)
On the basis of the representations, warranties and agreements of the Company herein contained and subject to all the terms and conditions
of this Sales Agreement (the “Agreement”), the Company agrees that, from time to time during the term of this Agreement,
it may issue and sell through the Sales Agents shares of common stock (the “Placement Shares”) of the Company, par value
$0.00001 per share (the “Common Stock”) (the “ATM Program”); provided, however, that in no event
shall the Company issue or sell through the Sales Agents such number or dollar amount of Placement Shares that would (i) exceed 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, (ii) exceed the number of authorized but unissued shares of Common Stock (less shares of Common Stock issuable
upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized
capital stock), (iii) exceed the number or dollar amount of shares of Common Stock permitted to be sold by the Company under Form S-3
(including General Instruction I.B.6. thereof, if applicable) or (iv) exceed the number or dollar amount of shares of Common Stock for
which the Company has filed a Prospectus Supplement (as defined below) (the lesser of clauses (i), (ii), (iii) and (iv), 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 that may be issued and sold under this Agreement shall
be the sole responsibility of the Company and the Sales Agents shall have no obligation in connection with such compliance. The issuance
and sale of Placement Shares through the Sales Agents will be effected pursuant to the Registration Statement filed by the Company with
the Securities and Exchange Commission (the “Commission”) on April 3, 2026 and declared effective by the Commission on April
8, 2026, although nothing in this Agreement shall be construed as requiring the Company to issue shares of Common Stock.
(b)
The Company has filed, in accordance with the provisions of the Securities Act of 1933 (the “Act”), and the rules and regulations
of the Commission thereunder (collectively referred to as the “Rules and Regulations”), with the Commission a registration
statement on Form S-3 (File No. 333-294876), including a base prospectus and together with such amendments thereto as may have been required
to the date of this Agreement, relating to the Common Stock to be issued from time to time by the Company, and which incorporates by
reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934,
as amended (the “Exchange Act”), and the rules and regulations of the Commission thereunder (collectively, the “Exchange
Act Rules and Regulations”). The Company has prepared a prospectus supplement to the base prospectus included as part of the registration
statement to be filed with the Commission, which prospectus supplement relates to the Placement Shares to be issued from time to time
by the Company pursuant to this Agreement (the “Prospectus Supplement”). The Company has furnished or will furnish to the
Sales Agents, for use by the Sales Agents, copies of the base prospectus included as part of such registration statement, as supplemented
by the Prospectus Supplement. The Company may file one or more additional registration statements from time to time that will contain
a base prospectus and a related prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement
Shares. Except where the context otherwise requires, the initial registration statement on Form S-3 (File No. 333-294876) and any such
additional registration statement, including the amendments thereto, the exhibits and any schedules thereto, the documents otherwise
deemed to be part thereof, included or incorporated by reference therein, and including any information contained in a Prospectus (as
defined below) subsequently filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations (“Rule 424(b)”)
or deemed to be a part of such registration statement pursuant to the Rules and Regulations (including Rule 430B thereof), and any registration
statement relating to the offering contemplated by this Agreement and filed pursuant to Rule 462(b) of the Rules and Regulations (“Rule
462(b)”) is herein called the “Registration Statement.” The base prospectus or base prospectuses, including all documents
incorporated by reference therein, included in the Registration Statement, as it may be supplemented, if applicable, by the Prospectus
Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company
with the Commission pursuant to Rule 424(b), together with any then-issued Issuer Free Writing Prospectuses (as defined below), is herein
called the “Prospectus.”
(c)
Any reference herein to the Registration Statement, any base prospectus, any Prospectus Supplement, the Prospectus or any Issuer Free
Writing Prospectus shall be deemed to refer to and include the documents, if any, that are or are deemed to be incorporated by reference
therein or from which information is so incorporated by reference (the “Incorporated Documents”), including, unless the context
otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,”
“amendment” or “supplement” with respect to the Registration Statement, any base prospectus, any Prospectus Supplement,
the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange
Act on or after the most recent effective date of the Registration Statement, or the respective dates of the base prospectus, such Prospectus
Supplement, the Prospectus or such Issuer Free Writing Prospectus, as the case may be, and deemed to incorporated by reference therein.
For purposes of this Agreement, all references to the Registration Statement, the Prospectus or any amendment or supplement thereto shall
be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval
system or, if applicable, the Interactive Data Electronic Application system when used by the Commission (collectively, “EDGAR”).
-2-
2.
Placements. Each time that the Company wishes to issue and sell Placement Shares hereunder (each, a “Placement”),
it will notify a Sales Agent (the “Designated Agent”) by email notice (or other method mutually agreed to by the parties)
(each such notice, a “Placement Notice”) containing the parameters in accordance with which the Company desires such Placement
Shares to be sold, which at a minimum shall include the maximum number or amount of Placement Shares to be sold, the time period during
which sales are requested to be made, any limitation on the number or amount of Placement Shares that may be sold in any day on which
the Common Stock is traded on the Exchange (any such day, a “Trading Day”) and any minimum price below which sales may not
be made, 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
3), and shall be addressed to each of the individuals from the Designated Agent set forth on Schedule 3, as such Schedule
3 may be amended from time to time. The Placement Notice shall be effective upon receipt by the Designated Agent unless and until (a)
the Designated Agent declines to accept the terms contained therein for any reason, in its sole discretion, (b) the Sales Agents suspend
sales under the Placement Notice for any reason in their sole discretion in accordance with this Agreement, (c) the entire number or
amount of the Placement Shares thereunder or under this Agreement have been sold, (d) the Company suspends or terminates the Placement
Notice or (e) this Agreement has been terminated under the provisions of Section 11. The amount of any discount, commission or other
compensation to be paid by the Company to the Designated Agent in connection with the sale of the Placement Shares shall be calculated
in accordance with the terms set forth in Schedule 2. It is expressly acknowledged and agreed that neither the Company nor the
Designated Agent will have any obligation whatsoever with respect to a Placement or any Placement Shares unless and until the Company
delivers a Placement Notice to the Designated Agent and the Designated Agent does not decline such Placement Notice pursuant to the terms
set forth above, and then only upon the terms specified therein and herein. In the event of a conflict between the terms of this Agreement
and the terms of a Placement Notice, the terms of the Placement Notice will control with respect to the matters covered thereby.
3.
Sale of Placement Shares by the Designated Agent. On the basis of the representations, warranties and agreements of the Company
herein contained and subject to all the terms and conditions of this Agreement, upon the Designated Agent’s acceptance of the terms
of a Placement Notice, and unless the sale of the Placement Shares described therein has been declined, suspended or otherwise terminated
in accordance with the terms of this Agreement, the Designated Agent, for the period specified in the Placement Notice, will use its
commercially reasonable efforts consistent with its normal trading and sales practices and applicable laws and regulations and the rules
of the Nasdaq Capital Market (the “Exchange”) to sell such Placement Shares up to the number or amount specified in, and
otherwise in accordance with the terms of, such Placement Notice. The Designated Agent will provide written confirmation to the Company
no later than the opening of the Trading Day immediately following the Trading Day on which it has made sales of Placement Shares hereunder
setting forth the number or amount of Placement Shares sold on such Trading Day, the average price at which Placement Shares were sold
and the gross proceeds generated from such sales. Subject to the terms of the Placement Notice, the Designated Agent may sell Placement
Shares by any method permitted by law deemed to be an “at the market offering” as defined in Rule 415(a)(4) of the Rules
and Regulations, including sales made directly on or through the Exchange or any other existing trading market for the Common Stock,
in negotiated transactions at market prices prevailing at the time of sale or at prices related to such prevailing market prices and/or
any other method permitted by law. The Company acknowledges and agrees that (a) there can be no assurance that any Designated Agent will
be successful in selling Placement Shares, (b) no Designated Agent will incur any liability or obligation to the Company or any other
person or entity if it does not sell Placement Shares for any reason other than a failure by the applicable Designated Agent to use its
commercially reasonable efforts consistent with its normal trading and sales practices and applicable laws and regulations to sell such
Placement Shares as required under this Agreement and (c) no Designated Agent shall be under any obligation to purchase Placement Shares
on a principal basis pursuant to this Agreement, except as otherwise agreed by the applicable Designated Agent and the Company in a separate
written agreement setting forth the terms of such sale.
-3-
4.
Suspension of Sales.
(a)
The Company or the Designated Agent may, upon 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 automatic 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 any sale of Placement Shares (each,
a “Suspension”); provided, however, that such Suspension shall not affect or impair any party’s obligations
with respect to any Placement Shares sold hereunder prior to the receipt of such notice. While a Suspension is in effect, any obligation
under Sections 7(s), 7(t), and 7(u) with respect to the delivery of certificates, opinions and comfort letters to the Sales Agents, shall
be waived. Each of the parties agrees that no notice under this Section 4 shall be effective against any other party unless notice is
sent by one of the individuals named on Schedule 3 hereto to one of the individuals named on Schedule 3 hereto, as such Schedule may
be amended from time to time.
(b)
Notwithstanding any other provision of this Agreement, during any period in which the Company is, or could be deemed to be, in possession
of material non-public information, the Company and the Sales Agents agree that (i) no sale of Placement Shares will take place, (ii)
the Company shall not request the sale of any Placement Shares and shall cancel any effective Placement Notices instructing the Sales
Agents to make any sales and (iii) the Sales Agents shall not be obligated to sell or offer to sell any Placement Shares.
5.
Settlement and Delivery.
(a)
Unless otherwise specified in the applicable Placement Notice, settlement for sales of Placement Shares will occur on the first Trading
Day (or such other day as is industry practice for regular-way trading) following the date on which such 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 gross sales price received by the Designated Agent, after deduction of
(i) the Designated Agent’s commission, discount or other compensation for such sales payable by the Company pursuant to Section
2 hereof, (ii) any other amounts due and payable by the Company to the Designated Agent pursuant to Section 7(i) of this Agreement and
(iii) any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales.
(b)
On or before each Settlement Date, the Company will, or will cause its transfer agent to, electronically transfer the Placement Shares
being sold by crediting the Designated Agent or its respective designee’s account (provided the Designated Agent shall have given
the Company written notice of such designee at least one Trading Day prior to the Settlement Date) at The Depository Trust Company 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 duly authorized, freely tradeable, transferable, registered shares of Common Stock in good deliverable form.
On each Settlement Date, the Designated Agent will deliver the related Net Proceeds in same day funds to an account designated by the
Company on or prior to the Settlement Date. In addition to and in no way limiting the rights and obligations set forth in Section 9 hereto,
the Company agrees that if the Company or its transfer agent (if applicable), defaults in its obligation to deliver duly authorized,
freely tradeable, transferable, registered Placement Shares on a Settlement Date, the Company will (i) hold the Sales Agents harmless
against any loss, claim, damage, or expense (including reasonable and documented legal fees and expenses), as incurred, arising out of
or in connection with such default by the Company or its transfer agent (if applicable), (ii) pay to the Designated Agent any commission,
discount or other compensation to which it would otherwise have been entitled absent such default and (iii) take all necessary action
to cause the full amount of any Net Proceeds that were delivered to the Company’s account with respect to such settlement, together
with any costs incurred by the Designated Agent in connection with recovering such Net Proceeds, to be immediately returned to the Designated
Agent no later than 5:00 p.m., New York City time, on such Settlement Date, by wire transfer of immediately available funds to an account
designated by the Designated Agent.
-4-
(c)
Certificates for the Placement Shares, if any, shall be in such denominations and registered in such names as the Designated Agent may
request in writing one Business Day (as defined below) before the applicable Settlement Date. Certificates for the Placement Shares,
if any, will be made available by the Company for examination and packaging by the Designated Agent in New York City not later than 12:00
p.m., New York City time, on the Settlement Date.
(d)
Under no circumstances shall the Company cause or request the offer or sale of any Placement Shares if, after giving effect to the sale
of such Placement Shares, the aggregate number or gross sales proceeds of Placement Shares sold pursuant to this Agreement would exceed
the lesser of (i) together with all sales of Placement Shares under this Agreement, the Maximum Amount, (ii) the amount available for
offer and sale under the then-effective Registration Statement and (iii) the amount authorized from time to time to be issued and sold
under this Agreement by the Company’s board of directors or a duly authorized committee thereof, and notified to the Designated
Agent in writing. Under no circumstances shall the Company cause or request the offer or sale of any Placement Shares pursuant to this
Agreement at a price lower than the minimum price authorized from time to time by the Company’s board of directors or a duly authorized
committee thereof, and notified to the Designated Agent in writing. Notwithstanding anything to the contrary contained herein, the parties
hereto acknowledge and agree that compliance with the limitations set forth in this Section 5(d) on the number or dollar amount of Placement
Shares that may be issued and sold under this Agreement from time to time shall be the sole responsibility of the Company, and the Sales
Agents shall have no obligation in connection with such compliance.
(e)
With respect to the offering and sale of Placement Shares pursuant to this Agreement, the Company agrees that under no circumstances
will it issue a Placement Notice to any Designated Agent in which the selling period under such Placement Notice includes any dates in
which a Placement Notice issued to any other Designated Agent is in effect and that any offer to sell Placement Shares, any solicitation
of an offer to buy Placement Shares, and any sales of Placement Shares shall only be effected by or through one Designated Agent on any
single given day.
6.
Representations and Warranties of the Company
The
Company represents, warrants and covenants to the Sales Agents that as of the date of this Agreement and as of each Applicable Time (as
defined below), unless such representation, warranty or covenant specifies a different date or time:
(a)
The Company and the transactions contemplated by this Agreement meet the requirements for and comply with the conditions for the use
of Form S-3 (including General Instructions I.A and I.B.1.) under the Act. The Registration Statement has been filed with the Commission
and has been declared effective by the Commission under the Act prior to the issuance of any Placement Notice by the Company. The Prospectus
Supplement will name the Sales Agents as the agents engaged by the Company in the section entitled “Plan of Distribution.”
The Registration Statement and the offer and sale of Placement Shares as contemplated hereby meet the requirements of Rule 415 under
the Rules and Regulations and comply in all material respects with such Rule. The Company has not received, and has no notice from the
Commission of, any notice pursuant to Rule 401(g)(1) under the Act objecting to the use of the shelf registration statement form. 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 all documents incorporated by reference therein that were filed with the Commission on or
prior to the date of this Agreement have been delivered to the Sales Agents and their counsel, or are available through EDGAR. 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 the Sales Agents have consented.
-5-
(b)
No order preventing or suspending the use of the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus has been
issued by the Commission, and no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment
thereto has been issued, and no proceeding for that purpose has been initiated or threatened by the Commission. On the date the Registration
Statement became or becomes effective (the “Effective Date”), on the date any Prospectus Supplement, the Prospectus, any
Issuer Free Writing Prospectus or any amendment or supplement thereto was or is filed with the Commission pursuant to the Act or the
Exchange Act, at each Applicable Time and at all times during the period through and including any Settlement Date and when any post-effective
amendment to the Registration Statement becomes effective, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus
(in each case, as amended or as supplemented, if applicable), including the financial statements, if any, included or incorporated by
reference therein, did and will comply in all material respects with all applicable requirements of the Act, the Exchange Act, the Exchange
Act Rules and Regulations and the Rules and Regulations, and did and will contain all information required to be provided therein in
compliance in all material respects with the Act, the Exchange Act, the Exchange Act Rules and Regulations and the Rules and Regulations.
There are no contracts or other documents that are required under the Act to be filed as exhibits to the Registration Statement that
are not so filed.
When
it became, becomes or is deemed to become effective, no part of the Registration Statement or any amendment or supplement thereto did,
does or will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading. The Prospectus and any amendment and supplement thereto, as of its date and at each Applicable
Time, did not, does not and will not include an untrue statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which they were made, not misleading. Each Issuer Free Writing
Prospectus, as of its issue date and as of each Applicable Time, 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 document incorporated
by reference therein that has not been superseded or modified.
As
used in this subsection and elsewhere in this Agreement:
“Applicable
Time” means (i) each Representation Date (as defined below), (ii) the time of each sale of any Placement Shares pursuant to this
Agreement and (iii) each Settlement Date.
“Issuer
Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations
(“Rule 433”), relating to the Placement Shares that (i) is required to be filed with the Commission by the Company or (ii)
is exempt from filing pursuant to Rule 433(d)(5)(i), in each case, in the form filed or required to be filed with the Commission or,
if not required to be filed, in the form retained in the Company’s records pursuant to Rule 433(g).
The
foregoing representations and warranties in this Section 6(b) do not apply to any statements or omissions made in reliance on, and in
conformity with, information relating to the Sales Agents furnished in writing to the Company by the Sales Agents specifically for inclusion
in the Registration Statement, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus, or any amendment or supplement
thereto. The Company acknowledges that the statements set forth in the first sentence of the fifth paragraph and the ninth paragraph under the caption “Plan of Distribution” in the Prospectus Supplement (the “Sales Agents’ Information”)
constitute the only information relating to the Sales Agents furnished in writing to the Company by the Sales Agents specifically for
inclusion in the Registration Statement, the Prospectus Supplement, the Prospectus and any Issuer Free Writing Prospectus.
-6-
(c)
In connection with the offering of the Placement Shares, (i) at the times specified in Rule 164 and Rule 433 of the Rules and Regulations
and (ii) as of the date hereof, the Company was not and is not an “ineligible issuer” (as defined in Rule 405 of the Rules
and Regulations (“Rule 405”)), without taking account of any determination by the Commission pursuant to Rule 405 that it
is not necessary that the Company be considered an ineligible issuer.
(d)
The Incorporated Documents, when they became or become effective or were or are filed with the Commission, as the case may be, complied
or will comply in all material respects with the requirements of the Act and the Exchange Act, as applicable, and the Rules and Regulations
and the Exchange Act Rules and Regulations, as applicable; and any further documents filed and incorporated by reference subsequent to
the Effective Date shall, when they are filed with the Commission, comply in all material respects with the requirements of the Act and
the Exchange Act, as applicable, and the Rules and Regulations and the Exchange Act Rules and Regulations, as applicable. Each Incorporated
Document did not, and any further documents filed and incorporated by reference therein will not, when filed with the Commission, contain
an untrue statement of a material fact or omit to state a material fact required to be stated in such document or necessary in order
to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(e)
The Company does not own, directly or indirectly, any shares of stock or any other equity or long-term debt securities of any corporation
or have any equity interest in any corporation, firm, partnership, joint venture, association or other entity, other than the subsidiaries
listed in Exhibit 21 to its most recent Annual Report on Form 10-K (collectively, the “Subsidiaries”). The Company and each
of its Subsidiaries is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization. The
Company and each of its Subsidiaries has full power and authority to conduct all the activities conducted by it, to own or lease all
the assets owned or leased by it and to conduct its business as described in the Registration Statement and the Prospectus. The Company
and each of its Subsidiaries is duly licensed or qualified to do business and in good standing as a foreign corporation or such other
entity in all jurisdictions in which the nature of the activities conducted by it or the character of the assets owned or leased by it
makes such license or qualification necessary, except to the extent that the failure to be so qualified or be in good standing could
not, individually or in the aggregate, have a material adverse effect or could reasonably be expected to have a material adverse effect
on the Company and its Subsidiaries, taken as a whole, or their respective assets, businesses, operations, earnings, properties, prospects,
conditions (financial or other), stockholders’ equity or results of operations, or prevent or materially interfere with consummation
of the transactions contemplated hereby (such effect is referred to herein as a “Material Adverse Effect”). All of the outstanding
shares of capital stock of each Subsidiary have been duly authorized and validly issued, are fully paid and nonassessable and free of
any preemptive or similar rights, and are wholly owned by the Company free and clear of all claims, liens, charges, security interests,
rights of first refusal and encumbrances; there are no securities outstanding that are convertible into or exercisable or exchangeable
for capital stock of any Subsidiary. The Company and its Subsidiaries are not engaged in any discussions or a party to any agreement
or understanding, written or oral, regarding the acquisition of an interest in any corporation, firm, partnership, joint venture, association
or other entity where such discussions, agreements or understandings would require disclosure in, or amendment to, the Registration Statement.
Complete and correct copies of the Certificate of Incorporation, as amended (the “Certificate of Incorporation”) and of the
Second Amended and Restated Bylaws (the “Bylaws”) of the Company and the organizational documents of each of its Subsidiaries
and all amendments thereto have been delivered to the Sales Agents and their counsel, or are available through EDGAR.
-7-
(f)
The Company has authorized, issued and outstanding capital stock as set forth under the caption “Capitalization” in the Prospectus
Supplement as of the date set forth therein (other than the grant of additional options under the Company’s existing stock option
and/or equity incentive plans, 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, Common Stock outstanding on the date hereof) and
such authorized capital stock conforms in all material respects to the description thereof set forth in the Registration Statement and
the Prospectus. All of the outstanding shares of capital stock of the Company have been duly authorized, validly issued, are fully paid
and nonassessable, were issued in compliance in all material respects with all applicable state and federal securities laws and are not
subject to any preemptive rights, rights of first refusal or similar rights. The Placement Shares have been duly authorized and, when
issued and delivered by the Company against payment therefor as contemplated hereby, will be validly issued, fully paid and nonassessable,
free and clear of any pledge, lien, encumbrance, security interest or other claim, and will be registered pursuant to Section 12 of the
Exchange Act; no preemptive rights, rights of first refusal or similar rights exist with respect to any of the Placement Shares or the
issue and sale thereof. The description of the capital stock of the Company included or incorporated by reference in the Registration
Statement, the Prospectus Supplement and the Prospectus is complete and accurate in all material respects. The Placement Shares, when
issued, will conform to the description thereof set forth in or incorporated into the Prospectus. Except as disclosed in the Prospectus
Supplement and the Prospectus, the Company does not have outstanding and will not have outstanding any options to purchase, or any rights
or warrants to subscribe for, or any other securities or obligations convertible into, or any other contracts or commitments to issue
or sell, any shares of capital stock, or any such warrants, convertible securities or obligations. The certificates evidencing the Placement
Shares, if any, are in due and proper legal form and have been duly authorized for issuance by the Company. The issuance and sale of
the Placement Shares as contemplated hereby will not cause any holder of any share capital, securities convertible into or exchangeable
or exercisable for share capital or options, warrants or other rights to purchase share capital or any other securities of the Company
to have any right to acquire any preferred shares or other securities of the Company.
(g)
At the time the Registration Statement was originally declared effective, and at the time the Company’s most recent Annual Report
on Form 10-K was filed with the Commission, the Company met the then-applicable requirements for the use of Form S-3 under the Act, including,
but not limited to, General Instruction I.B.1. of Form S-3. The Company meets the requirements for use of Form S-3 under the Act specified
in Conduct Rule 5110(h)(1)(C) of the Financial Industry Regulatory Authority, Inc. (“FINRA”). The aggregate market value
of the outstanding voting and non-voting common equity (as defined in Rule 405) of the Company held by persons other than affiliates
of the Company (pursuant to Rule 144 of the Rules and Regulations, those that directly, or indirectly through one or more intermediaries,
control, or are controlled by, or are under common control with, the Company) (the “Non-Affiliate Shares”), was equal to
or greater than $75 million (calculated by multiplying (i) the highest price at which the common equity of the Company closed on the
Exchange within 60 days of the date of the filing of the Registration Statement by (ii) the number of Non-Affiliate Shares). The Company
is not a shell company (as defined in Rule 405) and has not been a shell company for at least 12 calendar months previously and if it
has been a shell company at any time previously, has filed current Form 10 information (as defined in Instruction I.B.6. of Form S-3)
with the Commission at least 12 calendar months previously reflecting its status as an entity that is not a shell company.
-8-
(h)
The financial statements, together with the related notes and schedules, included or incorporated by reference in the Registration Statement
or the Prospectus present fairly in all material respects the financial condition of the Company and its consolidated Subsidiaries as
of the respective dates thereof and the results of operations, cash flows and changes in stockholders’ equity of the Company and
its consolidated Subsidiaries for the respective periods covered thereby, all in conformity with generally accepted accounting principles
applied on a consistent basis throughout the entire period involved. No other financial statements or schedules (historical or pro forma)
are required by the Act, the Exchange Act, the Exchange Act Rules and Regulations or the Rules and Regulations to be included or incorporated
by reference in the Registration Statement or the Prospectus. To the extent applicable, any pro forma financial statements, information
or data included or incorporated by reference in the Registration Statement and the Prospectus comply with the requirements of Regulation
S-X of the Act, including, without limitation, Article 11 thereof, fairly present the information set forth therein in all material respects,
and the assumptions used in the preparation of such pro forma financial statements and data are reasonable, the pro forma adjustments
used therein are appropriate to give effect to the circumstances referred to therein and the pro forma adjustments have been properly
applied to the historical amounts in the compilation of those statements and data. Frank, Rimerman + Co. LLP (the “Accountants”),
who have reported on the consolidated financial statements and schedules of the Company, are and, during the periods covered by their
report were, an independent registered public accounting firm with respect to the Company within the meaning of, and as required by,
the Act, the Rules and Regulations and the Public Company Accounting Oversight Board (United States) (“PCAOB”). To the Company’s
knowledge, the Accountant is not in violation of the auditor independence requirements of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley
Act”) with respect to the Company. The other financial and statistical data included and incorporated by reference in the Registration
Statement and the Prospectus present accurately and fairly the information shown therein and have been compiled on a basis consistent
with the audited financial statements incorporated by reference in the Registration Statement and the Prospectus and the books and records
of the Company. All disclosures contained in the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus regarding
“non-GAAP financial measures” (as such term is defined in the Rules and Regulations) comply with Regulation G of the Exchange
Act and Item 10(e) of Regulation S-K under the Act, to the extent applicable. The interactive data in eXtensible Business Reporting Language
included or incorporated by reference in the Registration Statement and the Prospectus fairly presents the information called for in
all material respects and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto. The Prospectus
delivered to Sales Agents for use in connection with the sale of the Placement Shares pursuant to this Agreement will be identical to
the versions of the Prospectus created to be transmitted to the Commission for filing via EDGAR, except to the extent permitted by Regulation
S-T.
(i)
Except as disclosed in the Prospectus Supplement and the Prospectus, no person, as such term is defined in Rule 1-02 of Regulation S-X
under the Rules and Regulations (each, a “Person”), has the right, contractual or otherwise, to cause the Company to issue
or sell to such Person any Common Stock or shares of any other capital stock or other securities of the Company. Except as disclosed
in the Prospectus Supplement and the Prospectus, no Person has any preemptive rights, resale rights, rights of first refusal, rights
of co-sale or any other rights (whether pursuant to a “poison pill” provision or otherwise) to purchase any Common Stock
or shares of any other capital stock or other securities of the Company. Except as contemplated by this Agreement, no Person has the
right to act as an underwriter or as a financial advisor to the Company in connection with the offer and sale of the Common Stock.
(j)
Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there has not
been any Material Adverse Effect, the occurrence of any development that the Company reasonably expects could result in a Material Adverse
Effect or any material adverse change, or any development that could reasonably be expected to result in a material adverse change, in
the general affairs, business, management, condition (financial or otherwise), earnings, results of operations, properties, operations,
assets, liabilities or prospects of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the
ordinary course of business (a “Material Adverse Change”), (ii) there has not been any change in the capitalization or long-term
indebtedness of the Company of the Company (other than in connection with the exercise of options or settlement of equity awards to purchase
the Common Stock granted pursuant to the Company’s stock option or equity incentive plans from the shares reserved therefor as
described in the Registration Statement and the Prospectus, the exercise of warrants described in the Registration Statement and the
Prospectus, and the grant of stock options or equity awards in the ordinary course of business and consistent with the past practice
of the Company), (iii) neither the Company nor any of its Subsidiaries has incurred, except in the ordinary course of business as described
in the Prospectus, any material liabilities or obligations, direct or contingent (including any off-balance sheet obligations), nor has
the Company or any of its Subsidiaries entered into any material transactions other than pursuant to this Agreement and the transactions
referred to herein and (iv) the Company has not paid, made or declared any dividends or other distributions of any kind on any class
of its capital stock or the capital stock of any Subsidiary.
-9-
(k)
The Company and its Subsidiaries are not, will not become as a result of or after giving effect to the transactions contemplated hereby
(including the offer and sale of the Placement Shares), and will not conduct their business in a manner that would cause any of them
to be, an “investment company,” an entity “controlled” by an “investment company” or an “affiliated
person” of, or “promoter” or “principal underwriter” for, an “investment company,” as each
such terms are defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”), registered or required
to be registered under the Investment Company Act.
(l)
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.
(m)
Except as disclosed in the Prospectus Supplement and the Prospectus, there are no actions, suits or proceedings pending or, to the knowledge
of the Company, threatened against or affecting the Company, any of its Subsidiaries or any of its or their officers in their capacity
as such, nor any basis therefor, before or by any federal or state court, commission, regulatory body, administrative agency or other
governmental body, domestic or foreign, wherein an unfavorable ruling, decision or finding would reasonably be expected to have a Material
Adverse Effect. To the knowledge of the Company, there are no current or pending legal, governmental or regulatory audits or investigations,
actions, suits or proceedings that are required under the Act to be described in the Registration Statement or the Prospectus that are
not so described.
(n)
The Company and each Subsidiary has and will have performed all the obligations required to be performed by it, and is not and will not
be, (i) 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 any
other contract, 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 (ii) in
violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority,
which default or violation, in the cases of clauses (i) or (ii), could reasonably be expected to have a Material Adverse Effect. To the
knowledge of the Company, no other party under any contract or other instrument to which it or any of its Subsidiaries is a party is
in default in any respect thereunder, which default could reasonably be expected to have a Material Adverse Effect. Neither the Company
nor any of its Subsidiaries is or will be in violation of any provision of its certificate or articles of incorporation or by-laws or
similar organizational documents. Neither the Company nor any of its Subsidiaries has (i) failed to pay any dividend or sinking fund
installment on preferred stock or (ii) defaulted on any installment or other payment 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.
-10-
(o)
No consent, approval, authorization or order of, or any filing or declaration with, any court, arbitrator or governmental or regulatory
agency or body is required for the consummation of the transactions contemplated hereby, except such as have been obtained under the
Act or the Rules and Regulations and such as may be required under state securities or blue sky (“Blue Sky”) laws, the by-laws
and rules of FINRA or the Exchange in connection with the sale of the Placement Shares by the Sales Agents.
(p)
The Company has full corporate 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 constitutes a legal, valid and binding agreement of the
Company, enforceable against the Company in accordance with the terms hereof. The execution and performance of this Agreement and the
consummation of the transactions contemplated hereby (including the issuance and sale of the Placement Shares) will not result in the
creation or imposition of any lien, charge or encumbrance upon any of the assets of the Company or any of its Subsidiaries pursuant to
the terms or provisions of, or result in a breach or violation of any of the terms or provisions of, or conflict with or constitute a
default under, or give any party a right to terminate any of its obligations under, or result in the acceleration of any obligation under,
(i) the certificate or articles of incorporation or by-laws or other organizational documents of the Company or any of its Subsidiaries,
(ii) any indenture, mortgage, deed of trust, voting trust agreement, loan agreement, bond, debenture, note agreement or other evidence
of indebtedness, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which
the Company, any of its Subsidiaries or any of its or their properties is bound or affected, or (iii) violate or conflict with any judgment,
ruling, decree, order, statute, rule or regulation of any court or other governmental agency or body applicable to the business or properties
of the Company or any of its Subsidiaries, which lien, charge, encumbrance, breach, violation, conflict, default, termination or acceleration,
in the cases of clauses (ii) or (iii), would reasonably be expected to have a Material Adverse Effect.
(q)
The Company and its Subsidiaries have good and marketable title in fee simple to all properties and assets described in the Registration
Statement and the Prospectus as owned by them, free and clear of all liens, charges, encumbrances, claims or restrictions, except such
as are not material to the business of the Company or its Subsidiaries. The Company and its Subsidiaries have valid, subsisting and enforceable
leases for the properties described in the Registration Statement and the Prospectus as leased by them. The Company and its Subsidiaries
own or lease all such properties as are necessary to their operations as now conducted or as proposed to be conducted, except where the
failure to so own or lease could not be reasonably expected to have a Material Adverse Effect. Each of the properties of the Company
and its Subsidiaries complies in all material respects with all applicable codes, laws and regulations (including, without limitation,
building and zoning codes, laws and regulations and laws relating to access to such properties), except for such failures to comply that
could not, individually or in the aggregate, reasonably be expected to interfere in any material respect with the use made and proposed
to be made of such property by the Company and its Subsidiaries or otherwise have a Material Adverse Effect. None of the Company or its
Subsidiaries has received from any governmental or regulatory authorities any notice of any condemnation of, or zoning change affecting,
the properties of the Company and its Subsidiaries, and the Company knows of no such condemnation or zoning change that is threatened,
except for such that could not reasonably be expected to interfere in any material respect with the use made and proposed to be made
of such property by the Company and its Subsidiaries or otherwise could have, individually or in the aggregate, a Material Adverse Effect.
(r)
There is no document, contract, permit or instrument, transaction, relationship, arrangement or off-balance sheet transaction (including,
without limitation, any structural finance, special purpose or limited purpose entity or any “variable interests” in “variable
interest entities,” as such terms are defined in Financial Accounting Standards Board Interpretation No. 46, as codified in Accounting
Standards Codification Topic 810) of a character required to be described in the Registration Statement or the Prospectus or to be filed
as an exhibit to the Registration Statement that is not described or filed as required. All contracts to which the Company or any of
its Subsidiaries is a party that are described in, or filed with, the Registration Statement or the Prospectus have been duly authorized,
executed and delivered by the Company or such Subsidiary, constitute valid and binding agreements of the Company or such Subsidiary and
are enforceable against and by the Company or such Subsidiary in accordance with the terms thereof, except that the enforcement of such
contracts may be subject to (i) bankruptcy, insolvency, reorganization, receivership, moratorium, fraudulent conveyance or other similar
laws relating to creditor’s rights generally and (ii) general principles of equity, public policy and the discretion of the court
before which any proceeding therefor may be brought.
-11-
(s)
None of the Company, any of its Subsidiaries or any of their respective directors, officers or controlling persons has taken, directly
or indirectly, any action designed, or that might reasonably be expected to cause or result, under the Exchange Act or otherwise, in,
or that has constituted, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of
the Placement Shares.
(t)
Except as disclosed in the Prospectus Supplement and the Prospectus, no holder of securities of the Company has rights, contractual or
otherwise, to require the Company to register any securities, or to include any securities in the Registration Statement or the offering
contemplated thereby, whether as a result of the filing or effectiveness of the Registration Statement, the sale of the Placement Shares
as contemplated hereby or otherwise, which rights have not been duly waived in a writing furnished to the Sales Agents by the holder
thereof as of the date hereof.
(u)
The Common Stock is registered under Section 12(b) of the Exchange Act and is currently listed on the Exchange under the trading symbol
“VELO.” There is no action pending by the Company or, to the Company’s knowledge, by the Exchange designed to, or likely
to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from the
Exchange, nor has the Company received any notification that the Commission or the Exchange is contemplating terminating such registration
or listing. The Company is in compliance in all material respects with all applicable listing requirements of the Exchange.
(v)
(i) The Company and each of its Subsidiaries owns or has adequate rights to use all trademarks, trade names, domain names, patents, patent
rights, mask works, copyrights, technology, know-how (including trade secrets and other unpatented or unpatentable proprietary or confidential
information, systems or procedures), service marks, trade dress rights and other intellectual property and registrations and applications
for registration for any of the foregoing (collectively, “Intellectual Property”) and has such other licenses, approvals
and governmental authorizations, in each case, sufficient to conduct its business as now conducted and as now proposed to be conducted,
and, to the Company’s and its Subsidiaries’ knowledge, there are no rights of third parties to any such Intellectual Property
owned by the Company and its Subsidiaries and none of the foregoing Intellectual Property rights owned or licensed by the Company or
any of its Subsidiaries is invalid or unenforceable, (ii) the Company has no knowledge of any infringement by it or any of its Subsidiaries
of Intellectual Property rights of others, and there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding
or claim by others that the Company and its Subsidiaries infringe or otherwise violate any Intellectual Property rights of others, where
such infringement or violation could have a Material Adverse Effect, (iii) the Company is not aware of any infringement, misappropriation
or violation by others of, or conflict by others with rights of the Company or any of its Subsidiaries with respect to, any Intellectual
Property, (iv) there is no suit, proceeding or claim being made against the Company or any of its Subsidiaries or, to the knowledge of
the Company and its Subsidiaries, any employee of the Company or any of its Subsidiaries, regarding Intellectual Property, challenging
the Company’s and its Subsidiaries’ rights in or to any such Intellectual Property or alleging other infringement that could
have a Material Adverse Effect, and the Company is unaware of any facts which could form a reasonable basis for any such action, suit,
proceeding or claim, (v) to the Company’s knowledge, there is no third-party U.S. patent or published U.S. patent application that
contains claims for which an “interference proceeding” (as defined in 35 U.S.C. § 135) has been commenced against any
patent or patent application described in the Prospectus as being owned by or licensed to the Company and (vi) the Company and its Subsidiaries
have not received any notice of infringement with respect to any patent or any notice challenging the validity, scope or enforceability
of any Intellectual Property owned by or licensed to the Company or any of its Subsidiaries, in each case the loss of which patent or
Intellectual Property (or loss of rights thereto) would reasonably be expected to have a Material Adverse Effect. The Company and its
Subsidiaries have taken all reasonable steps necessary to secure their interests in such Intellectual Property from their employees and
contractors (including, but not limited to, assignments of such Intellectual Property from such employees and contractors) and to protect
the confidentiality of all of their confidential information and trade secrets and that of third parties in their possession to the extent
contractually required to do so.
-12-
(w)
None of the Intellectual Property or technology (including information technology and outsourced arrangements) employed by the Company
or the Subsidiaries has been obtained or is being used by the Company or the Subsidiaries in violation of any contractual obligation
binding on the Company or any of the Subsidiaries or any of their respective officers, directors or employees, where such violation could
have a Material Adverse Effect. The Company and the Subsidiaries own or have a valid right to access and use all computer systems, networks,
hardware, software, databases, websites and equipment used to process, store, maintain and operate data, information and functions used
in connection with the business of the Company and the Subsidiaries (the “Company IT Systems”). The Company IT Systems are
adequate for, and operate and perform in all material respects as required in connection with, the operation of the business of the Company
and the Subsidiaries as currently conducted, except as would not reasonably be expected to have a Material Adverse Effect.
(x)
The Company and each of its Subsidiaries have filed all federal, state, local and foreign tax returns that have been required to be filed
and has paid all taxes and assessments shown thereon to the extent that such taxes or assessments have become due. Neither the Company
nor any of its Subsidiaries has any tax deficiency, penalty or assessment that has been or, to the knowledge of the Company, might be
asserted or threatened against it that could have a Material Adverse Effect. On each Settlement Date, all stock transfer or other taxes
(other than income taxes) that 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.
(y)
The Company and its Subsidiaries own or possess all authorizations, approvals, orders, licenses, registrations, other certificates and
permits of and from all governmental regulatory officials and bodies, necessary to conduct their respective businesses as contemplated
in the Registration Statement and the Prospectus, except where the failure to own or possess all such authorizations, approvals, orders,
licenses, registrations, other certificates and permits would not be reasonably expected to have a Material Adverse Effect. There is
no proceeding pending or threatened (or any basis therefor known to the Company) that may cause any such authorization, approval, order,
license, registration, other certificate or permit to be revoked, withdrawn, cancelled, suspended or not renewed; and the Company and
each of its Subsidiaries is conducting its business in compliance in all material respects with all laws, rules and regulations applicable
thereto (including, without limitation, all applicable federal, state and local environmental laws and regulations); the Company has
not received a notice of non-compliance, nor knows of, nor has reasonable grounds to know of, any facts that could give rise to a notice
of non-compliance with any such laws, rules and regulations, and is not aware of any pending change or contemplated change to any applicable
laws, rules and regulations or governmental positions; in each case that would materially adversely affect the business of the Company
or the business or legal environment under which the Company operates.
-13-
(z)
The Company and each of its Subsidiaries maintains or is covered by insurance of the types and in the amounts reasonably deemed adequate
for its business and customary for companies engaged in similar businesses in similar industries, including, but not limited to, insurance
covering real and personal property owned or leased by the Company and its Subsidiaries against theft, damage, destruction, acts of vandalism
and all other risks customarily insured against, all of which insurance is in full force and effect.
(aa)
Other than as contemplated by this Agreement, the Company has not incurred and will not incur any liability for any finder’s or
broker’s fee or agent’s commission in connection with the execution and delivery of this Agreement or the consummation of
the transactions contemplated hereby.
(bb)
The Company is in compliance in all material respects with, and there 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, all applicable provisions of the Sarbanes-Oxley Act and the rules
and regulations of the Commission thereunder. Each of the principal executive officer and the principal financial officer of the Company
(or each former principal executive officer of the Company and each former principal financial officer of the Company, as applicable)
has made all certifications required by Sections 302 and 906 of the Sarbanes-Oxley Act with respect to all reports, schedules, forms,
statements and other documents required to be filed or furnished 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 Sarbanes-Oxley
Act.
(cc)
Neither the Company nor any of its Subsidiaries nor, to the best of the Company’s knowledge, any director, officer, agent, employee
or other person associated with or acting on behalf of the Company or any of its Subsidiaries has, directly or indirectly, (i) used any
corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity, (ii) made
any unlawful payment from corporate funds to any foreign or domestic government official or employee or foreign or domestic political
party or campaign, (iii) violated any provision of the Foreign Corrupt Practices Act of 1977 or any comparable applicable law in another
jurisdiction, or (iv) made any bribe, illegal rebate, payoff, influence payment, kickback or other unlawful payment. The Company, its
Subsidiaries and each of their respective affiliates have instituted and maintain, and will continue to maintain, policies and procedures
designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(dd)
The books, records and accounts of the Company and its Subsidiaries accurately and fairly reflect, in reasonable detail, the transactions
in, and dispositions of, the assets of, and the results of operations of, the Company and its Subsidiaries. The Company and each of its
Subsidiaries maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management’s general or specific authorization, (ii) transactions are recorded as necessary to permit
preparation of the Company’s consolidated financial statements in accordance 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 Prospectus Supplement and the Prospectus, the Company’s
internal control over financial reporting is effective and the Company is not aware of any material weaknesses in its internal control
over financial reporting. Except as disclosed in the Prospectus Supplement and the Prospectus, since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus, there has been no change in the Company’s internal control
over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control
over financial reporting.
-14-
(ee)
The Company has established and maintains disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e)); such disclosure
controls and procedures have been designed to ensure that material information relating to the Company and its Subsidiaries is made known
to the Company’s principal executive officer and principal financial officer 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 a date within 90 days prior to the filing date of the Form 10-K for the most recently ended fiscal year (such date, the “Evaluation
Date”). The Company presented in its Form 10-K for the most recently ended fiscal year the conclusions of the certifying officers
about the effectiveness of the disclosure controls and procedures based on their evaluations as of the Evaluation Date and the disclosure
controls and procedures are effective. Except as disclosed in the Prospectus Supplement and the Prospectus, since the Evaluation Date,
there have been no significant changes in the Company’s disclosure controls or, to the Company’s knowledge, in other factors
that could significantly affect the Company’s disclosure controls.
(ff)
There are no affiliations or associations between any member of FINRA and any of the Company’s officers, directors or 5% or greater
securityholders, except as disclosed in the Prospectus Supplement and the Prospectus. Neither the Company nor any of the 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 by FINRA).
(gg)
Neither the Company nor any of its Subsidiaries nor, to the knowledge of the Company, any director, officer, agent, employee, affiliate
or representative of the Company or any of its Subsidiaries is a government, individual or entity that is, or is owned or controlled
by an individual or entity that is (i) the subject of any sanctions administered or enforced by the Office of Foreign Assets Control
of the U.S. Treasury Department, the United Nations Security Council, the European Union, His Majesty’s Treasury or other relevant
sanctions authority (“Sanctions”), nor (ii) located, organized or resident in a country or territory that is the subject
of Sanctions (including, without limitation, Burma/Myanmar, Cuba, Iran, Libya, North Korea, Sudan and Syria). The Company and its Subsidiaries
have not engaged in, and are not now engaged in, and will not engage in any dealings or transactions with any government, individual
or entity, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions, and have
instituted and maintain policies and procedures designed to promote and achieve compliance with such Sanctions. The Company and its Subsidiaries
will not, directly or indirectly, use the proceeds of the issuance and sale of the Placement Shares, or lend, contribute or otherwise
make available such proceeds to any subsidiary, joint venture partner or other person (A) to fund or facilitate any activities or business
of or with any government, individual or entity or in any country or territory that, at the time of such funding or facilitation, is
the subject of Sanctions; or (B) in any other manner that will result in a violation of Sanctions by any government, individual or entity
(including any government, individual or entity participating in the offering, whether as underwriter, advisor, investor or otherwise).
(hh)
The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping
and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, the money laundering laws of all applicable
jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines administered or enforced
by any applicable governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or
before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its Subsidiaries with respect
to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
-15-
(ii)
Except as would not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect, (i) each of the Company
and each of its Subsidiaries (A) is in compliance with all applicable rules, laws and regulation relating to pollution, the protection
of health or the environment, and the use, transportation, treatment, storage and disposal of, or exposure to, hazardous or toxic substances
or wastes, (“Environmental Law”) and (B) has received and is in compliance with all permits, licenses or other approvals
required of them under applicable Environmental Law to conduct their respective businesses as described in the Registration Statement
and the Prospectus, (ii) none of the Company nor any of its Subsidiaries has received any notice from any governmental authority or third
party, or otherwise has knowledge, of any asserted claim under Environmental Laws, and (iii) no facts currently exist that could subject
the Company or any of its Subsidiaries to liability under Environmental Laws, including any liability for remediation of any releases
or threatened releases of hazardous or toxic substances.
(jj)
The statistical, industry-related and market-related data included or incorporated by reference in the Registration Statement and the
Prospectus are based on or derived from sources the Company reasonably and in good faith believes are reliable and accurate, and such
data agrees with the sources from which they are derived, and the Company has obtained the written consent to the use of such data from
such sources to the extent required.
(kk)
The Company and each of its Subsidiaries is in compliance in all material respects with all applicable provisions of the Employee Retirement
Income Security Act of 1974, including the regulations and published interpretations thereunder (“ERISA”); no “reportable
event” (as defined in ERISA) has occurred with respect to any “pension plan” (as defined in ERISA) for which the Company
and each of its Subsidiaries would have any material liability; each of the Company and each of its Subsidiaries has not incurred and
does not expect to incur liability under (i) Title IV of ERISA with respect to termination of, or withdrawal from, any “pension
plan” or (ii) Sections 412 or 4971 of the Internal Revenue Code of 1986, including the regulations and published interpretations
thereunder (the “Code”); and each “pension plan” for which the Company or any Subsidiary would have any material
liability that is intended to be qualified under Section 401(a) of the Code is so qualified in all material respects and nothing has
occurred, whether by action or by failure to act, which would cause the loss of such qualification.
(ll)
No material labor dispute with the employees of the Company or any of its Subsidiaries exists or, to the knowledge of the Company, is
imminent; and the Company is not aware of any existing, threatened or imminent labor disturbance by the employees of any of its principal
suppliers, manufacturers or contractors that could have a Material Adverse Effect.
(mm)
No Subsidiary is currently prohibited, directly or indirectly, from paying any dividends to the Company, from making any other distribution
on such Subsidiary’s capital stock, from repaying to the Company any loans or advances to such Subsidiary from the Company or from
transferring any of such Subsidiary’s property or assets to the Company or any other Subsidiary of the Company.
(nn)
The Company and its Subsidiaries have operated its business in a manner compliant in all material respects with all privacy and data
protection laws and regulations applicable to the Company’s and its Subsidiaries’ collection, handling, and storage of its
customers’ data. The Company and its Subsidiaries have policies and procedures in place designed to ensure the integrity and security
of the data collected, handled or stored in connection with the delivery of its product offerings. The Company and its Subsidiaries comply
with, have policies and procedures in place designed to ensure privacy and data protection laws are complied with and takes appropriate
steps which are reasonably designed to assure compliance in all material respects with such policies and procedures.
-16-
(oo)
No forward-looking statement (within the meaning of Section 27A of the Act and Section 21E of the Exchange Act) contained in the Registration
Statement and the Prospectus has been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith.
(pp)
The Company is not a party to any agreement with an agent or underwriter for any other “at the market” or continuous equity
transaction.
(qq)
The Company acknowledges and agrees that Sales Agents have informed the Company that the Sales Agents may, to the extent permitted under
the Act and the Exchange Act, purchase and sell Common Stock for their own respective accounts while this Agreement is in effect, provided,
that (i) no such purchase or sales by the applicable Designated Agent shall take place while a Placement Notice is in effect (except
to the extent such Designated Agent may engage in sales of Placement Shares purchased or deemed purchased from the Company as a “riskless
principal” or in a similar capacity) and (ii) the Company shall not be deemed to have authorized or consented to any such purchases
or sales by such Designated Agent.
(rr)
[Reserved].
(ss)
No statement, representation, warranty or covenant made by the Company in this Agreement or made in any certificate or document required
by this Agreement to be delivered to the Sales Agents was or will be, when made, inaccurate, untrue or incorrect.
Any
certificate signed by an officer of the Company and delivered to the Sales Agents or to counsel for the Sales Agents pursuant to or in
connection with this Agreement shall be deemed to be a representation and warranty by the Company, as applicable, to the Sales Agents
as to the matters set forth therein.
7.
Agreements of the Company.
The
Company covenants and agrees with the Sales Agents as follows:
(a)
The Company will not, either prior to the first Applicable Time or thereafter during such period as the Prospectus is required by law
to be delivered in connection with sales of the Placement Shares by the Sales Agents or a dealer, file any amendment, supplement or other
document under the Exchange Act or the Exchange Act Rules and Regulations relating to the Placement Shares or a security convertible
into the Placement Shares, if such document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus,
unless a copy thereof shall first have been submitted to the Sales Agents for approval within a reasonable period of time prior to the
filing thereof, which approval shall not be unreasonably delayed (provided, however, that the failure of the Company to
obtain the Sales Agents’ approval shall not relieve the Company of any obligation or liability hereunder, or affect the Sales Agents’
right to rely on the representations and warranties made by the Company in this Agreement) (and provided further that, with the
exception of annual reports on Form 10-K and quarterly reports on Form 10-Q, and any amendments thereto, the Company has no obligation
to provide the Sales Agents any advance copy of such filing or to provide the Sales Agents an opportunity to object to such filing if
the filing does not name the Sales Agents or does not relate to the Placement Shares or the transactions herein described).
-17-
(b)
So long as delivery of the Prospectus relating to any Placement Shares may be required to be delivered by the Sales Agents or any dealer
under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 of the Rules and Regulations or
any similar rule), the Company will notify the Sales Agents promptly, and will confirm such advice in writing, (i) when any amendment
to the Registration Statement has been filed or becomes effective or any amendment or supplement to the Prospectus has been filed, in
each case, other than documents incorporated by reference, (ii) of any request by the Commission for amendments or supplements to the
Registration Statement or the Prospectus or for additional information related to the offering of the Placement Shares or to the Registration
Statement, the Prospectus or any Issuer Free Writing Prospectus, (iii) of its receipt of notice or its knowledge of the issuance or threatened
issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or preventing or suspending the
use of the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus or the initiation of any proceedings for that
purpose or the threat thereof, (iv) of the suspension of the qualification of the Placement Shares for offering and sale in any jurisdiction,
or the initiation or threatening of any proceeding for that purpose, and (v) of receipt by the Company or any representative or counsel
to the Company of any other communication from the Commission relating to the Company, the Registration Statement, the Prospectus Supplement,
the Prospectus or the issuance and sale of the Placement Shares. If at any time the Commission shall issue any order suspending the effectiveness
of the Registration Statement or preventing or suspending the use of the Prospectus Supplement, the Prospectus or any Issuer Free Writing
Prospectus, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible moment. If
the Company has omitted any information from the Registration Statement pursuant to Rule 430B of the Rules and Regulations, the Company
will comply with the provisions of and make all requisite filings with the Commission pursuant to said Rule 430B and notify the Sales
Agents promptly of all such filings. 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 Act or, in the case of any document to be incorporated by reference
therein, to be filed with the Commission as required pursuant to the Exchange Act, within the time period prescribed. If the Company
elects to rely upon Rule 462(b) under the Act, the Company shall file a registration statement under Rule 462(b) with the Commission
in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time
of filing either pay to the Commission the filing fee for such Rule 462(b) registration statement or give irrevocable instructions for
the payment of such fee pursuant to the Rules and Regulations. So long as delivery of the Prospectus relating to any Placement Shares
may be required to be delivered by the Sales Agents or any dealer under the Act (including in circumstances where such requirement may
be satisfied pursuant to Rule 172 of the Rules and Regulations or any similar rule), the Company will comply with all requirements imposed
upon it by the 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.
(c)
The Company will furnish to the Sales Agents, without charge, written and electronic copies of each of the Registration Statement and
of any pre- or post-effective amendment thereto, including financial statements and schedules, and all exhibits thereto, the Prospectus
(including all documents incorporated by reference therein), the Prospectus Supplement, each Issuer Free Writing Prospectus and all amendments
and supplements thereto that are filed with the Commission during any period that a Prospectus relating to the Placement Shares is required
to be delivered under the Act, in each case as soon as reasonably practicable and in such quantities as the Sales Agents may from time
to time reasonably request and, at the Sales Agents’ request, will also furnish copies of the Prospectus to each exchange or market
on which sales of the Placement Shares may be made; provided, however, that the Company shall not be required to furnish
any document (other than the Prospectus) to the Sales Agents to the extent such document is available on EDGAR.
(d)
The Company will use its reasonable best efforts to comply with all requirements imposed upon it by the Act and the Exchange Act as from
time to time in force, so far as necessary to permit the sales of, or dealings in, the Placement Shares as contemplated by the provisions
hereof and the Prospectus.
-18-
(e)
So long as delivery of the Prospectus relating to any Placement Shares may be required to be delivered by the Sales Agents or any dealer
under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 of the Rules and Regulations or
any similar rule), the Company will prepare and file with the Commission, promptly upon the Sales Agents’ request, any amendments
or supplements to the Registration Statement or the Prospectus that, in the Sales Agents’ reasonable opinion, may be necessary
or advisable in connection with the distribution of the Placement Shares by the Sales Agents (provided, however, that the
failure of the Sales Agents to make such request shall not relieve the Company of any obligation or liability hereunder, or affect the
Sales Agents’ right to rely on the representations and warranties made by the Company in this Agreement). The Company consents
to the use of the Prospectus Supplement, the Prospectus, each Issuer Free Writing Prospectus and any amendment or supplement thereto
by the Sales Agents and by all dealers to whom the Placement Shares may be sold, both in connection with the offering or sale of the
Placement Shares and for any period of time thereafter during which the Prospectus is required by law to be delivered in connection therewith.
If during such period of time any event shall occur that in the judgment of the Company or counsel to the Sales Agents should be set
forth in the Prospectus in order to make any statement therein, in the light of the circumstances under which it was made, not misleading,
or if it is necessary to supplement or amend the Prospectus to comply with law, the Company will notify the Sales Agents to suspend the
offering of Placement Shares during such period and the Company will forthwith prepare and duly file with the Commission an appropriate
supplement or amendment thereto, and will deliver to the Sales Agents, without charge, such number of copies of such supplement or amendment
to the Prospectus as the Sales Agents may reasonably request. If at any time following issuance of an Issuer Free Writing Prospectus
there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict
with the information contained in the Registration Statement, the Prospectus Supplement or the Prospectus or included or would include
an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances prevailing at that subsequent time, not misleading, the Company will promptly notify the Sales Agents
and, if requested by the Sales Agents, will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to
eliminate or correct such conflict, untrue statement or omission.
(f)
The Company will use its commercially reasonable efforts and cooperate with the Sales Agents in connection with the registration or qualification
of the Placement Shares for offer and sale under the state or foreign securities or Blue Sky laws of such jurisdictions as the Sales
Agents may request and to maintain such registration or qualification in effect for so long as required for the distribution of the Placement
Shares (but in no event for less than one year from the date of this Agreement); provided, that in no event shall the Company
be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject
it to general service of process in any jurisdiction where it is not now so subject. In each applicable jurisdiction, the Company will
file such statements and reports as may be required by the laws of such jurisdiction to continue such registration or qualification in
effect for so long as required for the distribution of the Placement Shares (but in no event for less than one year from the date of
this Agreement).
(g)
The Company will, so long as required under the Rules and Regulations, make available to its stockholders as soon as practicable after
the end of each fiscal year an annual report (including a balance sheet and statements of income, stockholders’ equity and cash
flow of the Company and its consolidated Subsidiaries, if any, certified by independent public accountants) and, as soon as practicable
after the end of each of the first three quarters of each fiscal year (beginning with the fiscal quarter ending after the Effective Date),
consolidated summary financial information of the Company and its Subsidiaries, if any, for such quarter in reasonable detail.
(h)
The Company will make generally available to holders of its securities as soon as practicable, but in no event later than 15 months after
the end of the Company’s current fiscal quarter, an earning statement covering a period of 12 months that satisfies the provisions
of Section 11(a) of the Act (including Rule 158 of the Rules and Regulations), provided that the Company will be deemed to have
furnished such statement to its security holders to the extent it is available on EDGAR.
-19-
(i)
Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company will pay
or reimburse if paid by the Sales Agents all costs and expenses incident to the performance of the obligations of the Company under this
Agreement and in connection with the transactions contemplated hereby, including but not limited to costs and expenses of or relating
to (i) the preparation, printing and filing of the Registration Statement and exhibits to it, the Prospectus Supplement, the Prospectus,
any Issuer Free Writing Prospectus and any amendment or supplement to any of the foregoing, including any fees required by the Commission
in connection therewith, (ii) the preparation and delivery of certificates, if any, representing the Placement Shares, including any
stock or other transfer taxes and any capital duties, stamp duties or other duties or taxes payable upon the sale, issuance or delivery
of the Placement Shares to the Sales Agents, (iii) furnishing (including costs of shipping and mailing) such copies of the Registration
Statement, the Prospectus Supplement, the Prospectus and any Issuer Free Writing Prospectus, and all amendments and supplements thereto,
as may be requested by the Sales Agents for use in connection with the offering and sale of the Placement Shares, (iv) the listing of
the Placement Shares on the Exchange, (v) determining the compliance of the offering of the Placement Shares with the rules of FINRA,
(vi) any filings required to be made in connection with clearance of the offering of the Placement Shares with FINRA (including the reasonable
and documented fees, disbursements and other charges of counsel for the Sales Agents in connection therewith), (vii) the registration
or qualification of the Placement Shares for offer and sale under state or foreign securities or Blue Sky laws and the preparation, printing
and distribution of any Blue Sky memoranda (including the reasonable and documented fees, disbursements and other charges of counsel
to the Sales Agents in connection therewith), (viii) fees, disbursements and other charges of counsel to the Company and of the Accountants,
(ix) the transfer agent for the Placement Shares and (x) all other reasonable and documented costs and expenses of the Sales Agents incident
to the performance of their obligations hereunder not otherwise specifically provided for herein, including the reasonable and documented
fees, disbursements and other charges of counsel to the Sales Agents (in addition to those set forth in clauses (v), (vi) and (vii));
provided, however, that in no event under this clause (x) shall the Company be required to pay or reimburse any Sales Agents’
costs and expenses in excess of $100,000 in connection with the establishment of the ATM Program and $15,000 for each periodic update
of the ATM Program.
(j)
The Company will not at any time, directly or indirectly, (i) take any action designed or that might reasonably be expected to cause
or result in, or that will constitute, stabilization of the price of the shares of Common Stock to facilitate the sale or resale of any
of the Placement Shares or (ii) sell, bid for, or purchase Common Stock in violation of Regulation M, or pay anyone any compensation
for soliciting purchases of the Placement Shares other than the Sales Agents.
(k)
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, required to register as an “investment company,” as such
term is defined in the Investment Company Act.
(l)
The Company will use the Net Proceeds in the manner set forth in the Prospectus under the caption “Use of Proceeds.”
-20-
(m)
The Company and the Subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting
controls in a manner designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of
financial statements for external purposes in accordance with generally accepted accounting principles and including those policies and
procedures that (i) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and
dispositions of the assets of the Company, (ii) provide reasonable assurance that transactions are recorded as necessary to permit the
preparation of the Company’s consolidated financial statements in accordance with generally accepted accounting principles, (iii)
receipts and expenditures of the Company are being made only in accordance with management’s and the Company’s directors’
authorization and (iv) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition
of the Company’s assets that could have a material effect on its financial statements. The Company and the Subsidiaries will maintain
such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act,
and the applicable regulations thereunder that are designed to ensure that information required to be disclosed by the Company in the
reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified
in the Commission’s rules and forms, including, without limitation, controls and procedures designed to ensure that information
required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated
to the Company’s management, including its principal executive officer and principal financial officer, or persons performing similar
functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to
the Company or the Subsidiaries is made known to them by others within those entities, particularly during the period in which such periodic
reports are being prepared.
(n)
Without the prior written consent of the Sales Agents, the Company will not, directly or indirectly, offer to sell, sell, contract to
sell, grant any option to sell or otherwise dispose of any shares of Common Stock (other than the Placement Shares offered pursuant to
this Agreement) or securities convertible into or exchangeable or exercisable for shares of Common Stock, warrants or any rights to purchase
or acquire, shares of Common Stock during the period beginning on the third Trading Day immediately prior to the date on which any Placement
Notice is delivered to Sales Agents hereunder and ending on the third Trading Day immediately following the final Settlement Date with
respect to Placement Shares sold pursuant to such Placement Notice (or, if the Placement Notice has been terminated or suspended prior
to the sale of all Placement Shares covered by a Placement Notice, the date of such suspension or termination); and will not directly
or indirectly in any other “at the market offering” or continuous equity transaction sell, offer to sell, contract to sell,
grant any option to sell or otherwise dispose of any Common Stock (other than the Placement Shares offered pursuant to this Agreement)
or securities convertible into or exchangeable or exercisable for shares of Common Stock, warrants or any rights to purchase or acquire,
shares of Common Stock prior to the later of the termination of this Agreement and the sixtieth day immediately following the final Settlement
Date with respect to Placement Shares sold pursuant to such Placement Notice; provided, however, that such restrictions
will not be required in connection with the Company’s issuance or sale of (i) shares of Common Stock, options to purchase shares
of Common Stock or shares of Common Stock issuable upon the exercise of options, pursuant to any employee or director stock option or
benefits plan, stock ownership plan or dividend reinvestment plan (but not shares Common Stock subject to a waiver to exceed plan limits
in its dividend reinvestment plan) of the Company whether now in effect or hereafter implemented, (ii) shares of Common Stock issuable
upon conversion of securities or the exercise of warrants, options or other rights in effect or outstanding, and disclosed in filings
by the Company available on EDGAR or otherwise in writing to the Sales Agents, (iii) shares of Common Stock or securities convertible
into or exchangeable for shares of Common Stock as consideration for mergers, acquisitions, other business combinations or strategic
alliances occurring after the date of this Agreement which are not issued for capital raising purposes, (iv) modification of any outstanding
equity awards, warrants or any rights to purchase or acquire shares of Common Stock, and (v) issuance of shares of Common Stock, or securities
convertible into, exercisable for or redeemable for shares of Common Stock, in a privately negotiated transaction to vendors, customers,
strategic partners or potential strategic partners as consideration for goods, services or strategic relationship arrangements, conducted
in a manner so as not to be integrated with the offering of the Placement Shares hereby and which are not issued for capital raising
purposes.
-21-
(o)
Prior to the date of the first Placement Notice, the Company will use its reasonable best efforts to cause the Placement Shares to be
listed on the Exchange.
(p)
The Company will, at any time during the pendency of a Placement Notice, advise the Sales Agents promptly after it shall have received
notice or obtained knowledge thereof, of any information or fact that would alter or affect in any material respect any opinion, certificate,
letter or other document required to be provided to the Sales Agents pursuant to this Agreement.
(q)
The Company will cooperate with any reasonable due diligence review conducted by the Sales Agents, their representatives and their 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, as the Sales Agents may reasonably
request.
(r)
The Company agrees that on or prior to such dates as the Act shall require, the Company will (i) file a prospectus supplement with the
Commission under the applicable paragraph of Rule 424(b), which prospectus supplement will set forth, within the relevant period, the
number or amount of Placement Shares sold through the Sales Agents, the Net Proceeds to the Company and the compensation payable by the
Company to the Sales Agents 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;
provided, that, unless a prospectus supplement containing such information is required to be filed under the Act, the requirement
of this Section 7(r) may be satisfied by Company’s inclusion in the Company’s Form 10-K or Form 10-Q, as applicable, of the
number or amount of Placement Shares sold through the Sales Agents, the Net Proceeds to the Company and the compensation payable by the
Company to the Sales Agents with respect to such Placement Shares during the relevant period.
(s)
Prior to the date on which the Company first delivers a Placement Notice and 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
by means of a post-effective amendment, sticker or supplement but not by means of incorporation of documents by reference into the Registration
Statement or the Prospectus relating to the Placement Shares;
(ii)
files an annual report on Form 10-K under the Exchange Act (including any Form 10-K/A containing amended financial information or a material
amendment to the previously filed Form 10-K);
(iii)
files a quarterly report on Form 10-Q under the Exchange Act; or
(iv)
files a current report on Form 8-K containing amended financial information (other than information “furnished” pursuant
to Items 2.02 or 7.01 of Form 8-K) 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 the Sales Agents (but in the case of clause (iv) above only if the Sales Agents reasonably determine that the information
contained in such Form 8-K is material at a time when a Placement Notice is pending or in effect and the Sales Agents request a certificate
within three Trading Days of the Company’s filing of such Form 8-K) with a certificate, in the form attached hereto, dated the
Representation Date, modified, as necessary, to relate to the Registration Statement and the Prospectus as amended or supplemented. The
requirement to provide a certificate under this Section 7(s) shall be waived for any Representation Date occurring at a time a Suspension
is in effect, which waiver shall continue until the earlier to occur of the date on which the Company delivers instructions for the sale
of Placement Shares hereunder (which for such calendar quarter shall be considered a Representation Date) and the next occurring Representation
Date. Notwithstanding the foregoing, if the Company subsequently decides to sell Placement Shares following a Representation Date when
a Suspension was in effect and did not provide the Sales Agents with a certificate under this Section 7(s), then before the Company delivers
the instructions for the sale of Placement Shares or the Sales Agents sell any Placement Shares pursuant to such instructions, the Company
shall provide the Sales Agents with a certificate in conformity with this Section 7(s) dated as of the date that the instructions for
the sale of Placement Shares are issued.
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(t)
Prior to the date of the first Placement Notice and within five Trading Days of each Representation Date with respect to which the Company
is obligated to deliver a certificate pursuant to Section 7(s) for which no waiver is applicable, the Company shall cause to be furnished
to the Sales Agents a written opinion and negative assurance letter of Troutman Pepper Locke LLP (“Company Counsel”), or
other counsel satisfactory to the Sales Agents, in form and substance satisfactory to Sales Agents and their counsel, modified, as necessary,
to relate to the Registration Statement and the Prospectus as then amended or supplemented; provided, however, that in
lieu of such opinion or negative assurance letter for subsequent Representation Dates, Company counsel may furnish the Sales Agents with
a letter (a “Reliance Letter”) to the effect that the Sales Agents may rely on a prior opinion or negative assurance letter
delivered under this Section 7(t) to the same extent as if it were dated the date of such letter (except that statements in such prior
opinion or negative assurance letter shall be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented
as of the date of the Reliance Letter).
(u)
Prior to the date of the first Placement Notice and within five Trading Days of each Representation Date with respect to which the Company
is obligated to deliver a certificate pursuant to Section 7(s) for which no waiver is applicable, the Company shall cause the Accountant
to furnish the Sales Agents letters (the “Comfort Letters”), dated the date the Comfort Letter is delivered, which shall
meet the requirements set forth in this Section 7(u); provided, that if requested by the Sales Agents, the Company shall cause
a Comfort Letter to be furnished to the Sales Agents within 10 Trading Days of the date of occurrence of any material transaction or
event, including the restatement of the Company’s financial statements. The Comfort Letter shall be in a form and substance satisfactory
to the Sales Agents, (i) confirming that they are an independent registered public accounting firm within the meaning of the Act and
the PCAOB, (ii) stating, as of such date, the conclusions and findings of such firm with respect to the financial information and other
matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings
(the first such letter, the “Initial Comfort Letter”) and (iii) updating the Initial Comfort Letter with any information
that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the
Registration Statement and the Prospectus, as amended and supplemented to the date of such letter.
(v)
Prior to the date of the first Placement Notice and within five Trading Days of each Representation Date with respect to which the Company
is obligated to deliver a certificate pursuant to Section 7(s) for which no waiver is applicable, the Company shall furnish to the Sales
Agents a certificate signed by the chief financial officer of the Company, in form and substance satisfactory to the Sales Agents and
their counsel.
(w)
If, immediately prior to the third anniversary of the initial effective date of the Registration Statement (the “Renewal Date”),
any of the Placement Shares remain unsold and this Agreement has not been terminated, the Company will, prior to the Renewal Date, file
a new shelf registration statement or, if applicable, an automatic shelf registration statement relating to the Common Stock that may
be offered and sold pursuant to this Agreement (which shall include a prospectus reflecting the number or amount of Placement Shares
that may be offered and sold pursuant to this Agreement), in a form satisfactory to the Sales Agents and their counsel, and, if such
registration statement is not an automatic shelf registration statement, will use its commercially reasonable efforts to cause such registration
statement to be declared effective within 180 days after the Renewal Date. The Company will take all other commercially reasonable actions
necessary or appropriate to permit the public offer and sale of the Placement Shares to continue as contemplated in the expired registration
statement and this Agreement. From and after the effective date thereof, references herein to the “Registration Statement”
shall include such new shelf registration statement or such new automatic shelf registration statement, as the case may be.
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(x)
The Company represents and agrees that, without the prior written consent of the Sales Agents, and each of the Sales Agents represents
and agrees that, without the prior written consent of the Company, they (including their agents and representatives, other than the Sales
Agents in their capacity as such) have not made and will not make, use, prepare, authorize, approve or refer to any written communication
that constitutes an offer to sell or solicitation of an offer to buy Placement Shares hereunder or otherwise 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 the use of which
has been consented to by the Company and the Sales Agents, as the case may be, is herein called a “Permitted Free Writing Prospectus.”
The Company represents and agrees that it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an
Issuer Free Writing Prospectus and that it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433
of the Rules and Regulations applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission, where
required, recordkeeping and legending. For the purposes of clarity, the parties hereto agree that all free writing prospectuses, if any,
listed in Schedule 4 hereto are Permitted Free Writing Prospectuses.
8.
Conditions of the Obligations of the Sales Agents.
The
obligations of the Sales Agents hereunder with respect to a Placement will be subject to the continuing accuracy and completeness of
the representations and warranties made by the Company herein, to the due performance by the Company of its obligations hereunder, to
the completion by the Sales Agents of a due diligence review satisfactory to the Sales Agents, and to the continuing satisfaction (or
waiver by the Sales Agents in their sole discretion) of the following additional conditions:
(a)
The Registration Statement shall be effective and shall be available for the (i) resale of all Placement Shares issued to the Sales Agents
and not yet sold by the Sales Agents and (ii) sale of all Placement Shares contemplated to be issued by any Placement Notice. All filings
required by Rule 424 shall have been made, including timely filing of the Prospectus Supplement pursuant to Rule 424(b).
(b)
(i) No stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus Supplement,
the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings for that purpose shall be pending or threatened
by the Commission; (ii) no order suspending the qualification or registration of the Placement Shares under the securities or Blue Sky
laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or threatened or contemplated
by any applicable governmental authorities; (iii) the Company shall not have received 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; (iv) there
shall not have occurred or be continuing any event that makes any material statement made in the Registration Statement or the Prospectus
or any material Incorporated Document untrue in any material respect or that requires the making of any changes in the Registration Statement,
the Prospectus or Incorporated Documents so that, in the case of the Registration Statement, it will not contain any untrue statement
of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading
and, in the case of the Prospectus, so that it will not contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were
made, not misleading.
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(c)
The Sales Agents shall not have advised the Company that the Registration Statement or the Prospectus, or any amendment or supplement
thereto, contains an untrue statement of fact that in the Sales Agents’ opinion is material, or omits to state a fact that in the
Sales Agents’ opinion is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(d)
Except as contemplated in the Prospectus, or disclosed in the Company’s reports filed with the Commission, (i) there shall not
have been (A) a Material Adverse Change or any material adverse change, on a consolidated basis, in the authorized capital stock of the
Company, (B) any Material Adverse Effect or the occurrence of any development that the Company reasonably expects could result in a Material
Adverse Effect or (C) any downgrading in or withdrawal of the rating assigned to any of the Company’s securities (other than asset-backed
securities), if any, by any rating organization or a public announcement by any rating organization that it has under surveillance or
review its rating of any of the Company’s securities (other than asset-backed securities), if any, and (ii) neither the Company
nor any of its Subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion,
flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental
action, order or decree, if in the judgment of the Sales Agents (without relieving the Company of any obligation or liability it may
otherwise have), any such development makes it impracticable or inadvisable to proceed with the offering of the Placement Shares on the
terms and in the manner contemplated in the Prospectus.
(e)
Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no
litigation or other proceeding instituted against the Company, any of its Subsidiaries or any of its or their officers or directors in
their capacities as such, before or by any federal, state or local court, commission, regulatory body, administrative agency or other
governmental body, domestic or foreign, in which litigation or proceeding an unfavorable ruling, decision or finding could, in the judgment
of the Sales Agents, have a Material Adverse Effect or if, in the judgment of the Sales Agents, any such development makes it impracticable
or inadvisable to proceed with the offering of the Placement Shares on the terms and in the manner contemplated in the Prospectus.
(f)
Each of the representations and warranties of the Company contained herein shall be true and correct in all respects (in the case of
any representation and warranty containing a materiality or Material Adverse Effect qualification) or in all material respects (in the
case of any other representation and warranty), and all covenants and agreements contained herein to be performed on the part of the
Company and all conditions contained herein to be fulfilled or complied with by the Company shall have been duly performed, fulfilled
or complied with.
(g)
The Sales Agents shall have received the opinion and negative assurance letter from Company Counsel required to be delivered pursuant
to Section 7(t) on or before the date on which delivery of such opinion and negative assurance letter is required pursuant to Section
7(t).
(h)
The Sales Agents shall have received an opinion and negative assurance letter from Covington & Burling LLP, counsel to the Sales
Agents, on or before the date on which delivery of the opinion and negative assurance letter of Company Counsel is required pursuant
to Section 7(t), which opinion and negative assurance letter shall be reasonably satisfactory in all respects to the Sales Agents, and
the Company shall have furnished to such counsel such documents as they may request to enable counsel to the Sales Agents to pass upon
such matters.
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(i)
The Sales Agents shall have received the Comfort Letter required to be delivered pursuant to Section 7(u) on or before the date on which
such delivery of such Comfort Letter is required pursuant to Section 7(u).
(j)
The Sales Agents shall have received the certificate required to be delivered pursuant to Section 7(s) on or before the date on which
delivery of such certificate is required pursuant to Section 7(s).
(k)
The Sales Agents shall have received the certificate required to be delivered pursuant to Section 7(v) on or before the date on which
delivery of such certificate is required pursuant to Section 7(v).
(l)
Prior to the date of the first Placement Notice and at subsequent Representation Dates as may be requested by the Sales Agents, the Company
shall deliver to the Sales Agents a certificate of the Secretary of the Company and attested to by an executive officer of the Company,
dated as of such date and in form and substance satisfactory to the Sales Agents and its counsel, certifying as to (i) the Certificate
of Incorporation of the Company, (ii) the Bylaws of the Company, (iii) the resolutions of the board of directors of the Company or a
duly authorized committee thereof authorizing the execution, delivery and performance of this Agreement and the issuance of the Placement
Shares and (iv) the incumbency of the officers duly authorized to execute this Agreement and the other documents contemplated by this
Agreement.
(m)
The Placement Shares shall be qualified for sale in such jurisdictions as the Sales Agents may reasonably request and each such qualification
shall be in effect and not subject to any stop order or other proceeding.
(n)
Either (i) the Placement Shares shall have been approved for listing on the Exchange, subject only to notice of issuance, or (ii) the
Company shall have filed a notification for listing of the Placement Shares on the Exchange at, or prior to, the issuance of the first
Placement Notice and the Exchange shall not have provided any objections thereto. 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.
(o)
All filings with the Commission required by Rule 424(b) or Rule 433 under the 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(b) (without reliance on
Rule 424(b)(8)) or Rule 433, as applicable.
(p)
If applicable, FINRA shall have raised no objection to the terms of the offering contemplated hereby and the amount of compensation allowable
or payable to the Sales Agents as described in the Prospectus.
(q)
On each date on which the Company is required to deliver a certificate pursuant to Section 7(s), the Company shall have furnished to
the Sales Agents such further information, opinions, certificates, letters and other documents, in addition to those specifically mentioned
herein, as the Sales Agents may have reasonably requested. All such information, opinions, certificates, letters and other documents
shall have been in compliance with the provisions hereof.
(r)
There shall not have occurred any event that would permit the Sales Agents to terminate this Agreement pursuant to Section 11(a).
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9.
Indemnification and Contribution.
(a)
The Company will indemnify and hold harmless each of the Sales Agents, their respective partners, members, directors, officers, employees,
agents and affiliates and each person, if any, who controls each of the Sales Agents within the meaning of Section 15 of the Act or Section
20 of the Exchange Act, from and against any and all losses, claims, liabilities, expenses and damages (including any and all 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), joint or several, to which they, or any of them, may become subject under the Act, the Exchange Act or other
federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, liabilities, expenses or damages
arise out of or are based on any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement,
Prospectus Supplement, the Prospectus or any amendment or supplement thereto or any Issuer Free Writing Prospectus or any “issuer
information” filed or required to be filed pursuant to Rule 433(d) of the Rules and Regulations, or the omission or alleged omission
to state in such document a material fact required to be stated in it or necessary to make the statements in it not misleading in the
light of the circumstances in which they were made, or arise out of or are based in whole or in part on any inaccuracy in the representations
and warranties of the Company contained herein or any failure of the Company to perform its obligations hereunder or under law in connection
with the transactions contemplated hereby; provided, however, that the Company will not be liable to the extent that such
loss, claim, liability, expense or damage arises from the sale of the Placement Shares to any person by the Sales Agents and is based
on the Sales Agents’ Information. This indemnity agreement will be in addition to any liability that the Company might otherwise
have.
(b)
Each Sales Agent, severally and not jointly, will indemnify and hold harmless the Company, each director of the Company, each officer
of the Company who signs the Registration Statement, and each person, if any, who controls the Company within the meaning of Section
15 of the Act or Section 20 of the Exchange Act, to the same extent as the foregoing indemnity from the Company to the Sales Agents,
as set forth in Section 9(a), but only insofar as losses, claims, liabilities, expenses or damages arise out of or are based on any untrue
statement or omission or alleged untrue statement or omission made in reliance on and in conformity with the Sales Agents’ Information
relating to such Sales Agent. This indemnity will be in addition to any liability that the Sales Agents might otherwise have.
(c)
Any party that proposes to assert the right to be indemnified under this Section 9 shall, 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
9, notify each such indemnifying party in writing of the commencement of such action, enclosing with such notice a copy of all papers
served, but the omission so to notify such indemnifying party will not relieve it from any liability that it may have to any indemnified
party under the foregoing provisions of this Section 9 unless, and only to the extent that, such omission results in the loss of substantive
rights or defenses by the indemnifying party. If any such action is brought against any indemnified party and it notifies the indemnifying
party of its commencement, the indemnifying party will be entitled to participate in and, to the extent that it elects by delivering
written notice to the indemnified party promptly after receiving notice of the commencement of the action from the indemnified party,
jointly with any other indemnifying party similarly notified, to assume the defense of the action, with counsel reasonably satisfactory
to the indemnified party. 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 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 (i) the employment of counsel by the indemnified party has been authorized in writing by the indemnifying
party, (ii) 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, (iii) 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 (iv) the indemnifying party has not in fact employed counsel reasonably satisfactory to the indemnified party 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 (plus local counsel) admitted to practice
in such jurisdiction at any one time for all such indemnified party or parties. All such reasonable fees, disbursements and other charges
will be reimbursed by the indemnifying party promptly as they are incurred. No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement of any pending or threatened action in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such indemnified party unless such settlement (A) includes an unconditional
release of such indemnified party, in form and substance reasonably satisfactory to the indemnified party, from all liability on any
claims that are the subject matter of such action and (B) does not include a statement as to, or an admission of, fault, culpability
or a failure to act by or on behalf of an indemnified party. An indemnifying party will not be liable for any settlement of any action
or claim effected without its written consent (which consent will not be unreasonably withheld or delayed).
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(d)
If an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for reasonable fees and expenses
of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by this Section 9 effected
without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with
such request prior to the date of such settlement.
(e)
If the indemnification provided for in this Section 9 is applicable in accordance with its terms but for any reason is held to be unavailable
to or insufficient to hold harmless an indemnified party under this Section 9 in respect of any losses, claims, liabilities, expenses
and damages referred to therein, then each applicable indemnifying party, in lieu of indemnifying such indemnified party, shall contribute
to the amount paid or payable (including any investigative, legal and other expenses reasonably incurred in connection with, and any
amount paid in settlement of, any action, suit or proceeding or any claim asserted, but after deducting any contribution received by
the Company from persons other than the applicable Sales Agent, such as persons who control the Company within the meaning of the Act,
officers of the Company who signed the Registration Statement and directors of the Company, who also may be liable for contribution)
by such indemnified party as a result of such losses, claims, liabilities, expenses and damages in such proportion as shall be appropriate
to reflect the relative benefits received by the Company, on the one hand, and the Sales Agents, on the other hand. The relative benefits
received by the Company, on the one hand, and the Sales Agents, on the other hand, shall be deemed to be in the same proportion as the
total Net Proceeds from the sale of the Placement Shares (before deducting expenses) received by the Company bear to the total compensation
received by the Sales Agents from the sale of the 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 the applicable Sales Agent, on the other hand, with respect to the statements or omissions 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 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 the applicable Sales Agent, the
intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Company and each Sales Agent agree that it would not be just and equitable if contributions pursuant to this Section 9(e) 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 9(e) shall be deemed to include, for purposes of this Section 9(e), any
legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 9(e), no Sales Agent shall be required to contribute any amount in excess of the
commissions received by it and no person found guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
will be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section
9(e), any person who controls a party to this Agreement within the meaning of the Act will have the same rights to contribution as that
party, and each officer 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 any such party in respect of which a claim for contribution may be made under this Section 9(e), will notify any such
party or parties from whom contribution may be sought, but the omission so to notify will not relieve the party or parties from whom
contribution may be sought from any other obligation it or they may have under this Section 9(e). 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 9 hereof.
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(f)
The indemnity and contribution agreements contained in this Section 9 and the representations and warranties of the Company contained
in this Agreement shall remain operative and in full force and effect regardless of (i) any investigation made by or on behalf of any
Sales Agent, (ii) acceptance of any of the Placement Shares and payment therefor or (iii) any termination of this Agreement.
10.
Reimbursement of Certain Expenses.
In
addition to its other obligations under Section 9(a) of this Agreement, the Company hereby agrees to reimburse the Sales Agents on a
quarterly basis for all reasonable legal and other expenses incurred in connection with investigating or defending any claim, action,
investigation, inquiry or other proceeding arising out of or based upon, in whole or in part, any statement or omission or alleged statement
or omission or any inaccuracy in the representations and warranties of the Company contained herein or failure of the Company to perform
its obligations hereunder or under law, all as described in Section 9(a), notwithstanding the absence of a judicial determination as
to the propriety and enforceability of the obligations under this Section 10 and the possibility that such payment might later be held
to be improper; provided, however, that, to the extent any such payment is ultimately held to be improper, the persons
receiving such payments shall promptly refund them.
11.
Termination.
(a)
The obligations of each Sales Agent under this Agreement may be terminated and each Sales Agent may terminate this Agreement at any time,
with respect to its rights and obligations under this Agreement, by notice to the Company from such Sales Agent, without liability on
the part of such Sales Agent to the Company if, in the sole judgment of such Sales Agent, (i) there has been, since the time of execution
of this Agreement or since the date as of which information is given in the Prospectus, that has not been cured by the Company within
five Business Days after notice from the Sales Agents, any Material Adverse Effect, any Material Adverse Change or any development that
could reasonably be expected to result in a Material Adverse Effect or a Material Adverse Change, (ii) trading in any of the equity securities
of the Company shall have been suspended or limited by the Commission or by the Exchange or trading of any securities of the Company
on any exchange or in the over-the-counter market shall have occurred and be continuing, (iii) trading in securities generally on the
Exchange shall have been suspended or limited or minimum or maximum prices shall have been generally established on the Exchange, or
material governmental restrictions shall have been imposed upon trading in securities generally by the Exchange, by order of the Commission
or any court or other governmental authority or by the Exchange, (iv) a banking moratorium shall have been declared by either federal
or New York State authorities or any material disruption of the securities settlement or clearance services in the United States shall
have occurred, or (v) any material adverse change in the financial or securities markets in the United States or elsewhere or in political,
financial or economic conditions in the United States or elsewhere, any outbreak or material escalation of hostilities, a declaration
of a national emergency or war, or other calamity or crisis, either within or outside the United States, shall have occurred, the effect
of which is such as to make it, in the sole judgment of such Sales Agent, impracticable or inadvisable to sell the Placement Shares or
to enforce contracts for the sale of the Placement Shares. If this Agreement is terminated pursuant to this Section 11(a), no party shall
have any liability to any other party, except that Sections 7(i), 9, 10 and 13 hereof shall remain in full force and effect notwithstanding
such termination. If any Sales Agent elects to terminate this Agreement as provided in this Section 11(a), such Sales Agent shall provide
the required notice as specified in Section 13. For the avoidance of doubt, the termination by one Sales Agent of its rights and obligations
under this Agreement pursuant to this Section 11(a) shall not affect the rights and obligations of the other Sales Agents under this
Agreement.
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(b)
The Company shall have the right, by giving 10 Business Days’ prior notice as hereinafter specified to terminate this Agreement
with respect to a Sales Agent’s rights and obligations under 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 Sections
7(i), 9, 10 and 13 hereof shall remain in full force and effect notwithstanding such termination. For the avoidance of doubt, the termination
by the Company of this Agreement with respect to one Sales Agent pursuant to this Section 11(b) shall not affect the rights and obligations
of the other Sales Agents under this Agreement.
(c)
Each Sales Agent shall have the right, by giving 10 days’ prior notice as hereinafter specified to terminate this Agreement with
respect to itself 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 Sections 7(i), 9, 10 and 13 hereof shall remain in full force and effect
notwithstanding such termination. For the avoidance of doubt, the termination by one Sales
Agent of its rights and obligations under this Agreement pursuant to this Section 11(c) shall not affect the rights and obligations
of the other Sales Agents under this Agreement.
(d)
This Agreement shall remain in full force and effect unless terminated pursuant to Sections 11(a), (b), or (c) above or otherwise by
mutual agreement of the parties; provided, however, that any such termination by mutual agreement shall in all cases be
deemed to provide that Sections 7(i), 9, 10 and 13 hereof shall remain in full force and effect. To the extent this Agreement is terminated
by one Sales Agent or by the Company with respect to one Sales Agent pursuant to Section 11(a), 11(b) or 11(c) above, this Agreement
shall terminate only with respect to such Sales Agent and shall remain in full force and effect with respect to the Company and the other
Sales Agents, unless and until terminated with respect to all parties.
(e)
Any termination of this Agreement shall be effective on the date specified in such notice of termination; provided, however,
that such termination shall not be effective until the close of business on the date of receipt of such notice by the applicable Sales
Agent 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.
-30-
12.
No Fiduciary Relationship.
Notwithstanding
any preexisting relationship, advisory or otherwise, between the parties or any oral representations or assurances previously or subsequently
made by any Sales Agent, the Company acknowledges and agrees that (a) the offering and sale of the Placement Shares pursuant to this
Agreement is an arm’s-length commercial transaction between the Company and the Sales Agents, (b) each Sales Agent is acting solely
as agent in connection with the public offering of the Placement Shares and in connection with each transaction contemplated by this
Agreement and the process leading to such transactions, and no Sales Agent has assumed an advisory or fiduciary responsibility in favor
of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Sales Agent
has advised or is currently advising the Company on other matters) or any other obligation to the Company except the obligations expressly
set forth in this Agreement, (c) each Sales Agent and its affiliates may be engaged in a broad range of transactions that involve interests
that differ from those of the Company and such Sales Agent has no obligation to disclose or account to the Company for any of such differing
interests, and (d) the Company has consulted its own legal, tax, accounting and financial advisors to the extent it deemed appropriate,
is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated
by this Agreement and has not relied upon the Sales Agents or legal counsel for the Sales Agents for any legal, tax, accounting and financial
advice in connection with the offering and sale of the Placement Shares. The Company hereby waives any claim, and agrees that it will
not claim, that any Sales Agent or its affiliates have rendered advisory services of any nature or respect, or owe a fiduciary or similar
duty to the Company, in connection with the sale of Placement Shares under this Agreement or the process leading thereto. The Company
agrees that no Sales Agent or any of its affiliates shall 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.
13.
Miscellaneous.
(a)
Notice given pursuant to any of the provisions of this Agreement shall be in writing and, unless otherwise specified, shall be mailed
or delivered (a) if to the Company, at the office of the Company, Velo3D, Inc., 2710 Lakeview Court, Fremont, California 94538, Attention:
Nancy Krystal, Vice President and General Counsel, email: [***], with a copy (which shall not constitute notice) to Troutman Pepper Locke
LLP, 111 Huntington Ave., 9th Floor, Boston, Massachusetts 02199, Attention: Thomas M. Rose and Alexander T. Yarbrough, email:
thomas.rose@troutman.com and alexander.yarbrough@troutman.com, or (b) if to the Sales Agents at the offices of Needham & Company,
LLC, 250 Park Avenue, New York, NY 10177, Attention: Matthew Castrovince, email: [***], to the offices of Cantor Fitzgerald, L.P., 110
East 59th Street, New York, NY 10022, Attention: Controlled Equity Offering, email: [***], with a copy to [***], to the offices
of Craig-Hallum Capital Group, LLC, 323 N Washington Ave., Suite 300, Minneapolis, MN 55401, Attention: Capital Markets, email: [***],
with a copy (which shall not constitute notice) to Covington & Burling LLP, 30 Hudson Yards, New York, New York 10001, Attention:
Matthew T. Gehl and Julie M. Plyler, email: mgehl@cov.com and jplyler@cov.com. Each party to this Agreement may change such address for
notices by sending to the parties to this Agreement written notice of a new address for such purpose. Each such notice or other communication
shall be deemed given (i) when delivered personally 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, (iii) on the Business Day actually received
if deposited in the U.S. mail (certified or registered mail, return receipt requested, postage prepaid) and (iv) by Electronic Notice
as set forth in the following paragraph. For purposes of this Agreement, “Business Day” shall mean any day on which the Exchange
and commercial banks in New York City are open for business.
-31-
An
electronic communication (“Electronic Notice”) shall be deemed written notice for purposes of this Section 13(a) if sent
to the electronic mail address specified by the receiving party in this Section 13(a). Electronic Notice shall be deemed received at
the time the party sending Electronic Notice receives actual acknowledgment of receipt from the person to whom notice is sent, other
than automatic reply. 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 10 days of receipt of the written request
for Nonelectronic Notice.
(b)
This Agreement has been and is made solely for the benefit of the Sales Agents, the Company, and the persons referred to in Section 9,
and their respective successors and permitted assigns, and no other person shall acquire or have any right under or by virtue of this
Agreement. The term “successors and assigns” as used in this Agreement shall not include a purchaser, as such purchaser,
of Placement Shares. No party may assign its rights or obligations under this Agreement without the prior written consent of the other
parties; provided, however, that each Sales Agent may assign its rights and obligations hereunder to an affiliate thereof without obtaining
the Company’s consent.
(c)
The parties acknowledge and agree that all share-related numbers contained in this Agreement shall be adjusted to take into account any
stock split, stock dividend or similar event effected with respect to the Common Stock.
(d)
This Agreement (including all schedules and exhibits attached hereto and Placement Notices issued pursuant hereto) constitutes the entire
agreement and supersedes all other prior and contemporaneous agreements and undertakings, both written and oral, among the parties hereto
with regard to the subject matter hereof. Neither this Agreement nor any term hereof may be amended except pursuant to a written instrument
executed by the Company and the Sales Agents.
(e)
This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and
to be performed entirely within such State and without regard to principles of conflicts of laws. Unless stated otherwise, specified
times of day refer to New York City time.
(f)
No implied waiver by a party shall arise in the absence of a waiver in writing signed by such party. No failure or delay in exercising
any right, power, or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude
any other or further exercise thereof or the exercise of any right, power, or privilege hereunder.
(g)
This Agreement may be signed in two or more counterparts with the same effect as if the signatures thereto and hereto were upon the same
instrument. Delivery of an executed Agreement by one party to the other may be made by facsimile or electronic transmission (including
any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures
and Records Act or other applicable law) and any counterpart so delivered shall be deemed to have been duly and validly delivered and
be valid and effective for all purposes.
(h)
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.
-32-
(i)
THE COMPANY AND EACH OF THE SALES AGENTS HEREBY WAIVES ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED UPON,
RELATING TO OR ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(j)
Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in New York City, Borough
of Manhattan, for the adjudication of any dispute hereunder or in connection with any of the transactions 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 (certified or registered mail, return receipt requested) to such party at the address
in effect for notices under Section 13(a) of this Agreement and agrees that such service shall constitute good and sufficient notice
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.
14.
Recognition of the U.S. Special Resolution Regimes.
(a)
(a) In the event that any Sales Agent that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime,
the transfer from such Sales Agent of this Agreement, and any interest and obligation in or under this Agreement, will be effective to
the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest
and obligation, were governed by the laws of the United States or a state of the United States.
(b)
(b) In the event that any Sales Agent that is a Covered Entity or a BHC Act Affiliate of such Sales Agent becomes subject to a proceeding
under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Sales Agent are permitted
to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement
were governed by the laws of the United States or a state of the United States.
As
used in this Section 14:
“BHC
Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance
with, 12 U.S.C. § 1841(k).
“Covered
Entity” means any of the following:
(i)
a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii)
a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii)
a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
-33-
“Default
Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81,
47.2 or 382.1, as applicable.
“U.S.
Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder
and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
(c)
For purposes of this Agreement:
(i)
The section, exhibit and schedule headings herein are for convenience only and shall not affect the construction hereof.
(ii)
Words defined in the singular shall have a comparable meaning when used in the plural, and vice versa.
(iii)
The words “hereof,” “hereto,” “herein” and “hereunder” and words of similar import, when
used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement.
(iv)
Wherever the word “include,” “includes” or “including” is used in this Agreement, it shall be deemed
to be followed by the words “without limitation.”
(v)
References herein to any gender shall include each other gender.
(vi)
References herein to any law, statute, ordinance, code, regulation, rule or other requirement of any governmental authority shall be
deemed to refer to such law, statute, ordinance, code, regulation, rule or other requirement of any governmental authority as amended,
reenacted, supplemented or superseded in whole or in part and in effect from time to time and also to all rules and regulations promulgated
thereunder.
(vii)
All references in this Agreement to financial statements and schedules and other information that is “contained,” “included”
or “stated” in the Registration Statement or the Prospectus (and all other references of like import) shall be deemed to
mean and include all such financial statements and schedules and other information that is incorporated by reference in the Registration
Statement or the Prospectus, as the case may be.
(viii)
All references in this Agreement to the Registration Statement, the Prospectus or any amendment or supplement to any of the foregoing
shall be deemed to include the copy filed with the Commission pursuant to EDGAR; all references in this Agreement to any Issuer Free
Writing Prospectus (other than any Issuer Free Writing Prospectuses that, pursuant to Rule 433, are not required to be filed with the
Commission) shall be deemed to include the copy thereof filed with the Commission pursuant to EDGAR; and all references in this Agreement
to “supplements” to the Prospectus shall include, without limitation, any supplements, “wrappers” or similar
materials prepared in connection with any offering, sale or private placement of any Placement Shares by the Sales Agents outside of
the United States.
[Signature
pages follow]
-34-
Please
confirm that the foregoing correctly sets forth the agreement among the Company and the Sales Agents.
Very truly yours,
Velo3D, Inc.
By:
/s/ Arun Jeldi
Name:
Arun Jeldi
Title:
Chief Executive Officer
[Signature
Page to Sales Agreement]
Confirmed
as of the date first
above
mentioned:
Needham & Company,
LLC
By:
/s/ Mattew Castrovince
Name:
Matthew Castrovince
Title:
Managing Director
[Signature
Page to Sales Agreement]
Cantor Fitzgerald
& Co.
By:
/s/ Matthew Crawford
Name:
Matthew Crawford
Title:
Managing Director
[Signature
Page to Sales Agreement]
Craig-Hallum Capital
Group, LLC
By:
/s/ Rick Hartfiel
Name:
Rick Hartfiel
Title:
Head of Investment Banking
[Signature
Page to Sales Agreement]
SCHEDULE
1
Form
of Placement Notice
From:
Velo3D, Inc.
To:
[Designated Agent]
[Address]
Attention: [_____]
Subject:
Placement Notice
Date:
[●], 202[●]
Ladies
and Gentlemen:
Pursuant
to the terms and subject to the conditions contained in the Sales Agreement by and among Velo3D, Inc., a Delaware corporation (the
“Company”), Needham & Company, LLC (“Needham”), Cantor Fitzgerald & Co. (“Cantor”) and
Craig-Hallum Capital Group, LLC (together with Needham and Cantor, the “Sales Agents”), dated May 15, 2026, the Company
hereby requests that the Sales Agents sell up to [___] shares of the Company’s common stock, par value $0.00001 per share (the
“Shares”), at a minimum price of $[___] per share, during the time period beginning [month, day, time] and ending
[month, day, time][until all Shares that are the subject of this Placement Notice are sold]. [The maximum number of Shares to be
sold in any single Trading Day shall be [__]].
SCHEDULE
2
Compensation
The
Company shall pay to the applicable Designated Agent in cash, upon each sale of Placement Shares pursuant to the Sales Agreement of which
this Schedule 2 forms a part, an amount equal to 3% of the aggregate gross proceeds from each sale of Placement Shares.
Capitalized
terms used but not defined herein shall have the meanings ascribed to them in the Sales Agreement.
SCHEDULE
3
Notice
Parties
The
Company
Arun
Jeldi – [***]
Jim
Suva – [***]
Nancy
Krystal – [***]
The
Sales Agents
Needham
Matthew
Castrovince – [***]
Laura
Black – [***]
Brandon
Lebow – [***]
Cantor
Cantor
Fitzgerald Controled Equity Offerings – [***]
Legal
– [***]
Craig-Hallum
Capital
Markets – [***]
SCHEDULE
4
Permitted
Free Writing Prospectus
[None.]
Form
of Representation Date Certificate
Dated:
[__], 202[__]
Each
of [_____], the duly qualified and elected Chief Executive Officer of Velo3D, Inc., a Delaware corporation (the
“Company”), and [____], the duly qualified and elected Chief Financial Officer of the Company, does hereby certify in
the undersigned’s respective capacity and on behalf of the Company, pursuant to Section 7(s) of the Sales Agreement, dated May
15, 2026 (the “Sales Agreement”), by and among the Company, Needham & Company, LLC, Cantor Fitzgerald & Co. and
Craig-Hallum Capital Group, LLC, that, after due inquiry, to the best of the knowledge of the undersigned:
(a)
Each of the representations and warranties of the Company contained in the Sales Agreement are true and correct in all respects (in the
case of any representation and warranty containing a materiality or Material Adverse Effect qualification) or in all material respects
(in the case of any other representation and warranty), in each case as of the date hereof with the same force and effect as if expressly
made on and as of the date hereof.
(b)
Each of the covenants required to be performed by the Company under the Sales Agreement on or prior to the date hereof has been duly,
timely and fully performed and each condition required to be satisfied or fulfilled under the Sales Agreement on or prior to the date
hereof has been duly, timely and fully satisfied or fulfilled.
(c)
The undersigned has carefully examined the Registration Statement and the Prospectus (including any Incorporated Documents) and (i) as
of the date hereof, the Registration Statement complies in all material respects with the requirements of the Act and does not contain
any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make
the statements therein not misleading, (ii) as of the date hereof, the Prospectus complies in all material respects with the requirements
of the Act 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 light of the circumstances under which they were made, not misleading and (iii)
since the Effective Date and as of the date hereof, no event has occurred as a result of which it is necessary to amend or supplement
the Registration Statement or the Prospectus in order to make the statements therein not untrue or misleading or for clauses (i) and
(ii) above, to be true and correct.
(d)
There has been no material adverse change, or any development that could reasonably be expected to result in a material adverse change,
in the general affairs, business, management, condition (financial or otherwise), earnings, results of operations, properties, operations,
assets, liabilities or prospects of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the
ordinary course of business, since the date as of which information is given in the Prospectus, as amended or supplemented to the date
hereof.
(e)
The Company does not possess any material non-public information.
(f)
The maximum amount of Placement Shares that may be sold pursuant to the Sales Agreement has been duly authorized by the Company’s
board of directors or a duly authorized committee thereof pursuant to a resolution or unanimous written consent in accordance with the
Company’s organizational documents and applicable law.
Capitalized
terms used but not defined herein shall have the meanings ascribed to them in the Sales Agreement.
[Signature
pages follow]
IN
WITNESS WHEREOF, each of the undersigned, in such individual’s respective capacity as Chief Executive Officer or Chief Financial
Officer of the Company, has executed this Officers’ Certificate on behalf of the Company.
By:
Name:
Title:
Chief Executive Officer
By:
Name:
Title:
Chief Financial Officer
[Signature
Page to Representation Date Certificate]
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May 15, 2026
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Entity Central Index Key
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Entity Tax Identification Number
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Entity Incorporation, State or Country Code
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Entity Address, Address Line One
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Boolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 14d
-Subsection 2b
+ Details
Name:
dei_PreCommencementTenderOffer
Namespace Prefix:
dei_
Data Type:
xbrli:booleanItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Title of a 12(b) registered security.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b
+ Details
Name:
dei_Security12bTitle
Namespace Prefix:
dei_
Data Type:
dei:securityTitleItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Name of the Exchange on which a security is registered.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection d1-1
+ Details
Name:
dei_SecurityExchangeName
Namespace Prefix:
dei_
Data Type:
dei:edgarExchangeCodeItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Boolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as soliciting material pursuant to Rule 14a-12 under the Exchange Act.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 14a
-Subsection 12
+ Details
Name:
dei_SolicitingMaterial
Namespace Prefix:
dei_
Data Type:
xbrli:booleanItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Trading symbol of an instrument as listed on an exchange.
+ References
No definition available.
+ Details
Name:
dei_TradingSymbol
Namespace Prefix:
dei_
Data Type:
dei:tradingSymbolItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Boolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as written communications pursuant to Rule 425 under the Securities Act.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Securities Act
-Number 230
-Section 425
+ Details
Name:
dei_WrittenCommunications
Namespace Prefix:
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Data Type:
xbrli:booleanItemType
Balance Type:
na
Period Type:
duration