Exhibit
1.1
Soluna
Holdings, Inc.
9.0%
Series A Cumulative Perpetual Preferred Stock
(par
value $0.001 per share)
At-The-Market
Issuance Sales Agreement
June
9, 2022
Univest
Securities, LLC
00
Xxxxxxxxxxx Xxxxx, Xxxxx 0000
Xxx
Xxxx, XX 00000
Ladies
and Gentlemen:
Soluna
Holdings, Inc., a Nevada corporation (the “Company”), confirms its agreement (this “Agreement”)
with Univest Securities, LLC (“Univest”) as follows:
1. Issuance
and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject
to the conditions set forth herein, it may issue and sell through Univest, acting as sales agent, shares (the “Placement
Shares”) of the Company’s 9.0% Series A Cumulative Perpetual Preferred Stock, par value $0.001 per share (the
“Series A Preferred Stock”), up to an aggregate sale price of $10,000,000; provided however, that
in no event shall the Company issue or sell through Univest such number of Placement Shares that (a) would cause the Company to
not satisfy the eligibility requirements for use of Form S-3 (including Instruction I.B.6. thereof, if applicable), (b) exceeds
the number of shares of Series A Preferred Stock registered on the effective Registration Statement (as defined below) pursuant
to which the offering is being made or (c) exceeds the number of authorized and designated but unissued shares of the Company’s
Series A Preferred Stock (the lesser of (a), (b) and (c), the “Maximum Amount”). Notwithstanding anything to
the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the
amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that Univest
shall have no obligation in connection with such compliance if acting in accordance with any Placement Notice (as defined below)
that has not been suspended or terminated by the Company. The issuance and sale of the Placement Shares through Univest will be
effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities
and Exchange Commission (the “Commission”), although nothing in this Agreement shall be construed as requiring
the Company to use the Registration Statement to issue any Placement Shares. The Company agrees that whenever it determines to
sell Placement Shares directly to Univest as principal it will enter into a separate written agreement containing the terms and
conditions of each sale.
The
Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”),
and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration
statement on Form S-3 (File No. 333-261427), including a base prospectus, relating to certain securities, including
the Placement Shares 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 thereunder. Such base prospectus in the form in which it appears in such registration
statement is hereinafter called the “Base Prospectus.” The Company has prepared and will file with the Commission
a prospectus supplement to the Base Prospectus, which specifically relates to the Placement Shares (the “Prospectus Supplement”).
The Company will furnish to Univest, for use by Univest, copies of the Base Prospectus, as supplemented by the Prospectus Supplement.
Except where the context otherwise requires, such registration statement, including all amendments thereto and all documents filed
as part thereof 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) under the Securities Act Regulations or deemed to be a part of
such registration statement pursuant to Rule 430B of the Securities Act Regulations, is herein called the “Registration
Statement.” The Base Prospectus, including all documents incorporated therein by reference, as it may be supplemented
by the Prospectus Supplement, in the form in which such Base Prospectus and Prospectus Supplement have most recently been filed
by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, is herein called the “Prospectus.”
Any reference herein to the Registration Statement, the Prospectus or any amendment or supplement thereto shall be deemed to refer
to and include the documents incorporated by reference therein, and any reference herein to the terms “amend,” “amendment”
or “supplement” with respect to the Registration Statement or the Prospectus shall be deemed to refer to and include
the filing after the execution hereof of any document with the Commission deemed to be incorporated by reference therein (the
“Incorporated Documents”).
For
purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto
shall be deemed to include the most recent copy filed with the Commission on its Electronic Data Gathering Analysis and Retrieval
System, or if applicable, the Interactive Data Electronic Application system when used by the Commission (collectively, “XXXXX”).
2. Placements.
Each time that the Company wishes to issue and sell Placement Shares hereunder (each, a “Placement”), it will
notify Univest by email notice (or other method mutually agreed to in writing by the parties) of the proposed terms of such Placement,
which shall include at a minimum the number of Placement Shares to be issued, the time period during which sales are requested
to be made, any limitation on the number of Placement Shares that may be sold in any one day and any minimum price below which
sales may not be made (a “Placement Notice”), the form of which is attached hereto as Schedule 1.
The Placement Notice shall originate from any of the individuals from the Company set forth on Schedule 3 (with
a copy to each of the other individuals from the Company listed on such schedule) and shall be addressed to each of the individuals
from Univest set forth on Schedule 3, as such Schedule 3 may be amended from time to time. If Univest
wishes to accept such proposed terms included in the Placement Notice (which it may decline to do for any reason in its sole discretion)
or, following discussion with the Company, wishes to accept amended terms, Univest will, prior to 4:30 p.m. (New York City time)
on the Trading Day (as defined below) following the Trading Day on which such Placement Notice is delivered to Univest, issue
to the Company a notice by email (or other method mutually agreed to in writing by the parties) addressed to all of the individuals
from the Company and Univest set forth on Schedule 3) setting forth Univest’s acceptance of the Company’s
proposed terms or the amended terms that Univest is willing to accept. Where the terms provided in the Placement Notice are amended
as provided for in the immediately preceding sentence, such terms will not be binding on the Company or Univest until the Company
delivers to Univest an acceptance by email (or other method mutually agreed to in writing by the parties) of all of the terms
of such Placement Notice, as amended (the “Company Acceptance”), which email shall be addressed to all of the
individuals from the Company and Univest set forth on Schedule 3. The Placement Notice (as amended by the corresponding
Company Acceptance, as applicable) shall be effective upon receipt by the Company of Univest’s acceptance of the terms of
the Placement Notice or upon receipt by Univest of the Company’s Acceptance, as the case may be, unless and until (i) the
entire amount of the Placement Shares thereunder has been sold, (ii) the Company terminates the Placement Notice in accordance
with the notice requirements set forth in the second sentence of this paragraph, (iii) in accordance with the notice requirements
set forth in the second sentence of this paragraph, the Company issues a subsequent Placement Notice with parameters superseding
those on the earlier dated Placement Notice (as amended by the corresponding Company Acceptance, as applicable), (iv) this Agreement
has been terminated under the provisions of Section 13 hereof or (v) either the Company or Univest shall have suspended the sale
of the Placement Shares in accordance with Section 4 below. The amount of any discount, commission or other compensation to be
paid by the Company to Univest 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 Univest will have
any obligation whatsoever with respect to a Placement or any Placement Shares unless and until the Company delivers a Placement
Notice to Univest and either (i) Univest accepts the terms of such Placement Notice or (ii) where the terms of such Placement
Notice are amended, the Company accepts such amended terms by means of a Company Acceptance pursuant to the terms set forth above,
and then only upon the terms specified in such Placement Notice (as amended by the corresponding Company Acceptance, as applicable)
and herein. In the event of a conflict between the terms of this Agreement and the terms of a Placement Notice (as amended by
the corresponding Company Acceptance, as applicable), the terms of the Placement Notice (as amended by the corresponding Company
Acceptance, as applicable) will control.
3. Sale
of Placement Shares by Univest.
(a)
Subject to the provisions of Section 5(a) hereof, for the period specified in the Placement Notice (as amended by the corresponding
Company Acceptance, as applicable), Univest will use its commercially reasonable efforts consistent with its normal trading and
sales practices and applicable state and federal laws, rules and regulations and the rules of the Nasdaq Stock Market LLC (the
“Exchange”) to sell the Placement Shares up to the amount specified, and otherwise in accordance with the terms
of such Placement Notice (as amended by the corresponding Company Acceptance, as applicable). Univest will provide prompt written
confirmation to the Company and in no event later than the opening of the Trading Day (as defined below) immediately following
the Trading Day on which it has made sales of Placement Shares hereunder setting forth the number of Placement Shares sold on
such day, the compensation payable by the Company to Univest pursuant to Section 2 with respect to such sales, and the Net Proceeds
(as defined below) payable to the Company, with an itemization of the deductions made by Univest (as set forth in Section 5(b))
from the gross proceeds that it receives from such sales. Subject to the terms of the Placement Notice (as amended by the corresponding
Company Acceptance, as applicable), Univest shall sell Placement Shares only by methods deemed to be an “at the market”
offering as defined in Rule 415 of the Securities Act Regulations, including without limitation sales made directly on the Exchange,
on any other existing trading market for the Series A Preferred Stock or to or through a market maker. Subject to the terms of
the Placement Notice (as amended by the corresponding Company Acceptance, as applicable), and only with the Company’s prior
written consent, Univest may also sell Placement Shares by any other method permitted by law, or as may be required by the rules
or regulations of the Exchange or such other principal market on which the Series A Preferred Stock is listed or quoted, including
but not limited to, in negotiated transactions. “Trading Day” means any day on which shares of Series A Preferred
Stock are purchased and sold on the Exchange or other principal market on which the Series A Preferred Stock is listed or quoted.
(b)
During the term of this Agreement, neither Univest nor any of its affiliates or subsidiaries shall engage in (i) any short sale
of any security of the Company, (ii) any sale of any security of the Company that Univest does not own or any sale which is consummated
by the delivery of a security of the Company borrowed by, or for the account of, Univest or (iii) any market making bidding, stabilization
or other trading activity with respect to the Series A Preferred Stock or related derivative securities, or attempt to induce
another person to engage in any of the foregoing, if such activity would be prohibited under Regulation M or other anti-manipulation
rules under the Securities Act.
4. Suspension
of Sales. The Company or Univest 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 via auto-reply) or by telephone (confirmed immediately by verifiable
facsimile transmission or email correspondence to each of the individuals of the other party set forth on Schedule 3),
suspend any sale of the Placement Shares; provided, however, that such suspension shall not affect or impair any party’s
obligations with respect to any Placement Shares sold hereunder prior to the receipt of such notice. Each of the parties agrees
that no such notice under this Section 4 shall be effective against the other party unless it is made to one of the individuals
named on Schedule 3 hereto, as such Schedule may be amended from time to time.
5. Sale
and Delivery to Univest; Settlement.
(a) Sale
of Placement Shares. On the basis of the representations and warranties herein contained and subject to the terms and conditions
herein set forth, upon Univest’s acceptance of the terms of a Placement Notice or upon receipt by Univest of a Company Acceptance,
as the case may be, 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, Univest, for the period specified in the Placement Notice (as amended by the corresponding
Company Acceptance, as applicable), will use its commercially reasonable efforts consistent with its normal trading and sales
practices to sell such Placement Shares up to the amount specified in, and otherwise in accordance with, the terms of such Placement
Notice (as amended by the corresponding Company Acceptance, as applicable). The Company acknowledges and agrees that (i) there
can be no assurance that Univest will be successful in selling Placement Shares, (ii) Univest will incur no liability or obligation
to the Company or any other person or entity if it does not sell Placement Shares for any reason other than a failure by Univest
to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations
to sell such Placement Shares as required under this Agreement and (iii) Univest shall be under no obligation to purchase Placement
Shares on a principal basis pursuant to this Agreement, except as otherwise agreed by Univest and the Company in writing and expressly
set forth in a Placement Notice.
(b) Settlement
of Placement Shares. Unless otherwise specified in the applicable Placement Notice (as amended by the corresponding
Company Acceptance, as applicable), settlement for sales of Placement Shares will occur on the second (2nd) Trading Day following
the date on which such sales are made (or in such number of Trading Days that is consistent with the standard settlement period
on the Exchange or such other principal trading market of the Company) (each, a “Settlement Date”). The amount
of proceeds to be delivered to the Company on a Settlement Date against receipt of the Placement Shares sold (the “Net
Proceeds”) will be equal to the aggregate sales price received by Univest for the sale, after deduction for (i) Univest’s
commission, discount or other compensation for such sales payable by the Company pursuant to Section 2 hereof, and (ii) any transaction
fees imposed by any governmental or self-regulatory organization in respect of such sales.
(c) Delivery
of Placement Shares. On or before each Settlement Date, the Company will, or will cause its transfer agent to, electronically
transfer the Placement Shares being sold by crediting Univest’s or its designee’s account (provided Univest shall
have given the Company written notice of such designee a reasonable period of time prior to the Settlement Date) at The Depository
Trust Company through its Deposit and Withdrawal at Custodian System or by such other means of delivery as may be mutually agreed
upon by the parties hereto which in all cases shall be freely tradable, transferable, registered shares in good deliverable form.
On each Settlement Date, Univest will deliver the related Net Proceeds in same day funds to an account designated by the Company
on, or prior to, the Settlement Date. If the Company, or its transfer agent (if applicable), defaults in its obligation to deliver
Placement Shares on a Settlement Date through no fault of Univest, the Company agrees that in addition to and in no way limiting
the rights and obligations set forth in Section 11(a) hereto, it will (i) hold Univest harmless against any loss, claim, damage
or expense (including reasonable legal fees and expenses), as incurred, arising out of or in connection with such default by the
Company or its transfer agent (if applicable) and (ii) pay to Univest (without duplication) any commission, discount or other
compensation to which it would otherwise have been entitled absent such default.
(d) Denominations;
Registration. The Company shall deliver the Placement Shares, if any, through the facilities of The Depository Trust Company
unless Univest shall otherwise instruct. If Univest instructs the Company that any Placement Shares are to be issued in certificated
form, certificates for such Placement Shares shall be in such denominations and registered in such names as Univest may request
in writing at least three (3) Business Days (as defined below) before the Settlement Date. Any such certificates will be made
available for examination and packaging by Univest not later than 12:00 p.m. (New York City time) on the Business Day prior to
the Settlement Date. For purposes of this Agreement, “Business Day” shall mean any day other than a Saturday,
a Sunday or a legal holiday or a day on which the Federal Reserve Bank of New York is closed.
(e) Limitations
on Offering Size. Under no circumstances shall the Company cause or request the offer or sale of any Placement
Shares if, after giving effect to the sale of such Placement Shares, the aggregate gross sales proceeds of Placement Shares sold
pursuant to this Agreement would exceed the lesser of (i) the Maximum Amount and (ii) the amount authorized from time to time
to be issued and sold under this Agreement by the Company’s board of directors, a duly authorized committee thereof or a
duly authorized executive committee, and notified to Univest in writing. Under no circumstances shall the Company cause or request
the offer or sale of any Placement Shares pursuant to this Agreement at a price lower than the minimum price authorized from time
to time by the Company’s board of directors, a duly authorized committee thereof or a duly authorized executive committee,
and notified to Univest in writing.
(f) Black-out
Limitations.
|
i. |
Notwithstanding
any other provision of this Agreement, the Company shall not offer or sell, or instruct Univest to offer or sell, any Placement
Shares through Univest as agent (and, by notice to Univest given by telephone (confirmed promptly by telecopy or email), shall
cancel any instructions for any such offer or sale of any Placement Shares prior to the commencement of the periods referenced
below), and Univest shall not be obligated to make any such offer or sale of Placement Shares, (x) during any period in which
the Company is, or could be deemed to be, in possession of material non-public information or (y) except as provided in Section
5(f)(ii) hereof, at any time during the period commencing on the tenth (10th) Business Day prior to the time the Company issues
a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a
fiscal period or periods (each, an “Earnings Announcement”) through and including the time that is 24 hours
after the time that the Company files a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing
Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case
may be, covered by such Earnings Announcement. |
|
ii. |
If the
Company wishes to offer or sell Placement Shares to Univest as agent at any time during the period from and including an Earnings
Announcement through and including the time that is 24 hours after the corresponding Filing Time, the Company shall first
(w) prepare and deliver to Univest (with a copy to counsel to Univest) a Current Report on Form 8-K that includes substantially
the same financial and related information (together with management’s discussion and analysis thereof) that was included
in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations)
(each, an “Earnings 8-K”), in form and substance reasonably satisfactory to Univest, and, prior to its
filing, obtain the written consent of Univest to such filing (which consent shall not be unreasonably withheld), (x) provide
Univest with the officers’ certificate, opinions and letters of counsel and accountant’s comfort letters specified
in Sections 7(l), (m) and (n), respectively, hereof, (y) afford Univest the opportunity to conduct a due diligence review
in accordance with Section 7(j) hereof prior to filing such Earnings 8-K and (z) file such Earnings 8-K with the Commission,
then the provision of clause (y) of Section 5(f)(i) shall not be applicable for the period from and after the time at which
the foregoing conditions shall have been satisfied (or, if later, the time that is 24 hours after the time that the relevant
Earnings Announcement was first publicly released) through and including the time that is 24 hours after the Filing Time of
the relevant Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be. For purposes of clarity, the
parties hereto agree that (A) the delivery of any officers’ certificate, opinions or letters of counsel, or accountant’s
comfort letter pursuant to this Section 5(f)(ii) shall not relieve the Company from any of its obligations under this Agreement
with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation,
the obligation to deliver officers’ certificates, opinions and letters of counsel and accountant’s comfort letters
as provided in Sections 7(l), (m) and (n), respectively, hereof, and (B) this Section 5(f)(ii) shall in no way affect or limit
the operation of Section 5(f)(i) hereof, which shall have independent application. |
6. Representations
and Warranties of the Company. The Company represents and warrants to, and agrees with, Univest that as of the date of this
Agreement, as of each Applicable Time (as defined below) and as of each Settlement Date, unless such representation, warranty
or agreement specifies a different time:
(a) Exchange
Act Registration. The Series A Preferred Stock is registered pursuant to Section 12(b) under the Exchange Act. The Company
has taken no action designed to, or likely to have the effect of, terminating the registration of the shares of Series A Preferred
Stock under the Exchange Act, nor has the Company received any notification that the Commission is contemplating terminating such
registration.
(b) Stock
Exchange Listing. The Series A Preferred Stock is listed on the Exchange under the trading symbol “SLNHP”, and
the Company has taken no action designed to, or likely to, have the effect of delisting the Series A Preferred Stock from the
Exchange, nor has the Company received any notification that the Exchange is contemplating terminating such listing except as
otherwise described in the Registration Statement and the Prospectus. The Company has filed an application for the Listing of
Additional Shares with the Exchange to list the Placement Shares.
(c) Registration
Statement and Prospectus. The Company and, assuming no act or omission on the part of Univest that would make such statement
untrue, the transactions contemplated by this Agreement meet the requirements for and comply with the conditions for the use of
Form S-3 under the Securities Act, including Instruction I.B.1 thereunder. The Registration Statement has been filed with the
Commission and has been declared effective under the Securities Act. The Prospectus Supplement will name Univest as an agent in
the section entitled “Plan of Distribution.” The Company has not received, and has no notice of, any order of the
Commission preventing or suspending the use of the Registration Statement, or threatening or instituting proceedings for that
purpose. The Registration Statement and the offer and sale of the Placement Shares as contemplated hereby meet the requirements
of Rule 415 under the Securities Act and comply in all material respects with said Rule. Any statutes, regulations, contracts
or other documents that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits
to the Registration Statement have been so described or filed. Copies of the Registration Statement, the Prospectus and any such
amendments or supplements and all documents incorporated by reference therein that were filed with the Commission on or prior
to the date of this Agreement have been delivered, or are available through XXXXX, to Univest and its counsel. The Company has
not distributed and, prior to the later to occur of each Settlement Date and completion of the distribution of the Placement Shares,
will not distribute any offering material in connection with the offering or sale of the Placement Shares other than the Registration
Statement and the Prospectus and any Issuer Free Writing Prospectus (as defined below).
(d) No
Misstatement or Omission. As of the date hereof and at the respective times the Registration Statement or any amendment thereto
became or becomes effective, the Registration Statement did not and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. The Prospectus
and any amendment and supplement thereto, as of their respective dates and at each Applicable Time (defined below) and each Settlement
Date, did not or will not include an untrue statement of a material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were made, not misleading. The foregoing shall not apply to
statements in, or omissions from, the Registration Statement or the Prospectus, as amended or supplemented, made in reliance upon,
and in conformity with, information furnished to the Company in writing by Univest specifically for use therein. For purposes
of this Agreement, unless otherwise specifically agreed to by Univest in writing, the only information so furnished by Univest
shall be Univest’s name (the “Agent’s Information”).
(e) Compliance
with the Securities Act and Exchange Act. The Registration Statement, the Prospectus, or any amendment or supplement thereto,
when such documents were or are filed with the Commission or became or become effective under the Securities Act, as the case
may be, complied or will comply in all material respects with the requirements of the Securities Act, the Securities Act Regulations
and the Exchange Act and the rules and regulations thereunder, as applicable. The Incorporated Documents, when they were filed
with the Commission, conformed in all material respects to the requirements of the Exchange Act and the rules and regulations
of the Commission thereunder and did not contain an untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under which they were made, not misleading; and any further
Incorporated Documents so filed and incorporated by reference, when they are filed with the Commission, will conform in all material
respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder and will not contain
an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
(f) Financial
Information. The consolidated financial statements of the Company, including the related notes and schedules, included or
incorporated by reference in the Registration Statement and the Prospectus, present fairly, in all material respects, the consolidated
financial position of the Company and the Subsidiaries (as defined below) as of the dates indicated and the consolidated results
of operations, cash flows and changes in stockholders’ equity of the Company for the periods specified (subject, in the
case of unaudited statements, to normal year-end audit adjustments) and have been prepared in compliance with the requirements
of the Securities Act and Exchange Act, as applicable, and in conformity with GAAP (as defined below) applied on a consistent
basis (except for such adjustments to accounting standards and practices as are noted therein and except in the case of unaudited
financial statements to the extent they may exclude footnotes or may be condensed or summary statements) during the periods involved;
the other financial and statistical data with respect to the Company and the Subsidiaries contained or incorporated by reference
in the Registration Statement and the Prospectus are accurately and fairly presented in all material respects and prepared on
a basis materially consistent with the financial statements and books and records of the Company; there are no financial statements
(historical or pro forma) that are required to be included or incorporated by reference in the Registration Statement or the Prospectus
that are not included or incorporated by reference as required; the Company and the Subsidiaries do not have any material liabilities
or obligations, direct or contingent (including any off-balance sheet obligations), not described in the Registration Statement
(including the exhibits thereto and Incorporated Documents) and the Prospectus which are required to be described in the Registration
Statement or the Prospectus (including exhibits thereto and Incorporated Documents); and all disclosures contained or incorporated
by reference in the Registration Statement and the Prospectus regarding “non-GAAP financial measures” (as such term
is defined by the rules and regulations of the Commission) comply in all material respects with Regulation G of the Exchange Act
and Item 10 of Regulation S-K under the Securities Act, to the extent applicable. The interactive data in eXtensible Business
Reporting Language included or incorporated by reference in the Registration Statement and the Prospectus truly, accurately and
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.
(g) Conformity
with XXXXX Filings. The Prospectus delivered to Univest for use in connection with the sale of the Placement Shares pursuant
to this Agreement will be identical to the versions of the Prospectus created to be transmitted to the Commission for filing via
XXXXX, except to the extent permitted by Regulation S-T.
(h) Organization.
The Company and each of its Subsidiaries are, and will be, duly incorporated or formed, validly existing and in good standing
under the laws of their respective jurisdictions of incorporation or formation. The Company and each of its Subsidiaries are,
and will be, duly licensed or qualified as a foreign entity for transaction of business and in good standing under the laws of
each other jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses
requires such license or qualification, and have all power and authority (corporate or otherwise) necessary to own or hold their
respective properties and to conduct their respective businesses as described in the Registration Statement and the Prospectus,
except where the failure to be so qualified or in good standing or have such power or authority would not, individually or in
the aggregate, have a material adverse effect on the assets, business, operations, earnings, properties, condition (financial
or otherwise), prospects, stockholders’ equity (as set forth on the Company’s most recent balance sheet included in
the Incorporated Documents) or results of operations of the Company and the Subsidiaries (as defined below) taken as a whole (a
“Material Adverse Effect”).
(i) Subsidiaries. Schedule
4 hereto sets forth each of the Company’s direct and indirect subsidiaries (each a Subsidiary” and
collectively, the “Subsidiaries”). Except as otherwise disclosed in the Registration Statement and the Prospectus,
all of the equity interests of each Subsidiary have been duly and validly authorized and issued, are owned directly or indirectly
by the Company, are fully paid in accordance with its articles of association, memorandum of association or charter documents
and non-assessable and are free and clear of all liens, encumbrances, equities or claims (“Liens”). None of
the outstanding share capital or equity interest in any Subsidiary was issued in violation of preemptive or similar rights of
any security holder of such Subsidiary. All of the constitutive or organizational documents of each of the Subsidiaries comply
with the requirements of applicable laws of its jurisdiction of incorporation or organization and are in full force and effect.
Apart from the Subsidiaries, the Company has no direct or indirect subsidiaries or any other company over which it has direct
or indirect effective control. Other than the Subsidiaries, the Company does not directly or indirectly control any entity through
contractual arrangements or otherwise such that the entity would be deemed a consolidated affiliated entity whose financial results
would be consolidated under U.S. GAAP with the financial results of the Company on the consolidated financial statements of the
Company, regardless of whether the Company directly or indirectly owns less than a majority of the equity interests of such person.
(j) No
Violation or Default. Neither the Company nor any of its Subsidiaries is (i) in violation of its charter or by-laws or similar
organizational documents; (ii) in default, and no event has occurred that, with notice or lapse of time or both, would constitute
such a default, in the due performance or observance of any term, covenant or condition contained in any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by
which the Company or any of its Subsidiaries is bound or to which any of the property or assets of the Company or any of its Subsidiaries
are subject; or (iii) in violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator
or governmental or regulatory authority applicable to the Company, except, in the case of each of clauses (ii) and (iii) above,
for any such violation or default that would not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. To the Company’s knowledge, no other party under any material contract or other agreement to which it or
any of its Subsidiaries is a party is in default in any respect thereunder where such default would reasonably be expected to
have a Material Adverse Effect.
(k) No
Material Adverse Change. Subsequent to the respective dates as of which information is given in the Registration Statement
and in the Prospectus (including Incorporated Documents), and other than the Company’s execution of this Agreement and the
sale of any Placement Shares hereunder, there has not been (i) any Material Adverse Effect, (ii) any transaction which is material
to the Company and the Subsidiaries taken as a whole, (iii) any obligation or liability, direct or contingent (including any off-balance
sheet obligations), incurred by the Company or any Subsidiary, which is material to the Company and the Subsidiaries taken as
a whole, (iv) any material change in the capital stock or outstanding long-term indebtedness of the Company or any of its Subsidiaries
or (v) other than in respect of dividends declared or paid on the Series A Preferred Stock, any dividend or distribution of any
kind declared, paid or made on the capital stock of the Company or any Subsidiary, other than in each case above (A) in the ordinary
course of business, (B) as otherwise disclosed in the Registration Statement or Prospectus (including any document deemed incorporated
by reference therein) or (C) where such matter, item, change or development would not make the statements in the Registration
Statement or the Prospectus 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.
(l) Capitalization.
The authorized, issued and outstanding capital stock of the Company is as set forth in the Registration Statement and the Prospectus
(other than for subsequent issuances, if any, pursuant to employee benefit plans described in the Registration Statement and the
Prospectus or upon exercise of outstanding options or warrants described in the Registration Statement and the Prospectus, as
the case may be). The Series A Preferred Stock conforms, and, when issued and delivered as provided in this Agreement, will conform,
in all material respects to the description thereof contained in the Registration Statement and the Prospectus, and will entitle
the holders of the shares of Series A Preferred Stock to the rights and benefits provided therein and in the certificate of designations,
preferences and rights of Series A Preferred Stock, as amended. Other than as set forth or described in the Registration Statement
and the Prospectus, as of the dates referred to therein, the Company did not have outstanding any options to purchase, or any
rights or warrants to subscribe for, or any securities or obligations convertible into, or exchangeable for, or any contracts
or commitments to issue or sell, any shares of capital stock or other securities.
(m) Authorization;
Enforceability. The Company has full legal right, power and authority to enter into this Agreement and perform the transactions
contemplated hereby. This Agreement has been duly authorized, executed and delivered by the Company and is a legal, valid and
binding agreement of the Company enforceable against the Company in accordance with its terms, except to the extent that (i) enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally
and by general equitable principles and (ii) the indemnification and contribution provisions of Section 11 hereof may be limited
by federal or state securities laws and public policy considerations in respect thereof.
(n) Authorization
of Placement Shares. The Placement Shares, when issued and delivered pursuant to the terms approved by the board of directors
of the Company or a duly authorized committee thereof, or a duly authorized executive committee, against payment therefor as provided
herein, will be duly and validly authorized and issued and fully paid and non-assessable, free and clear of any pledge, lien,
encumbrance, security interest or other claim (other than any pledge, lien, encumbrance, security interest or other claim arising
from an act or omission of Univest or a purchaser), including any statutory or contractual preemptive rights, resale rights, rights
of first refusal or other similar rights, and will be registered pursuant to Section 12 of the Exchange Act.
(o) No
Consents Required. No consent, approval, authorization, order, registration or qualification of or with any court or arbitrator
or any governmental or regulatory authority is required for the execution, delivery and performance by the Company of this Agreement,
and the issuance and sale by the Company of the Placement Shares as contemplated hereby, except for the registration of the Placement
Shares under the Securities Act and such consents, approvals, authorizations, orders and registrations or qualifications as may
be required under applicable state securities laws or by the by-laws and rules of the Financial Industry Regulatory Authority
(“FINRA”) or the Exchange in connection with the sale of the Placement Shares by Univest.
(p) No
Preferential Rights. Except as set forth in the Registration Statement and the Prospectus, (i) no person, as such term is
defined in Rule 1-02 of Regulation S-X promulgated under the Securities Act (each, a “Person”), has the right,
contractual or otherwise, to cause the Company to issue or sell to such Person any shares of Series A Preferred Stock or shares
of any other capital stock or other securities of the Company (other than upon the exercise of options or warrants to purchase
Series A Preferred Stock), (ii) no Person has any preemptive rights, rights of first refusal, or any other rights (whether pursuant
to a “poison pill” provision or otherwise) to purchase any shares of Series A Preferred Stock or shares of any other
capital stock or other securities of the Company from the Company which have not been duly waived with respect to the offering
contemplated hereby, (iii) except as may be disclosed to Univest in writing, 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 Series A Preferred Stock, and (iv) no Person
has the right, contractual or otherwise, to require the Company to register under the Securities Act any shares of Series A Preferred
Stock or shares of any other capital stock or other securities of the Company, or to include any such shares or other securities
in the Registration Statement or the offering contemplated thereby, whether as a result of the filing or effectiveness of the
Registration Statement or the sale of the Placement Shares as contemplated thereby or otherwise.
(q) Independent
Public Accountant. UHY LLP and Wojeski & Company, CPAs, P.C., whose respective reports on the consolidated
financial statements of the Company are filed with the Commission as part of the Company’s most recent Annual Report
on Form 10-K filed with the Commission and incorporated into the Registration Statement, are each and, during the
periods covered by its report, was, to the Company’s knowledge, an independent registered public accounting firm within
the meaning of the Securities Act and the Public Company Accounting Oversight Board (United States). To the
Company’s knowledge, neither UHY LLP nor Wojeski & Company, CPAs, P.C. was in violation of the auditor independence
requirements of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”) with respect to the Company.
Neither UHY LLP nor Wojeski & Company, CPAs, P.C. has, during the periods covered by the financial statements included in
the Registration Statement and the Prospectus, provided to the Company any non-audit services, as such term is used in
Section 10A(g) of the Exchange Act.
(r) Enforceability
of Agreements. To the Company’s knowledge, all agreements between the Company and third parties expressly referenced
in the Prospectus, other than such agreements that have expired by their terms or whose termination is disclosed in documents
filed by the Company on XXXXX, are legal, valid and binding obligations of the Company enforceable in accordance with their respective
terms, except to the extent that (i) enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors’ rights generally and by general equitable principles and (ii) the indemnification provisions of
certain agreements may be limited by federal or state securities laws or public policy considerations in respect thereof, except
for any unenforceability that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.
(s) No
Litigation. Except as set forth in the Registration Statement and the Prospectus, there are no legal, governmental or regulatory
actions, suits or proceedings pending, nor, to the Company’s knowledge, any legal, governmental or regulatory investigations,
to which the Company or a Subsidiary is a party or to which any property of the Company or any of its Subsidiaries is the subject
that, individually or in the aggregate, if determined adversely to the Company or any of its Subsidiaries, would reasonably be
expected to have a Material Adverse Effect or materially and adversely affect the ability of the Company to perform its obligations
under this Agreement; to the Company’s knowledge, no such actions, suits or proceedings are threatened or contemplated by
any governmental or regulatory authority or threatened by others that, individually or in the aggregate, if determined adversely
to the Company or any of its Subsidiaries, would reasonably be expected to have a Material Adverse Effect.
(t) Licenses
and Permits. The Company and each of its Subsidiaries possess or have obtained, all licenses, certificates, consents, orders,
approvals, permits and other authorizations issued by, and, to the Company’s knowledge, have made all declarations and filings
with, the appropriate federal, state, local or foreign governmental or regulatory authorities that are necessary for the ownership
or lease of their respective properties or the conduct of their respective businesses as described in the Registration Statement
and the Prospectus (the “Permits”), except where the failure to possess, obtain or make the same would not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of its
Subsidiaries has received written notice of any proceeding relating to revocation or modification of any such Permit or has any
reason to believe that such Permit will not be renewed in the ordinary course, except where the failure to obtain any such renewal
would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(u) Shell
Company. The Company is not a shell company (as defined in Rule 405 under the Securities Act) 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.
(v) No
Material Defaults. Neither the Company nor any of the Subsidiaries has defaulted on any installment on indebtedness for borrowed
money or on any rental on one or more long-term leases, which defaults, individually or in the aggregate, would reasonably be
expected to have a Material Adverse Effect. The Company has not filed a report pursuant to Section 13(a) or 15(d) of the Exchange
Act since the filing of its last Annual Report on Form 10-K, indicating that it (i) has failed to pay any dividend or sinking
fund installment on preferred stock or (ii) has defaulted on any installment on indebtedness for borrowed money or on any rental
on one or more long-term leases, which defaults, individually or in the aggregate, would reasonably be expected to have a Material
Adverse Effect.
(w) Certain
Market Activities. Neither the Company, nor any of the Subsidiaries, nor, to the Company’s knowledge, any of their respective
directors, officers or controlling persons has taken, directly or indirectly, any action designed, or that has constituted or
might reasonably be expected to cause or result in, under the Exchange Act or otherwise, the stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale of the Placement Shares.
(x) Broker/Dealer
Relationships. Neither the Company nor any of the Subsidiaries or any related entities (i) is required to register as a “broker”
or “dealer” in accordance with the provisions of the Exchange Act or (ii) directly or indirectly through one or more
intermediaries, controls or is a “person associated with a member” or “associated person of a member”
(within the meaning set forth in the FINRA Manual).
(y) No
Reliance. The Company has not relied upon Univest or legal counsel for Univest for any legal, tax or accounting advice in
connection with the offering and sale of the Placement Shares.
(z) Taxes.
The Company and each of its Subsidiaries have filed all federal, state, local and foreign tax returns which have been required
to be filed prior to the date hereof or have duly obtained extensions of time for the filing thereof, except where the failure
to do so would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Company and
each of its Subsidiaries have paid all taxes on such returns that were filed through the date hereof or any penalty, fine or other
assessment levied against them, to the extent that such taxes, penalties, fines or other assessments have become due and are not
being contested in good faith, except where the failure to do so would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect. Except as otherwise disclosed in or contemplated by the Registration Statement or the Prospectus,
no tax deficiency has been determined adversely to the Company or any of its Subsidiaries which has had, or would reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect. The Company has no knowledge of any federal, state
or other governmental tax deficiency, penalty or assessment which has been asserted or threatened against it which would have
a Material Adverse Effect.
(aa) Title
to Real and Personal Property. The Company and its Subsidiaries have good and marketable title in fee simple to all items
of real property owned by any of them and good and valid title to all personal property described in the Registration Statement
or Prospectus as being owned by them that are material to the businesses of the Company or such Subsidiary, in each case free
and clear of all liens, encumbrances and claims, except those that (i) do not materially interfere with the use made of such property
by the Company and any of its Subsidiaries or (ii) would not reasonably be expected, individually or in the aggregate, to have
a Material Adverse Effect. Any real property, equipment or other property described in the Registration Statement or Prospectus
as being leased by the Company and any of its Subsidiaries is held by them under valid, existing and enforceable leases, except
those that (A) do not materially interfere with the use made or proposed to be made of such property by the Company or any of
its Subsidiaries or (B) would not be reasonably expected, individually or in the aggregate, to have a Material Adverse Effect.
(bb) Intellectual
Property. The Company and its Subsidiaries own or possess adequate rights to use all patents, patent applications, trademarks
(both registered and unregistered), service marks, trade names, trademark registrations, service xxxx registrations, copyrights,
licenses, inventions and know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures) (collectively, the “Intellectual Property”), necessary for the conduct
of their respective businesses as conducted and as described in the Registration Statement, including the Incorporated Documents,
and the Prospectus as of the date hereof, except to the extent that the failure to own or possess adequate rights to use such
Intellectual Property would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Except
as disclosed in writing to Univest, the Company and any of its Subsidiaries have not received any written notice of any claim
of infringement or conflict which asserted Intellectual Property rights of others, which infringement or conflict, if the subject
of an unfavorable decision, would reasonably be expected to result in a Material Adverse Effect. There are no pending, or to the
Company’s knowledge, threatened judicial proceedings or interference proceedings against the Company or its Subsidiaries
challenging the Company’s or its Subsidiaries’ rights in or to or the validity of the scope of any of the Company’s
or its Subsidiaries’ owned material patents, patent applications or proprietary information, and no other entity or individual
has any right or claim in any of the Company’s or its Subsidiaries’ owned material patents, patent applications or
any patent to be issued therefrom by virtue of any contract, license or other agreement entered into between such entity or individual
and the Company or a Subsidiary or, to the Company’s knowledge, by any noncontractual obligation of the Company or a Subsidiary,
other than by written licenses granted by the Company or a Subsidiary and other than such rights or claims that would not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Company and its Subsidiaries have not received
any written notice of any claim challenging the rights of the Company or a Subsidiary in or to any Intellectual Property owned,
licensed or optioned by the Company or such Subsidiary which claim, if the subject of an unfavorable decision, would reasonably
be expected to result in a Material Adverse Effect.
(cc) Environmental
Laws. The Company and its Subsidiaries (i) are in compliance with any and all applicable federal, state, local and foreign
laws, rules, regulations, decisions, ordinances and orders relating to pollution or the protection of human health and safety,
the environment or wildlife, including, without limitation, laws and regulations relating to the release or threatened release
of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous substances, petroleum or petroleum products (collectively
“Hazardous Materials”), or to the manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials (collectively, “Environmental Laws”); (ii) have received and are
in compliance with all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their
respective businesses as described in the Registration Statement and the Prospectus; and (iii) have not received notice of any
actual or potential liability for the investigation or remediation of any disposal or release of Hazardous Materials, except,
in the case of any of clauses (i), (ii) or (iii) above, for any such failure to comply or failure to receive required permits,
licenses or other approvals or liability as would not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(dd) Disclosure
Controls. Except as set forth in the Registration Statement and the Prospectus, the Company and each of its Subsidiaries maintain
systems of internal control over financial reporting (as defined under Rule 13a-15 and 15d-15 under the Exchange Act) that comply
with the requirements of the Exchange Act and are effective to provide reasonable assurance that (i) transactions are executed
in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP and to maintain asset accountability; (iii) access to assets is permitted
only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
The Company is not aware of any material weaknesses in its internal control over financial reporting (other than as set forth
in the Registration Statement and the Prospectus). Since the date of the latest audited financial statements of the Company included
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 (other than
as set forth in the Registration Statement and the Prospectus). Except as set forth in the Registration Statement and the Prospectus,
the Company has established disclosure controls and procedures (as defined in Rules 13a-15 and 15d-15 under the Exchange Act)
for the Company that are effective 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, and is accumulated and communicated to the Company’s management, including its principal executive officer
or principal financial officer, as appropriate, to allow timely decisions regarding disclosure.
(ee) Xxxxxxxx-Xxxxx.
There is and has been no failure on the part of the Company or, to the knowledge of the Company, any of the Company’s directors
or officers, in their capacities as such, to comply with any applicable provisions of the Xxxxxxxx-Xxxxx Act and the rules and
regulations promulgated thereunder. Each of the principal executive officer and the principal financial officer of the Company
(or each former principal executive officer of the Company and each former principal financial officer of the Company as applicable)
has made all certifications required by Sections 302 and 906 of the Xxxxxxxx-Xxxxx Act with respect to all reports, schedules,
forms, statements and other documents required to be filed by it or furnished by it to the Commission. For purposes of the preceding
sentence, “principal executive officer” and “principal financial officer” shall have the meanings given
to such terms in the Xxxxxxxx-Xxxxx Act.
(ff) Finder’s
Fees. Except as described in the Registration Statement and the Prospectus, there are no claims, payments, arrangements, agreements
or understandings relating to the payment of a finder’s, consulting or origination fee by the Company or any officer or
director of the Company with respect to the sale of the Placement Shares hereunder or any other arrangements, agreements or understandings
of the Company or, to the Company’s knowledge, any of its stockholders that may affect Univest’s compensation, as
determined by FINRA.
(gg) Labor
Disputes. No labor disturbance by or dispute with employees of the Company or any of its Subsidiaries exists or, to the knowledge
of the Company, is threatened which would reasonably be expected to result in a Material Adverse Effect.
(hh) Investment
Company Act. Neither the Company nor any of the Subsidiaries is or, after giving effect to the offering and sale of the Placement
Shares, will be an “investment company” or an entity “controlled” by an “investment company,”
as such terms are defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”).
(ii) Money
Laundering Laws. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance
with applicable financial record keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of
1970, as amended, the money laundering statutes of all jurisdictions to which the Company or its Subsidiaries are subject, the
rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced
by any governmental agency having jurisdiction over the Company or its Subsidiaries (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.
(jj) Off-Balance
Sheet Arrangements. There are no transactions, arrangements and other relationships between and/or among the Company, and/or,
to the knowledge of the Company, any of its affiliates and any unconsolidated entity, including, but not limited to, any structured
finance, special purpose or limited purpose entity (each, an “Off Balance Sheet Transaction”) that would reasonably
be expected to affect materially the Company’s liquidity or the availability of or requirements for its capital resources,
including those Off Balance Sheet Transactions described in the Commission’s Statement about Management’s Discussion
and Analysis of Financial Conditions and Results of Operations (Release Nos. 33-8056; 34-45321; FR-61), in each case that are
required to be described in the Registration Statement and the Prospectus which have not been described as required.
(kk) [Reserved].
(ll) Forward
Looking Statements. No forward-looking statement (within the meaning of Section 27A of the Securities 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.
(mm) Margin
Rules. Neither the issuance, sale and delivery of the Placement Shares nor the application of the proceeds thereof by the
Company as described in the Registration Statement and the Prospectus will violate Regulation T, U or X of the Board of Governors
of the Federal Reserve System or any other regulation of such Board of Governors.
(nn) Insurance.
The Company and each of its Subsidiaries carry, or are covered by, insurance in such amounts and covering such risks as the Company
and each of its Subsidiaries reasonably believe are adequate for the use of their properties and as is customary for companies
of similar size engaged in similar businesses in similar industries, and all such insurance is in full force and effect. There
are no claims by the Company or any of its Subsidiaries under any policy or instrument as to which any insurance company is denying
liability or defending under a reservation of rights clause. Neither the Company nor any of its Subsidiaries has been refused
any insurance coverage sought or applied for except for claims which would not, individually or in the aggregate, reasonably be
expected to result in a Material Adverse Effect. Neither the Company nor any of its Subsidiaries has any reason to believe that
it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business at a cost that would not reasonably be expected to have a Material
Adverse Effect.
(oo) No
Improper Practices. (i) Neither the Company nor, to the Company’s knowledge, the Subsidiaries, nor to the Company’s
knowledge, any of their respective executive officers has made any unlawful contributions to any candidate for any political office
(or failed fully to disclose any contribution in violation of law) or made any contribution or other payment to any official of,
or candidate for, any federal, state, municipal, or foreign office or other person charged with similar public or quasi-public
duty in violation of any law or of the character required to be disclosed in the Registration Statement and the Prospectus; (ii)
no relationship, direct or indirect, exists between or among the Company or, to the Company’s knowledge, any Subsidiary
or any affiliate of any of them, on the one hand, and the directors, officers and stockholders of the Company or, to the Company’s
knowledge, any Subsidiary, on the other hand, that is required by the Securities Act to be described in the Registration Statement
and the Prospectus that is not so described; (iii) no relationship, direct or indirect, exists between or among the Company or
any Subsidiary or any affiliate of them, on the one hand, and the directors, officers, stockholders or directors of the Company
or, to the Company’s knowledge, any Subsidiary, on the other hand, that is required by the rules of FINRA to be described
in the Registration Statement and the Prospectus that is not so described; (iv) except as described in the Registration Statement
and the Prospectus, there are no material outstanding loans or advances or material guarantees of indebtedness by the Company
or, to the Company’s knowledge, any Subsidiary to or for the benefit of any of their respective officers or directors or
any of the members of the families of any of them; (v) the Company has not offered, or caused any placement agent to offer, Series
A Preferred Stock to any person with the intent to influence unlawfully (A) a customer or supplier of the Company or any Subsidiary
to alter the customer’s or supplier’s level or type of business with the Company or any Subsidiary or (B) a trade
journalist or publication to write or publish favorable information about the Company or any Subsidiary or any of their respective
products or services; and (vi) neither the Company nor any Subsidiary nor, to the Company’s knowledge, any employee or agent
of the Company or any Subsidiary has made any payment of funds of the Company or any Subsidiary or received or retained any funds
in violation of any law, rule or regulation (including, without limitation, the Foreign Corrupt Practices Act of 1977 and any
other applicable anti-corruption or anti-bribery laws), which payment, receipt or retention of funds is of a character required
to be disclosed in the Registration Statement or the Prospectus.
(pp) Status
Under the Securities Act. The Company was not and is not an ineligible issuer as defined in Rule 405 under the Securities
Act at the times specified in Rules 164 and 433 under the Securities Act in connection with the offering of the Placement Shares.
(qq) No
Misstatement or Omission in an Issuer Free Writing Prospectus. Each Issuer Free Writing Prospectus, as of its issue date and
as of each Applicable Time (as defined in Section 25 below) and Settlement Date, did not, does not and will not include any information
that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including
any incorporated document deemed to be a part thereof that has not been superseded or modified, or included, includes or will
include an untrue statement of a material fact or omitted, omits or will omit to state a material fact necessary in order to make
the statements therein, in light of the circumstances under which they were made, not misleading. The foregoing sentence does
not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with the Agent’s
Information.
(rr) No
Conflicts. Neither the execution, delivery and performance of this Agreement by the Company or the consummation of the transactions
contemplated herein and in the Registration Statement and the Prospectus (including the issuance and sale of the Placement Shares)
will conflict with, or will result in a breach of, any of the terms and provisions of, or has constituted or will constitute a
default under, or has resulted in or will result in the creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Company pursuant to the terms of any contract or other agreement to which the Company may be bound or to which
any of the property or assets of the Company is subject, except such conflicts, breaches, defaults, liens, charges or encumbrances
as may have been waived or that would not reasonably be expected to have a Material Adverse Effect; nor will such action result
(x) in any violation of the provisions of the certificate of incorporation, bylaws or other organizational documents of the Company,
or (y) in any material violation of the provisions of any statute or any order, rule or regulation applicable to the Company or
of any court or of any federal, state or other regulatory authority or other government body having jurisdiction over the Company,
except where such violation in clause (y) would not reasonably be expected to have a Material Adverse Effect.
(ss) OFAC.
(i) Neither the Company nor any of its Subsidiaries (collectively, the “Entity”) or, to the Company’s
knowledge, any director, officer, employee, agent, affiliate or representative of the Entity, is a government, individual or entity
(in this paragraph (ss), “Person”) that is, or is owned or controlled by a Person that is:
(A)
the subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control
(“OFAC”), the United Nations Security Council (“UNSC”), the European Union (“EU”),
Her Majesty’s Treasury (“HMT”), or other relevant sanctions authority (collectively, “Sanctions”),
nor
(B)
located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Burma/Myanmar,
Cuba, Iran, North Korea, Sudan and Syria).
(ii)
The Company represents and covenants that the Entity will not, directly or indirectly, knowingly use the proceeds from the 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 Person 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 Person (including any Person participating in the offering
and sale of the Placement Shares, whether as underwriter, advisor, investor or otherwise).
(iii)
The Company represents and covenants that, except as detailed in the Registration Statement and the Prospectus, for the past five
years, the Entity has not knowingly engaged in, is not now knowingly engaged in, and will not knowingly engage in, any dealings
or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the
subject of Sanctions.
(tt) Stock
Transfer Taxes. On each Settlement Date, all stock transfer or other taxes (other than income taxes) which are required to
be paid in connection with the sale and transfer of the Placement Shares to be sold hereunder will be, or will have been, fully
paid or provided for by the Company and all laws imposing such taxes will be or will have been fully complied with in all material
respects.
(uu) Statistical,
Demographic or Market-Related Data. Any statistical, demographic or market-related data included or incorporated by reference
in the Registration Statement or the Prospectus is based on or derived from sources that the Company believes to be reliable and
accurate, all such data included or incorporated by reference in the Registration Statement or the Prospectus accurately reflects
the materials upon which it is based or from which it was derived. The Company has obtained the written consent for the use of
such data from such sources to the extent necessary or as required.
(vv) Regulations.
The disclosures in the Registration Statement and the Prospectus concerning the effects of federal, state, local and all foreign
regulation on the Company’s business as currently contemplated are correct in all material respects and no other such regulations
are required to be disclosed in the Registration Statement and the Prospectus which are not so disclosed.
(ww) Cybersecurity.
The Company and its Subsidiaries’ information technology assets and equipment, computers, systems, networks, hardware,
software, websites, applications, and databases (collectively, “IT Systems”) are (i) in all material respects
adequate for, and operate and perform as required in connection with the operation of the business of the Company as currently
conducted, and (ii) to the knowledge of the Company, free and clear of all material bugs, errors, defects, Trojan horses, time
bombs, malware and other corruptants. The Company and its Subsidiaries have implemented and maintained commercially reasonable
physical, technical and administrative controls, and safeguards designed to maintain and protect the integrity and security of
all IT Systems and all confidential information and data material to their businesses (“Confidential Data”).
To the knowledge of the Company, there have been no breaches of the security of, or unauthorized uses of or accesses to, IT Systems,
except for those that would not, in the aggregate, reasonably be expected to have a Material Adverse Effect. The Company
and its subsidiaries are presently in material compliance with all applicable laws or statutes and all judgments, orders, rules
and regulations of any court or arbitrator or governmental or regulatory authority, and contractual obligations relating to the
privacy and security of IT Systems, Confidential Data and to the protection of such IT Systems and Confidential Data from unauthorized
use, access, misappropriation or modification.
(xx)
Wallets. The Company and its Subsidiaries deposit substantially all of their crypto assets, including any Bitcoin mined,
in digital wallets held or operated by the Company or its Subsidiaries (the “Wallets”). There are no material
encumbrances on, or rights of any person to, the Wallets or the crypto assets contained in such Wallets. The Company and its Subsidiaries
have taken commercially reasonable steps to protect the Wallets and crypto assets, including by adopting security protocols to
prevent, detect and mitigate inappropriate or unauthorized access to the Wallets and crypto-assets.
(yy)
Miners. All Bitcoin miners owned or leased by the Company and its Subsidiaries (“Miners”) are owned
or rightfully possessed by, operated by and under the control of the Company and its Subsidiaries. There has been no failure,
breakdown or continued substandard performance of any Miners that has caused a material disruption or interruption in or to the
use of the Miners or the related operation of the business of the Company or any of its Subsidiaries. Except as would not reasonably
be expected to have, individually or in the aggregate, a Material Adverse Effect, the Miners are generally maintained and in good
working condition to perform all computing, information technology and data processing operations necessary for the operations
of the Company and its Subsidiaries. The Company and its Subsidiaries have taken commercially reasonable steps to: (i) protect
the Miners from contaminants, hacks and other malicious external or internal threats; (ii) ensure continuity of operations
with adequate energy supply and minimal uptime required; and (iii) provide for the remote-site back-up of data and information
critical to the Company and its Subsidiaries. The Company and its Subsidiaries have in place commercially reasonable disaster
recovery and business continuity plans and procedures.
(zz)
Bank Holding Company Act. Neither the Company nor any of its Subsidiaries is subject to the Bank Holding Company Act of
1956, as amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve System (the
“Federal Reserve”). Neither the Company nor any of its Subsidiaries owns or controls, directly or indirectly,
five percent or more of the outstanding shares of any class of voting securities or 25% or more of the total equity of a bank
or any entity that is subject to the BHCA and to regulation by the Federal Reserve. Neither the Company nor any of its Subsidiaries
exercises a controlling influence over the management or policies of a bank or any entity that is subject to the BHCA and to regulation
by the Federal Reserve.
(aaa)
U.S. Real Property Holding Corporation. The Company is not and has never been a U.S. real property holding corporation
within the meaning of Section 897 of the Internal Revenue Code of 1986, as amended, and the Company shall so certify upon the
Underwriters’ request.
(bbb)
Certificates. Any certificate signed by an officer of the Company and delivered to Univest or to counsel for Univest pursuant
to or in connection with this Agreement shall be deemed to be a representation and warranty by the Company, as applicable, to
Univest as to the matters set forth therein.
7. Covenants
of the Company. The Company covenants and agrees with Univest that:
(a) Registration
Statement Amendments. After the date of this Agreement and during any period in which a Prospectus relating to any Placement
Shares is required to be delivered by Univest under the Securities Act (including in circumstances where such requirement may
be satisfied pursuant to Rule 153 or Rule 172 under the Securities Act) (the “Prospectus Delivery Period”),
(i) the Company will notify Univest promptly of the time when any subsequent amendment to the Registration Statement, other than
documents incorporated by reference or any amendment to the Registration Statement, has been filed with the Commission and/or
has become effective or any subsequent supplement to the Prospectus (other than documents incorporated by reference therein) has
been filed and of any request by the Commission for any amendment or supplement to the Registration Statement or Prospectus or
for additional information, (ii) the Company will prepare and file with the Commission, promptly upon Univest’s request,
any amendments or supplements to the Registration Statement or Prospectus that, in Univest’s reasonable opinion, may be
necessary or advisable in connection with the distribution of the Placement Shares by Univest (provided, however, that the failure
of Univest to make such request shall not relieve the Company of any obligation or liability hereunder, or affect Univest’s
right to rely on the representations and warranties made by the Company in this Agreement), (iii) the Company will not file any
amendment or supplement to the Registration Statement or Prospectus (except for documents incorporated by reference therein) unless
a copy thereof has been submitted to Univest before the filing and Univest has not reasonably and in good faith objected thereto
within two (2) Business Days of receiving such copy (provided, however, that (A) the failure of Univest to make such objection
shall not relieve the Company of any obligation or liability hereunder, or affect Univest’s right to rely on the representations
and warranties made by the Company in this Agreement and (B) the Company has no obligation to provide Univest any advance copy
of such filing or to provide Univest an opportunity to object to such filing if such filing does not name Univest or does not
relate to the transactions contemplated by this Agreement) and the Company will furnish to Univest at the time of filing thereof
a copy of any document that upon filing is deemed to be incorporated by reference into the Registration Statement or Prospectus,
except for those documents available via XXXXX; and (iv) the Company will cause each amendment or supplement to the Prospectus
to be filed with the Commission as required pursuant to the applicable paragraph of Rule 424(b) of the Securities Act or, in the
case of any document to be incorporated therein by reference, to be filed with the Commission as required pursuant to the Exchange
Act, within the time period prescribed.
(b) Notice
of Commission Stop Orders. The Company will advise Univest, promptly after it receives notice or obtains knowledge thereof,
of the issuance or threatened issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement
or of any other order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, or of the suspension
of the qualification of the Placement Shares for offering or sale in any jurisdiction, or of the initiation or threatening of
any proceeding for any such purpose; and it will promptly use its commercially reasonable efforts to prevent the issuance of any
stop order or to obtain its withdrawal if such a stop order should be issued. The Company will advise Univest promptly after it
receives any request by the Commission for any amendments to the Registration Statement or any amendment or supplements to the
Prospectus or any Issuer Free Writing Prospectus or for additional information related to the offering of the Placement Shares
or for additional information related to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus.
(c) Continued
Compliance with Securities Laws; Subsequent Changes. During the Prospectus Delivery Period, the Company will use commercially
reasonable efforts to comply in all material respects with all requirements imposed upon it by the Securities Act, as from time
to time in force, and to file on or before their respective due dates all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14, 15(d) or any other provision of
or under the Exchange Act. If the Company has omitted any information from the Registration Statement pursuant to Rule 430B under
the Securities Act, it will use its best efforts to comply with the provisions of and make all requisite filings with the Commission
pursuant to said Rule 430B and to notify the Agent promptly of all such filings. If during the Prospectus Delivery Period any
event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances then existing,
not misleading, or if during such period it is necessary to amend or supplement the Registration Statement or Prospectus to comply
with the Securities Act, the Company will promptly notify Univest to suspend the offering of Placement Shares during such period
and the Company will promptly amend or supplement the Registration Statement or Prospectus (at the expense of the Company) so
as to correct such statement or omission or effect such compliance and will furnish Univest as many copies as Univest may reasonably
request of such amendment or supplement. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b),
430A and 430B, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder and
will confirm that any filings made by the Company under such Rule 424(b) were received in a timely manner by the Commission.
(d) Listing
of Placement Shares. During the Prospectus Delivery Period, the Company will use its commercially reasonable efforts to cause
the Placement Shares to be listed on the Exchange and to qualify the Placement Shares for sale under the securities laws of such
jurisdictions as Univest reasonably designates and to continue such qualifications in effect so long as required for the distribution
of the Placement Shares; provided, however, that the Company shall not be required in connection therewith to qualify as a foreign
corporation or dealer in securities or file a general consent to service of process in any jurisdiction. The Company will reserve
out of authorized and designated but unissued shares of Series A Preferred Stock and keep available at all times, free of pre-emptive
rights, the appropriate number of shares of Series A Preferred Stock that may be issued and sold hereunder.
(e) Delivery
of Registration Statement and Prospectus. The Company will furnish to Univest and its counsel (at the expense of the Company)
copies of the Registration Statement, the Prospectus (including all documents incorporated by reference therein) and all amendments
and supplements to the Registration Statement or Prospectus and any Issuer Free Writing Prospectus that are filed with the Commission
during the Prospectus Delivery Period (including all documents filed with the Commission during such period that are deemed to
be incorporated by reference therein), in each case as soon as reasonably practicable and in such quantities as Univest may from
time to time reasonably request and, at Univest’s request, will also furnish copies of the Prospectus to each exchange or
market on which sales of the Placement Shares may be made.
(f) Earnings
Statement. The Company will make generally available to its security holders as soon as practicable, but in any event not
later than 15 months after the end of the Company’s current fiscal quarter, an earnings statement covering a 12-month period
that satisfies the provisions of Section 11(a) and Rule 158 of the Securities Act.
(g) Use
of Proceeds. The Company will use the Net Proceeds as described in the Prospectus in the section entitled “Use of
Proceeds.”
(h) Notice
of Other Sales. Without the prior written consent of Univest, the Company will not, directly or indirectly, offer to sell,
sell, contract to sell, grant any option to sell or otherwise dispose of any Series A Preferred Stock (other than the Placement
Shares offered pursuant to this Agreement) or securities convertible into or exchangeable for Series A Preferred Stock, warrants
or any rights to purchase or acquire Series A Preferred Stock, or permit the registration under the Securities Act of any shares
of Series A Preferred Stock (other than the Placement Shares registered pursuant to this Agreement), during the period beginning
on the date on which any Placement Notice is delivered to Univest hereunder and ending on the second (2nd) 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, at any time during which a Placement Notice is pending and for two (2) Trading Days after the
last sale of Placement Shares under such Placement Notice, will not directly or indirectly in any other “at the market”
or continuous equity transaction offer to sell, sell, contract to sell, grant any option to sell or otherwise dispose of any shares
of Series A Preferred Stock (other than the Placement Shares offered pursuant to this Agreement) or securities convertible into
or exchangeable for Series A Preferred Stock, warrants or any rights to purchase or acquire Series A Preferred Stock prior to
the termination of this Agreement 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) Series A Preferred
Stock, options to purchase Series A Preferred Stock or stock awards or Series A Preferred Stock issuable upon the exercise of
options or vesting of stock awards, pursuant to any employee or director stock option or benefits plan, stock ownership plan or
dividend reinvestment plan (but not Series A Preferred Stock subject to a waiver to exceed plan limits in its dividend reinvestment
plan) of the Company existing on the date hereof; and (ii) Series A Preferred Stock issuable upon conversion of securities or
the exercise of warrants, options or other rights in effect or outstanding on the date hereof and disclosed in the Prospectus.
(i) Change
of Circumstances. The Company will, at any time during the pendency of a Placement Notice, advise Univest 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 Univest pursuant to this Agreement.
(j) Due
Diligence Cooperation. The Company will cooperate with any reasonable due diligence review conducted by Univest or its representatives
in connection with the transactions contemplated hereby, including, without limitation, providing information and making available
documents and senior corporate officers, during regular business hours and at the Company’s principal offices or such other
location mutually agreeable by the parties, as Univest may reasonably request.
(k) Required
Filings Relating to Placement of Placement Shares. The Company shall disclose, in its Quarterly Reports on Form 10-Q and in
its Annual Reports on Form 10-K to be filed by the Company with the Commission from time to time, the number of Placement Shares
sold through the Agent under this Agreement, and the net proceeds to the Company from the sale of the Placement Shares pursuant
to this Agreement during the relevant quarter or, in the case of an Annual Report on Form 10-K, during the fiscal year covered
by such Annual Report and the fourth quarter of such fiscal year. The Company agrees that on such dates as the Securities Act
shall require, the Company will (i) file a prospectus supplement with the Commission under the applicable paragraph of Rule 424(b)
under the Securities Act, which prospectus supplement will set forth, within the relevant period, the amount of Placement Shares
sold through Univest, the Net Proceeds to the Company and the maximum compensation payable by the Company to Univest with respect
to such Placement Shares, and (ii) deliver such number of copies of each such prospectus supplement to each exchange or market
on which such sales were effected as may be required by the rules or regulations of such exchange or market.
(l) Representation
Dates; Certificate. On the date of this Agreement and each time during the term of this Agreement 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;
(ii)
files an Annual Report on Form 10-K under the Exchange Act (including any Form 10-K/A containing restated financial statements
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 audited financial information (other than information “furnished”
pursuant to Items 2.02 or 7.01 of Form 8-K) under the Exchange Act; and
at
any other time reasonably requested by Univest (each date of filing of one or more of the documents referred to in clauses (i)
through (iv) above and any other time reasonably requested by Univest shall be a “Representation Date”), the
Company shall furnish Univest (but in the case of clause (iv) above only if Univest reasonably determines that the information
contained in such Form 8-K is material) with a certificate, in the form attached hereto as Exhibit 7(l). The requirement
to provide a certificate under this Section 7(l) shall be automatically waived for any Representation Date occurring at a time
at which no Placement Notice is pending, which waiver shall continue until the date the Company delivers a Placement Notice hereunder
(which for such calendar quarter shall be considered a Representation Date); provided, however, that such waiver shall not apply
for any Representation Date on which the Company files its Annual Report on Form 10-K. Notwithstanding the foregoing, if the Company
subsequently decides to sell Placement Shares following a Representation Date when the Company relied on such waiver and did not
provide Univest with a certificate under this Section 7(l), then before the Company delivers the Placement Notice or Univest sells
any Placement Shares, the Company shall provide Univest with a certificate, in the form attached hereto as Exhibit 7(l),
dated the date of the Placement Notice.
(m) Legal
Opinions. On or prior to the date of the first Placement Notice given hereunder and on or prior to each Representation Date,
the Company shall cause to be furnished to Univest (i) the favorable opinion of Xxxxxxxx & Worcester LLP, special counsel
to the Company (“Company Counsel”), and (ii) the favorable opinion of Xxxxxxx Xxxxx & Xxxxxxx, Nevada special
counsel to the Company (“Special Nevada Counsel”), each in form and substance reasonably satisfactory to Univest;
provided, however, that in lieu of such opinions for subsequent Representation Dates, such counsels to the Company may furnish
Univest with a letter to the effect that Univest may rely on a prior opinion delivered under this Section 7(m) to the same extent
as if it were dated the date of such letter (except that statements in such prior opinion shall be deemed to relate to the Registration
Statement and the Prospectus as amended or supplemented at such Representation Date).
(n) Auditor
Comfort Letter. On or prior to the date the first Placement Notice is given hereunder and on each Representation Date thereafter,
the Company shall cause its independent accountants to furnish Univest letters (the “Comfort Letters”), dated
the date the Comfort Letter is delivered, which shall meet the requirements set forth in this Section 7(n). The Comfort Letter
from the Company’s independent accountants shall be in a form and substance reasonably satisfactory to Univest, (i) confirming
that they are an independent registered public accounting firm within the meaning of the Securities Act and the rules of the Public
Company Accounting Oversight Board, (ii) stating, as of such date, the conclusions and findings of such firm with respect to the
financial information and other matters ordinarily covered by accountants’ “comfort letters” to Univest in connection
with registered public offerings (the first such letter, the “Initial Comfort Letter”) and (iii) updating the
Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such
date and modified as necessary to relate to the Registration Statement and the Prospectus, as amended and supplemented to the
date of such letter.
(o) [Intentionally
Omitted].
(p) Officer’s
Certificate. On or prior to the date the first Placement Notice is given hereunder, Univest shall have received a certificate,
signed on behalf of the Company by its Chief Executive Officer or Chief Financial Officer, certifying as to (i) the certificate
of incorporation of the Company (as the same may be amended or restated from time to time), (ii) the bylaws of the Company (as
the same may be amended or restated from time to time), (iii) the resolutions of the Board of Directors of the Company (or a 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.
(q) Market
Activities. The Company will not, directly or indirectly, (i) take any action designed to cause or result in, or that constitutes
or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Series A Preferred Stock or (ii) sell, bid for, or purchase shares of Series A Preferred
Stock in violation of Regulation M, or pay anyone any compensation for soliciting purchases of the Placement Shares other than
Univest.
(r) Investment
Company Act. The Company will conduct its affairs in such a manner so as to reasonably ensure that neither it nor any of its
Subsidiaries will be or become, at any time prior to the termination of this Agreement, an “investment company,” as
such term under the Investment Company Act.
(s) Xxxxxxxx-Xxxxx
Act. 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 GAAP 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) that
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 Xxxxxxxx-Xxxxx 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.
(t) Regulation
M. If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the
Exchange Act are not satisfied with respect to the Placement Shares, it shall promptly notify the other party and sales of the
Placement Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment
of each party.
8. [Intentionally
Omitted].
9. Payment
of Expenses. The Company will pay all costs, expenses and fees incident to the performance of its obligations under this Agreement,
whether or not the transactions contemplated hereby are consummated or this Agreement is terminated, including (i) the preparation
and filing, including any fees required by the Commission, of the Registration Statement (including financial statements and exhibits)
as originally filed and of each amendment and supplement thereto and each Issuer Free Writing Prospectus, (ii) the preparation,
issuance and delivery of the certificates, if any, for the Placement Shares to Univest, 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 Univest, (iii) the preparation, printing and delivery to Univest of this Agreement and such other documents as may be
required in connection with the offering, purchase, sale, issuance or delivery of the Placement Shares, (iv) the fees and disbursements
of the counsel, accountants and other advisors to the Company, (v) the reasonable documented out-of-pocket costs and expenses
of Univest incurred in connection with negotiating and executing this Agreement (including the reasonable fees and disbursements
of counsel to Univest) up to a maximum amount of $40,000 in connection with the execution of this Agreement and $3,000 in connection
with each Representation Date, (vi) the fees and expenses of the transfer agent and registrar for the Series A Preferred Stock,
(vii) the filing fees incident to, and the reasonable fees and disbursements of counsel to Univest in connection with, the review
by FINRA of the terms of the sale of the Placement Shares, (viii) the fees and expenses incurred by the Company in connection
with the listing of the Placement Shares on the Exchange, and (ix) the printing and delivery to Univest of copies of the Prospectus
and any amendments or supplements thereto and any costs associated with electronic delivery of any of the foregoing by Univest
to investors.
10. Conditions
to Univest’s Obligations. The obligations of Univest 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 Univest of a due diligence review satisfactory to it in its reasonable judgment,
and to the continuing satisfaction (or waiver by Univest in its sole discretion) of the following additional conditions:
(a) Registration
Statement Effective. The Registration Statement shall have become effective and shall be available for the sale of all Placement
Shares contemplated to be issued by any Placement Notice (as amended by a corresponding Company Acceptance, as applicable).
(b) No
Material Notices. None of the following events shall have occurred and be continuing: (i) receipt by the Company or any of
its Subsidiaries of any request for additional information from the Commission or any other federal or state governmental authority
during the period of effectiveness of the Registration Statement, the response to which would require any post-effective amendments
or supplements to the Registration Statement or the Prospectus; (ii) the issuance by the Commission or any other federal or state
governmental authority of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings
for that purpose; (iii) receipt by the Company of any notification with respect to the suspension of the qualification or exemption
from qualification of any of the Placement Shares for sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose; or (iv) any event that makes any material statement made in the Registration Statement or the Prospectus, or
any Issuer Free Writing Prospectus, or any material document incorporated or deemed to be incorporated therein by reference untrue
in any material respect or that requires the making of any changes in the Registration Statement, the Prospectus, any Issuer Free
Writing Prospectus, or such documents so that, in the case of the Registration Statement, it will not contain any materially untrue
statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements
therein not misleading and, that in the case of the Prospectus and any Issuer Free Writing Prospectus, it will not contain any
materially untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) No
Misstatement or Material Omission. Univest shall not have advised the Company that the Registration Statement or Prospectus,
or any Issuer Free Writing Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact that in Univest’s
reasonable opinion is material, or omits to state a fact that in Univest’s opinion is material and is required to be stated
therein or is necessary to make the statements therein not misleading.
(d) Material
Changes. Except as contemplated in the Registration Statement and the Prospectus, or disclosed in the Company’s reports
filed with the Commission, there shall not have been any material adverse change, on a consolidated basis, in the authorized capital
stock of the Company or any Material Adverse Effect, or any development in the business or affairs of the Company that could reasonably
be expected to cause a Material Adverse Effect.
(e) Legal
Opinion. Univest shall have received the opinion of Company Counsel and Special Nevada Counsel required to be delivered pursuant
to Section 7(m) on or before the date on which delivery of such opinion is required pursuant to Section 7(m).
(f) Comfort
Letters. Univest shall have received the Auditor Comfort Letter required to be delivered pursuant to Section 7(n),on
or before the date on which such delivery of such letters is required pursuant to Section 7(n).
(g) Representation
Certificate. Univest shall have received the certificate required to be delivered pursuant to Section 7(l) on or before the
date on which delivery of such certificate is required pursuant to Section 7(l).
(h) No
Suspension. Trading in the Series A Preferred Stock shall not have been suspended on the Exchange and the Series A Preferred
Stock shall not have been delisted from the Exchange.
(i) Officer’s
Certificate. Univest shall have received a certificate signed on behalf of the Company by its Chief Executive Officer or Chief
Financial Officer required to be delivered pursuant to Section 7(p) on or before the date on which delivery of such certificate
is required pursuant to Section 7(p).
(j) Other
Materials. On each date on which the Company is required to deliver a certificate pursuant to Section 7(l), the Company shall
have furnished to Univest such appropriate further information, certificates and documents of the Company as Univest may have
reasonably requested in writing prior to such date and which are usually and customarily furnished by an issuer of securities
in connection with the offering contemplated hereunder. The Company will furnish Univest with such conformed copies of such certificates
and documents as Univest shall reasonably request.
(k) Securities
Act Filings Made. All filings with the Commission required by Rule 424 under the Securities Act to have been filed prior to
the issuance of any Placement Notice hereunder shall have been made within the applicable time period prescribed for such filing
by Rule 424.
(l) Approval
for Listing. The Placement Shares shall either have been approved for listing on the Exchange, subject only to notice of issuance,
or the Company shall have filed an application for listing of the Placement Shares on the Exchange at, or prior to, the issuance
of any Placement Notice.
(m) No
Termination Event. There shall not have occurred any event that would permit Univest to terminate this Agreement pursuant
to Section 13(a).
(n) No
Objection. Prior to the issuance of any Placement Notice, FINRA shall have confirmed in writing that it has no objection with
respect to the fairness and reasonableness of the compensation arrangements hereunder.
11. Indemnification
and Contribution.
(a) Company
Indemnification. The Company agrees to indemnify and hold harmless Univest, its affiliates, its partners, members, directors,
officers, employees and selling agents and each person, if any, who controls Univest within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act as follows:
(i)
against any and all loss, liability, claim, damage and expense whatsoever, as incurred, joint or several, arising out of or based
upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment
thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make
the statements therein not misleading, or arising out of any untrue statement or alleged untrue statement of a material fact included
in any related Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto), or the omission or alleged
omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii)
against any and all loss, liability, claim, damage and expense whatsoever, as incurred, joint or several, to the extent of the
aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue
statement or omission; provided that (subject to Section 11(d) below) any such settlement is effected with the written consent
of the Company, which consent shall not unreasonably be delayed or withheld; and
(iii)
against any and all expense whatsoever, as incurred (including the reasonable fees and disbursements of counsel), reasonably incurred
in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged
untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above, provided, however, that
the Company’s indemnity obligations under this Section 11(a) shall not apply to any loss, liability, claim, damage or expense
to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made solely in reliance
upon and in conformity with the Agent’s Information.
(b) Univest
Indemnification. Univest agrees to indemnify and hold harmless the Company and its directors and each officer of the Company
who signed the Registration Statement, and each person, if any, who (i) controls the Company within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act or (ii) is controlled by or is under common control with the Company against
any and all loss, liability, claim, damage and expense described in the indemnity contained in Section 11(a), as incurred, but
only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement
(or any amendments thereto) or any Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with the Agent’s Information.
(c) Procedure.
Any party that proposes to assert the right to be indemnified under this Section 11 will, promptly after receipt of notice of
commencement of any action against such party in respect of which a claim is to be made against an indemnifying party or parties
under this Section 11, notify each such indemnifying party of the commencement of such action, enclosing a copy of all papers
served, but the omission to so notify such indemnifying party will not relieve the indemnifying party from (i) any liability that
it might have to any indemnified party otherwise than under this Section 11 and (ii) any liability that it may have to any indemnified
party under the foregoing provision of this Section 11 unless, and only to the extent that, such omission results in the forfeiture
or material impairment of 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, and after notice from the indemnifying party to
the indemnified party of its election to assume the defense, the indemnifying party will not be liable to the indemnified party
for any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred
by the indemnified party in connection with the defense. The indemnified party will have the right to employ its own counsel in
any such action, but the fees, expenses and other charges of such counsel will be at the expense of such indemnified party unless
(1) the employment of counsel by the indemnified party has been authorized in writing by the indemnifying party, (2) the indemnified
party has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other indemnified
parties that are materially different from or in addition to those available to the indemnifying party, (3) a conflict or potential
conflict exists (based on advice of counsel to the indemnified party) between the indemnified party and the indemnifying party
(in which case the indemnifying party will not have the right to direct the defense of such action on behalf of the indemnified
party) or (4) the indemnifying party has not in fact employed counsel to assume the defense of such action within a reasonable
time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other
charges of counsel will be at the expense of the indemnifying party or parties. It is understood that the indemnifying party or
parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable
fees, disbursements and other charges of more than one separate firm admitted to practice in such jurisdiction at any one time
for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the indemnifying
party promptly after the indemnifying party receives a written invoice relating to fees, disbursements and other charges in reasonable
detail. An indemnifying party will not, in any event, be liable for any settlement of any action or claim effected without its
written consent. No indemnifying party shall, without the prior written consent of each indemnified party, settle or compromise
or consent to the entry of any judgment in any pending or threatened claim, action or proceeding relating to the matters contemplated
by this Section 11 (whether or not any indemnified party is a party thereto), unless such settlement, compromise or consent (1)
includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation,
proceeding or claim and (2) does not include a statement as to or an admission of fault, culpability or a failure to act by or
on behalf of any indemnified party.
(d) Contribution.
In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in the foregoing
paragraphs of this Section 11 is applicable in accordance with its terms but for any reason is held to be unavailable from the
Company or Univest, the Company and Univest will contribute to the total losses, claims, liabilities, expenses and damages (including
any investigative, legal and other expenses reasonably incurred in connection with, and any amount paid in settlement of, any
action, suit or proceeding or any claim asserted, but after deducting any contribution received by the Company from persons other
than Univest, such as persons who control the Company within the meaning of the Securities Act, officers of the Company who signed
the Registration Statement and directors of the Company, who also may be liable for contribution) to which the Company and Univest
may be subject in such proportion as shall be appropriate to reflect the relative benefits received by the Company on the one
hand and Univest on the other hand. The relative benefits received by the Company on the one hand and Univest 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 Univest (before deducting expenses) from the sale
of Placement Shares on behalf of the Company. If, but only if, the allocation provided by the foregoing sentence is not permitted
by applicable law, the allocation of contribution shall be made in such proportion as is appropriate to reflect not only the relative
benefits referred to in the foregoing sentence but also the relative fault of the Company, on the one hand, and Univest, on the
other hand, with respect to the statements or omission that resulted in such loss, claim, liability, expense or damage, or action
in respect thereof, as well as any other relevant equitable considerations with respect to such offering. Such relative fault
shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information supplied by the Company or Univest, 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 Univest agree that it would not be just and equitable if contributions pursuant to this Section 11(d) were to
be determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as a result of the loss, claim, liability, expense, or
damage, or action in respect thereof, referred to above in this Section 11(d) shall be deemed to include, for the purpose of this
Section 11(d), any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending
any such action or claim to the extent consistent with Section 11(c) hereof. Notwithstanding the foregoing provisions of this
Section 11(d), Univest shall not be required to contribute any amount in excess of the commissions received by it under this Agreement
and no person found guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) will be
entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section
11(d), any person who controls a party to this Agreement within the meaning of the Securities Act, and any officers, directors,
partners, employees or agents of Univest, will have the same rights to contribution as that party, and each officer and director
of the Company who signed the Registration Statement will have the same rights to contribution as the Company, subject in each
case to the provisions hereof. Any party entitled to contribution, promptly after receipt of notice of commencement of any action
against such party in respect of which a claim for contribution may be made under this Section 11(d), will notify any such party
or parties from whom contribution may be sought, but the omission to so notify will not relieve that party or parties from whom
contribution may be sought from any other obligation it or they may have under this Section 11(d) except to the extent that the
failure to so notify such other party materially prejudiced the rights or defenses of the party from whom contribution is sought.
Except for a settlement entered into pursuant to the last sentence of Section 11(c) hereof, no party will be liable for contribution
with respect to any action or claim settled without its written consent if such consent is required pursuant to Section 11(c)
hereof.
12. Representations
and Agreements to Survive Delivery. The indemnity and contribution agreements contained in Section 11 of this Agreement and
all representations and warranties of the Company and Univest herein or in certificates delivered pursuant hereto shall survive,
as of their respective dates, regardless of (i) any investigation made by or on behalf of Univest, any controlling persons, or
the Company (or any of their respective officers, directors or controlling persons), (ii) delivery and acceptance of the Placement
Shares and payment therefor or (iii) any termination of this Agreement.
13. Termination.
(a)
Univest may terminate this Agreement, by notice to the Company, as hereinafter specified at any time (1) if there has been, since
the time of execution of this Agreement or since the date as of which information is given in the Prospectus, any Material Adverse
Effect, or any development that has occurred that is reasonably likely to have a Material Adverse Effect has occurred or in the
sole judgment of Univest makes it impractical or inadvisable to market the Placement Shares or to enforce contracts for the sale
of the Placement Shares, (2) if there has occurred any material adverse change in the financial markets in the United States or
the international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change
or development involving a prospective change in national or international political, financial or economic conditions, in each
case the effect of which is such as to make it, in the sole judgment of Univest, impracticable or inadvisable to market the Placement
Shares or to enforce contracts for the sale of the Placement Shares, (3) if trading in the Series A Preferred Stock has been suspended
or limited by the Commission or the Exchange, or if trading generally on the Exchange has been suspended or limited, or minimum
prices for trading have been fixed on the Exchange, (4) if any suspension of trading of any securities of the Company on any exchange
or in the over-the-counter market shall have occurred and be continuing for at least ten (10) Trading Days, (5) if a major disruption
of securities settlements or clearance services in the United States shall have occurred and be continuing, or (6) if a banking
moratorium has been declared by either U.S. federal or New York authorities. Any such termination shall be without liability of
any party to any other party except that the provisions of Section 6 (Representations and Warranties of the Company), Section
9 (Payment of Expenses), Section 11 (Indemnification and Contribution), Section 12 (Representations and Agreements to Survive
Delivery), Section 18 (Governing Law and Time; Waiver of Jury Trial), Section 19 (Consent to Jurisdiction) and Section 24 (Absence
of Fiduciary Relationship) hereof (the provisions of each such section, a “Surviving Term,” and collectively,
the “Surviving Terms”) shall remain in full force and effect notwithstanding such termination. If Univest elects
to terminate this Agreement as provided in this Section 13(a), Univest shall provide five (5) days’ notice to the Company
in accordance with the terms of Section 14 hereof.
(b)
The Company shall have the right, by giving five (5) days’ notice as hereinafter specified to terminate this Agreement in
its sole discretion at any time after the date of this Agreement. Any such termination shall be without liability of any party
to any other party except that the Surviving Terms shall remain in full force and effect notwithstanding such termination.
(c)
Univest shall have the right, by giving five (5) days’ notice as hereinafter specified to terminate this Agreement in its
sole discretion at any time after the date of this Agreement. Any such termination shall be without liability of any party to
any other party except that the Surviving Terms shall remain in full force and effect notwithstanding such termination.
(d)
[Intentionally Omitted].
(e)
This Agreement shall remain in full force and effect unless terminated pursuant to Sections 13(a), (b), (c), or (d) above or otherwise
by mutual agreement of the parties; provided, however, that any such termination by mutual agreement shall in all cases be deemed
to provide that the Surviving Terms shall remain in full force and effect. Upon termination of this Agreement, the Company shall
not have any liability to Univest for any discount, commission or other compensation with respect to any Placement Shares not
otherwise sold by Univest under this Agreement.
(f)
Any termination of this Agreement shall be effective on the date specified in such notice of termination; provided, however, that
such termination shall not be effective until the close of business on the date of receipt of such notice by Univest or the Company,
as the case may be. If such termination shall occur prior to the Settlement Date for any sale of Placement Shares, such Placement
Shares shall settle in accordance with the provisions of this Agreement.
14. Notices.
All notices or other communications required or permitted to be given by any party to any other party pursuant to the terms of
this Agreement shall be in writing, unless otherwise specified, and if sent to Univest, shall be delivered to:
Univest Securities, LLC
00 Xxxxxxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attention:
Xxxxx Xxx and Xxxxxxx Xxxxxxxx
Telephone:
[Redacted]
Email: [Redacted]
Fax No.:
[Redacted]
with
a copy to:
Blank
Rome LLP
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx, XX 00000
Attention:
Xxxxxxx X. Xxxx, Esq.
Telephone:
(000) 000-0000
Email:
xxxxxxx.xxxx@xxxxxxxxx.xxx
Fax
No.: (000) 000-0000
and
if to the Company, shall be delivered to:
Soluna
Holdings, Inc.
000 Xxxxxxxxxx Xxxxxx Xxxxxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx
Telephone: [Redacted]
Email: [Redacted]
Fax No.: [Redacted]
with
a copy to:
Xxxxxxxx
& Worcester LLP
0000
Xxxxxxxx
Xxx
Xxxx, XX 00000
Attention:
Xxxxx X. Xxxxxxxxx and Xxxxx X. Xxxxxxxxxx
Telephone:
(000) 000-0000
Email:
xxxxxxxxxx@xxxxxxxxxxx.xxx; xxxxxxxxxxx@xxxxxxxxxxx.xxx
Fax
No.: (000) 000-0000
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 or e-mail 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 the date of mailing
if sent by a U.S. nationally-recognized overnight courier and (iii) on the Business Day actually received if deposited in the
U.S. mail (certified or registered mail, return receipt requested, postage prepaid).
An
electronic communication (“Electronic Notice”) shall be deemed written notice for purposes of this Section
14 if sent to the electronic mail address specified by the receiving party under separate cover. Electronic Notice shall be deemed
received at the time the party sending Electronic Notice receives confirmation of receipt by the receiving party. Any party receiving
Electronic Notice may request and shall be entitled to receive the notice on paper, in a nonelectronic form (“Nonelectronic
Notice”) which shall be sent to the requesting party within ten (10) days of receipt of the written request for Nonelectronic
Notice.
15. Successors
and Assigns. This Agreement shall inure to the benefit of and be binding upon the Company and Univest and their respective
successors and permitted assigns and the affiliates, controlling persons, officers and directors referred to in Section 11 hereof.
References to any of the parties contained in this Agreement shall be deemed to include the successors and permitted assigns of
such party. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto
or their respective successors and permitted assigns any rights, remedies, obligations or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement. Neither party may assign its rights or obligations under this Agreement
without the prior written consent of the other party. No purchaser of Placement Shares from Univest shall be deemed to be a successor
by reason of such purchase.
16. Adjustments
for Stock Splits. The parties acknowledge and agree that all share-related numbers contained in this Agreement shall be adjusted
to take into account any share consolidation, stock split, stock dividend, corporate domestication or similar event effected with
respect to the Placement Shares.
17. Entire
Agreement; Amendment; Severability. This Agreement (including all schedules and exhibits attached hereto and Placement Notices
issued pursuant hereto) constitutes the entire agreement of the parties with respect to the subject matter hereof and 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 Univest. In the event that any one or more of the provisions contained herein, or the application thereof in
any circumstance, is held invalid, illegal or unenforceable as written by a court of competent jurisdiction, then such provision
shall be given full force and effect to the fullest possible extent that it is valid, legal and enforceable, and the remainder
of the terms and provisions herein shall be construed as if such invalid, illegal or unenforceable term or provision was not contained
herein, but only to the extent that giving effect to such provision and the remainder of the terms and provisions hereof shall
be in accordance with the intent of the parties as reflected in this Agreement.
18. GOVERNING
LAW AND TIME; WAIVER OF JURY TRIAL. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME. THE COMPANY
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
19. CONSENT
TO JURISDICTION. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING
IN THE CITY OF NEW YORK, BOROUGH OF MANHATTAN, FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH ANY TRANSACTION
CONTEMPLATED HEREBY, AND HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT
IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF ANY SUCH COURT, THAT SUCH SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT
FORUM OR THAT THE VENUE OF SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER. EACH PARTY HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE
OF PROCESS AND CONSENTS TO PROCESS BEING SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY THEREOF (CERTIFIED OR
REGISTERED MAIL, RETURN RECEIPT REQUESTED) TO SUCH PARTY AT THE ADDRESS IN EFFECT FOR NOTICES TO IT UNDER THIS AGREEMENT AND AGREES
THAT SUCH SERVICE SHALL CONSTITUTE GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING CONTAINED HEREIN SHALL BE
DEEMED TO LIMIT IN ANY WAY ANY RIGHT TO SERVE PROCESS IN ANY MANNER PERMITTED BY LAW.
20. Use
of Information. Univest may not use any information gained in connection with this Agreement and the transactions contemplated
by this Agreement, including due diligence, to advise any party with respect to transactions not expressly approved by the Company.
21. Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument. Delivery of an executed Agreement by one party to the other may be made by facsimile
transmission or by electronic delivery of a portable document format (PDF) file (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, e.g., xxx.xxxxxxxx.xxx).
22. Effect
of Headings. The section, schedule and exhibit headings herein are for convenience only and shall not affect the construction
hereof.
23. Permitted
Free Writing Prospectuses. The Company represents, warrants and agrees that, unless it obtains the prior written consent of
Univest (such consent not to be unreasonably withheld, conditioned or delayed), and Univest represents, warrants and agrees that,
unless it obtains the prior written consent of the Company (such consent not to be unreasonably withheld, conditioned or delayed),
it has not made and will not make any offer relating to the Placement Shares that would constitute an Issuer Free Writing Prospectus,
or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405, required to be filed with
the Commission. Any such free writing prospectus consented to by Univest or by the Company, as the case may be, is hereinafter
referred to as a “Permitted Free Writing Prospectus.” The Company represents and warrants that it has treated
and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined
in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus,
including timely filing with the Commission where required, legending and record keeping. For the purposes of clarity, the parties
hereto agree that all free writing prospectuses, if any, listed in Exhibit 23 hereto are Permitted Free Writing
Prospectuses.
24. Absence
of Fiduciary Relationship. The Company acknowledges and agrees that:
(a)
Univest is acting solely as agent in connection with the public offering of the Placement Shares and in connection with each transaction
contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between
the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party,
on the one hand, and Univest, on the other hand, has been or will be created in respect of any of the transactions contemplated
by this Agreement, irrespective of whether or not Univest has advised or is advising the Company on other matters, and Univest
has no obligation to the Company with respect to the transactions contemplated by this Agreement except the obligations expressly
set forth in this Agreement;
(b)
it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions
contemplated by this Agreement;
(c)
Univest has not provided any legal, accounting, regulatory or tax advice with respect to the transactions contemplated by this
Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d)
it is aware that Univest and its affiliates are engaged in a broad range of transactions which may involve interests that differ
from those of the Company and Univest has no obligation to disclose such interests and transactions to the Company by virtue of
any fiduciary, advisory or agency relationship or otherwise; and
(e)
it waives, to the fullest extent permitted by law, any claims it may have against Univest for breach of fiduciary duty or alleged
breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that Univest shall not
have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim
or to any person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of the
Company, other than in respect of Univest’s obligations under this Agreement and to keep information provided by the Company
to Univest and Univest’s counsel confidential to the extent not otherwise publicly-available.
25. Definitions.
As used in this Agreement, the following terms have the respective meanings set forth below:
“Applicable
Time” means (i) each Representation Date and (ii) the time of each sale of any Placement Shares pursuant to this Agreement.
“Issuer
Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433, relating to
the Placement Shares that (1) is required to be filed with the Commission by the Company, (2) is a “road show” that
is a “written communication” within the meaning of Rule 433(d)(8)(i) whether or not required to be filed with the
Commission, or (3) is exempt from filing pursuant to Rule 433(d)(5)(i) because it contains a description of the Placement Shares
or of the offering that does not reflect the final terms, 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) under the Securities
Act Regulations.
“Rule
153,” “Rule 164,” “Rule 172,” “Rule 405,” “Rule 415,”
“Rule 424,” “Rule 424(b),” “Rule 430B,” and “Rule 433”
refer to such rules under the Securities Act Regulations.
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.
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 XXXXX; 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 XXXXX; 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 Univest outside
of the United States.
[Remainder
of page intentionally left blank]
If
the foregoing correctly sets forth the understanding between the Company and Univest, please so indicate in the space provided
below for that purpose, whereupon this letter shall constitute a binding agreement between the Company and Univest.
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Very truly yours, |
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SOLUNA HOLDINGS, INC. |
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By: |
/s/ Xxxxxxx
Xxxxxx |
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Name: |
Xxxxxxx
Xxxxxx |
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Title: |
Chief Financial Officer |
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ACCEPTED as of the date first-above
written: |
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UNIVEST SECURITIES, LLC |
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By: |
/s/
Xxxxx Xxx |
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Name: |
Xxxxx Xxx |
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Title: |
Chief Executive Officer |