Exhibit
1.01
BOXLIGHT
CORPORATION
UNDERWRITING
AGREEMENT
July
28, 2020
Maxim
Group LLC
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
As
Representative of the Underwriters
named
on Schedule A hereto
Ladies
and Gentlemen:
Boxlight
Corporation, a Nevada corporation (the “Company”), proposes, subject to the terms and conditions stated herein,
to issue and sell an aggregate of 15,000,000 shares (“Firm Shares”) of the Company’s common stock, $0.0001
par value per share (“Shares”) to the several underwriters (such underwriters, for whom Maxim Group LLC (“Maxim”
or the “Representative”) is acting as representative, the “Underwriters” and each an “Underwriter”).
The Company has also agreed to grant to the Representative on behalf of the Underwriters an option (the “Option”)
to purchase up to an additional 2,250,000 Shares (the “Option Shares” and, together with the Firm Shares, the
“Securities”) on the terms set forth in Section 1(b) hereof. The offering of the Securities is hereinafter
called the “Offering”.
The
Company confirms as follows its agreement with each of the Underwriters:
1. Agreement
to Sell and Purchase.
(a) Purchase
of Firm Shares. On the basis of the representations, warranties and agreements of the Company contained herein and subject
to all the terms and conditions of this Agreement, the Company agrees to sell to the Underwriters, severally and not jointly,
and the Underwriters, severally and not jointly, agree to purchase from the Company, the Firm Shares at a purchase price (the
“Purchase Price”) (prior to discount and commissions) of $2.00 for one Firm Share (or $1.86 for one Firm Share
net of discount and commissions).
(b) Purchase
of Option Shares. Subject to all the terms and conditions of this Agreement, the Company grants to the Representative on behalf
of the Underwriters the Option to purchase, severally and not jointly, all or less than all of the Option Shares. The purchase
price (net of discount and commissions) to be paid for each Option Share will be the same Purchase Price (net of discount and
commissions) allocated to the Firm Shares. The Option may be exercised in whole or in part at any time on or before the 45th day
after the date of this Agreement, upon written notice (the “Option Notice”) by the Representative to the Company
no later than 12:00 noon, New York City time, at least two and no more than five business days before the date specified for closing
in the Option Notice (the “Option Closing Date”) setting forth the aggregate number of Option Shares to be
purchased and the time and date for such purchase. Upon exercise of the Option, the Company will become obligated to convey to
the Underwriters, and the Underwriters will become obligated to purchase, in each case subject to the terms and conditions set
forth herein, the number of Option Shares specified in the Option Notice. If any Option Shares are to be purchased, each Underwriter
agrees, severally and not jointly, to purchase the number of Option Shares (as adjusted by the Representative in such manner as
it deems advisable to avoid fractional securities) that bears the same proportion to the number of Firm Shares to be purchased
by it as set forth on Schedule A opposite such Underwriter’s name as the total number of Option Shares to be purchased
bears to the total number of Firm Shares.
2. Delivery
and Payment.
(a) Closing.
Delivery of the Firm Shares shall be made to the Representative through the facilities of the Depository Trust Company (“DTC”)
for the respective accounts of the Underwriters against payment of the Purchase Price by wire transfer of immediately available
funds to the order of the Company. Such payment shall be made at 10:00 a.m., New York City time, on the third business day (the
fourth business day, should the Offering be priced after 4:00 p.m., New York City Time) after the date of this Agreement or at
such time on such other date, not later than ten business days after such date, as may be agreed upon by the Company and the Representative
(such date is hereinafter referred to as the “Closing Date”).
(b) Option
Closing. To the extent the Option is exercised, delivery of the Option Shares against payment by the Underwriters of the purchase
price for such securities (in the manner and at the location specified above) shall take place at the time and date (which may
be the Closing Date, but not earlier than the Closing Date) specified in the Option Notice.
(c) Electronic
Transfer. Electronic transfer of the Securities shall be made at the time of purchase in such names and in such denominations
as the Representative shall specify.
(d) Tax
Stamps. The cost of original issue tax stamps, if any, in connection with the issuance and delivery of the Securities by the
Company to the Underwriters shall be borne by the Company. The Company shall pay and hold each Underwriter and any subsequent
holder of the Securities harmless from any and all liabilities with respect to or resulting from any failure or delay in paying
United States federal and state and foreign stamp and other transfer taxes, if any, which may be payable or determined to be payable
in connection with the original issuance, sale and delivery to such Underwriter of the Securities.
3. Representations
and Warranties of the Company. The Company represents and warrants to, and agrees with, the several Underwriters, as of the
date hereof and as of the Closing Date and as of each Option Closing Date, except as otherwise indicated, as follows:
(a) Compliance
with Registration Requirements. The Company has prepared and filed with the Securities and Exchange Commission (the “Commission”)
a registration statement on Form S-3 (File No. 333-239939) under the Securities Act of 1933, as amended (the “Act”)
and the rules and regulations of the Commission thereunder (the “Rules and Regulations”), and such amendments
to such registration statement (including post effective amendments) as may have been required to the date of this Agreement and
a preliminary prospectus supplement or “red xxxxxxx” pursuant to Rule 424(b) under the Securities Act. Such registration
statement, as amended (including any post effective amendments), has been declared effective by the Commission. Such registration
statement, including amendments thereto (including post effective amendments thereto) as of the latest time of effectiveness thereof
(the “Effective Time”), the exhibits and any schedules thereto and the documents and information otherwise
deemed to be a part thereof or included therein by the Securities Act or otherwise pursuant to the Rules and Regulations, is herein
called the “Registration Statement.” If the Company has filed or files an abbreviated registration statement
pursuant to Rule 462(b) under the Securities Act (the “Rule 462 Registration Statement”), then any reference
herein to the term Registration Statement shall include such Rule 462 Registration Statement.
(b) The
Company is filing with the Commission pursuant to Rule 424 under the Securities Act a final prospectus supplement relating to
the Securities to a form of prospectus included in the Registration Statement. The form of prospectus included in the Registration
Statement at the time it was declared effective, as it may have been amended, modified or supplemented and filed with the Commission
after such effective date and prior to the date hereof pursuant to Rule 424(b)(3), is hereinafter called the “Base Prospectus,”
and such final prospectus supplement, as filed, along with the Base Prospectus, is hereinafter called the “Final Prospectus.”
Such Final Prospectus and any preliminary prospectus supplement or “red xxxxxxx” relating to the Securities in the
form in which they shall be filed with the Commission pursuant to Rule 424(b) under the Securities Act (including the Base Prospectus
as so supplemented) is hereinafter called a “Prospectus.”
(c) For
purposes of this Agreement, all references to the Registration Statement, the Rule 462 Registration Statement, the Base Prospectus,
the Final Prospectus, 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 its Electronic Data Gathering, Analysis and Retrieval System. All references in this Agreement
to amendments or supplements to the Registration Statement, the Rule 462 Registration Statement, the Base Prospectus, the Final
Prospectus or the Prospectus shall be deemed to mean and include the subsequent filing of any document under the Securities Exchange
Act of 1934, as amended (the “Exchange Act”), that is deemed to be incorporated therein by reference therein
or otherwise deemed by the Rules and Regulations to be a part thereof.
(d) Effectiveness
of Registration. The Company has responded to all requests, if any, of the Commission for additional or supplemental information.
No stop order suspending the effectiveness of the Registration Statement or any Rule 462 Registration Statement is in effect and
no proceedings for such purpose have been instituted or are pending or, to the knowledge of the Company, are threatened by the
Commission.
(e) Accuracy
of Registration Statement. Each of the Registration Statement, any Rule 462 Registration Statement and any post-effective
amendment thereto, at the time it became effective, when any document filed under the Exchange Act was or is filed and at all
subsequent times, complied and will comply in all material respects with the Act and the Rules and Regulations, and did not and
will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary
in order to make the statements therein not misleading. The Prospectus, as amended or supplemented, as of its date and at all
subsequent times when a prospectus is delivered or required (or, but for the provisions of Rule 172, would be required) by applicable
law to be delivered in connection with sales of Securities, complied and will comply in all material respects with the Act, the
Exchange Act and the Rules and Regulations, and did not or will not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein not misleading, in the light of the circumstances under which they
were made. The foregoing representations and warranties in this Section 3(c) do not apply to any statements or omissions made
in reliance on and in conformity with information relating to the Underwriters furnished in writing to the Company by the Underwriters
through the Representative specifically for inclusion in the Registration Statement or Prospectus or any amendment or supplement
thereto. For all purposes of this Agreement, the information set forth in the Prospectus (i) in the fourth and fifth sentences
of the fourth paragraph under the caption “Underwriting” setting forth the amount of the selling concession and (ii)
in the tenth, eleventh and twelfth paragraphs under the caption “Underwriting” regarding stabilization, short positions
and penalty bids constitutes the only information (the “Underwriters’ Information”) relating to the Underwriters
furnished in writing to the Company by the Underwriters through the Representative specifically for inclusion in the preliminary
prospectus, the Registration Statement or the Prospectus.
(f) Company
Not Ineligible Issuer. (i) At the time of filing the Registration Statement relating to the Securities and (ii) as of the
date of the execution and delivery of this Agreement (with such date being used as the determination date for purposes of this
clause (ii)), the Company was not and is not an “ineligible issuer” (as defined in Rule 405 of the Rules and Regulations).
(g) Disclosure
at the Time of Sale. As of the Applicable Time, neither (i) the Issuer General Use Free Writing Prospectus(es) (as defined
below) issued at or prior to the Applicable Time, the most recent preliminary prospectus related to this Offering, and the information
included on Schedule II hereto, all considered together (collectively, the “General Disclosure Package”),
nor (ii) any individual Issuer Limited Use Free Writing Prospectus, when considered together with the General Disclosure Package,
included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to
statements in or omissions from the General Disclosure Package based upon and in conformity with written information furnished
to the Company by the Underwriters through the Representative specifically for use therein, it being understood and agreed that
the only such information furnished by the Underwriters consists of the Underwriters’ Information.
As
used in this subsection and elsewhere in this Agreement:
“Applicable
Time” means 8:15 p.m. (New York City Time) on July 28, 2020 or such other time as agreed by the Company and the Representative.
“Issuer
Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433 of the Rules
and Regulations, relating to the Securities that (i) is required to be filed with the Commission by the Company, (ii) is “a
written communication that is a road show” within the meaning of Rule 433(d)(8)(i), whether or not required to be filed
with the Commission or (iii) is exempt from filing pursuant to Rule 433(d)(5)(i) because it contains a description of the Securities
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).
“Issuer
General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is intended for general distribution
to prospective investors, as evidenced by its being specified in Schedule I hereto.
“Issuer
Limited Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is not an Issuer General Use Free
Writing Prospectus.
(h) Issuer
Free Writing Prospectuses. Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times through the
Prospectus Delivery Period (as defined below), does not include any information that conflicts with the information contained
in the Registration Statement. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing
Prospectus based upon and in conformity with the Underwriters’ Information. If at any time following the issuance of an
Issuer Free Writing Prospectus there occurred an event or development as a result of which such Issuer Free Writing Prospectus
conflicted with the information contained in the Registration Statement relating to the Securities or included an untrue statement
of material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances
prevailing at that subsequent time, not misleading, the Company has promptly notified the Representative and has promptly amended
or supplemented, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement
or omission.
(i) Distribution
of Offering Material by the Company. The Company has not distributed and will not distribute, prior to the later of the Closing
Date, any Option Closing Date and the completion of the Underwriters’ distribution of the Securities, any offering material
in connection with the offering or sale of the Securities, the Registration Statement, the preliminary prospectus, the Permitted
Free Writing Prospectuses reviewed and consented to by the Representative and included in Schedule I hereto, and the Prospectus.
None of the Marketing Materials (as defined herein), as of their respective issue dates and at all subsequent times through the
Prospectus Delivery Period (as defined below), include any information that conflicts with the information contained in the Registration
Statement. If at any time following the issuance of any Marketing Material there occurred an event or development as a result
of which such Marketing Material conflicted with the information contained in the Registration Statement relating to the Securities
or included an untrue statement of material fact or omitted to state a material fact necessary in order to make the statements
therein, in light of the circumstances prevailing at that subsequent time, not misleading, the Company has promptly notified the
Representative and has promptly amended or supplemented, at its own expense, such Marketing Material to eliminate or correct such
conflict, untrue statement or omission.
(j) Subsidiaries.
All of the direct and indirect subsidiaries of the Company (each, a “Subsidiary”) are set forth in the Registration
Statement, the General Disclosure Package and the Prospectus. The Company owns, directly or indirectly, all of the capital stock
or other equity interests of each Subsidiary free and clear of any lien, charge, pledge, security interest, encumbrance, right
of first refusal, preemptive right or other similar restriction (each, a “Lien”), and all of the issued and
outstanding shares of capital stock of each Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive
and similar rights to subscribe for or purchase securities.
(k) Organization
and Qualification. The Company and each of the Subsidiaries is an entity duly incorporated or otherwise organized, validly
existing and in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite power
and authority to own and use its properties and assets and to carry on its business as currently conducted. Neither the Company
nor any Subsidiary is in violation nor default of any of the provisions of its respective certificate or articles of incorporation,
bylaws or other organizational or charter documents (collectively, the “Charter Documents”). Each of the Company and
the Subsidiaries is duly qualified to conduct business and is in good standing as a foreign corporation or other entity in each
jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary, except
where the failure to be so qualified or in good standing, as the case may be, would not have or reasonably be expected to result
in: (i) a material adverse effect on the legality, validity or enforceability of this Agreement or any other agreement, document,
certificate or instrument required to be delivered pursuant to this Agreement (collectively, the “Transaction Documents”),
(ii) a material adverse effect on the results of operations, assets, business, prospects, or condition (financial or otherwise)
of the Company and the Subsidiaries, taken as a whole, or (iii) a material adverse effect on the Company’s ability to perform
in any material respect on a timely basis its obligations under any Transaction Document (any of (i), (ii) or (iii), a “Material
Adverse Effect”) and no action, claim, suit or proceeding (including, without limitation, a partial proceeding, such
as a deposition), whether commenced or threatened (each, a “Proceeding”) has been instituted in any such jurisdiction
revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority or qualification.
(l) Authorization;
Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions
contemplated by this Agreement and each of the other Transaction Documents and otherwise to carry out its obligations hereunder
and thereunder. The execution and delivery of this Agreement and each of the other Transaction Documents by the Company and the
consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary action on the
part of the Company and no further action is required by the Company, the Board of Directors or the Company’s stockholders
in connection herewith or therewith other than in connection with the Required Approvals (as hereinafter defined in Section
3(l)). This Agreement and each other Transaction Document to which it is a party has been (or upon delivery will have been)
duly executed by the Company and, when delivered in accordance with the terms hereof and thereof, assuming due authorization,
execution and delivery by the Representative, will constitute the valid and binding obligation of the Company enforceable against
the Company in accordance with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii)
as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii)
insofar as indemnification and contribution provisions may be limited by applicable law.
(m) No
Conflicts. The execution, delivery and performance by the Company of this Agreement and the other Transaction Documents to
which it is a party, the issuance and sale of the Securities and the consummation by it of the transactions contemplated hereby
and thereby do not and will not (i) conflict with or violate any provision of the Company’s or any Subsidiary’s Charter
Documents, or (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become
a default) under, result in the creation of any Lien upon any of the properties or assets of the Company or any Subsidiary, or
give to others any rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both)
of, any agreement, credit facility, debt or other instrument (evidencing a Company or Subsidiary debt or otherwise) or other understanding
to which the Company or any Subsidiary is a party or by which any property or asset of the Company or any Subsidiary is bound
or affected, or (iii) subject to the Required Approvals, conflict with or result in a violation of any law, rule, regulation,
order, judgment, injunction, decree or other restriction of any court or governmental authority to which the Company or a Subsidiary
is subject (including federal and state securities laws and regulations), or by which any property or asset of the Company or
a Subsidiary is bound or affected; except in the case of each of clauses (ii) and (iii), such as would not have or reasonably
be expected to result in a Material Adverse Effect.
(n) Filings,
Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of, give any notice
to, or make any filing or registration with, any court or other federal, state, local or other governmental authority or other
Person in connection with the execution, delivery and performance by the Company of the Transaction Documents, other than: (i)
the filing with the Commission of the Registration Statement and the Prospectus, (ii) such filings, if any, as are required to
be made under applicable state securities laws, (iii) such applications, notices, filings or authorizations as are required to
be obtained or made under applicable rules of the Financial Industry Regulatory Authority, Inc. (“FINRA”) and
The Nasdaq Stock Market, including, but not limited to, the listing of the Firm Shares for trading thereon, and (iv) such notices,
filings or authorizations as have been obtained, given or made as of the date hereof (collectively, the “Required Approvals”).
(o) [Reserved.]
(p) Issuance
of the Securities. The Securities are duly authorized and, when issued and paid for in accordance with the applicable Transaction
Documents, will be duly and validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company.
The Company has reserved from its duly authorized capital stock the maximum number of shares of Common Stock issuable pursuant
to this Agreement.
(q) Capitalization.
The capitalization of the Company as of the date hereof is as set forth in the Registration Statement, the General Disclosure
Package and the Prospectus. The Company has not issued any capital stock since its most recently filed periodic report under the
Exchange Act, other than pursuant to the Company’s equity incentive plans, the issuance of shares of Common Stock to employees,
directors or consultants pursuant to the Company’s equity incentive plans and pursuant to the conversion and/or exercise
of any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire at any time Common Stock,
including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible
into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock (“Common Stock
Equivalents”) and is outstanding as of the date of the most recently filed periodic report under the Exchange Act. No
individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company,
joint stock company, government (or an agency or subdivision thereof) or other entity of any kind (each, a “Person”)
has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions
contemplated by the Transaction Documents. Except as a result of the purchase and sale of the Securities or as disclosed in the
Registration Statement, the General Disclosure Package and the Prospectus, there are no outstanding options, warrants, scrip rights
to subscribe to, calls or commitments of any character whatsoever relating to, or securities, rights or obligations convertible
into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire, any shares of Common Stock
or the capital stock of any Subsidiary, or contracts, commitments, understandings or arrangements by which the Company or any
Subsidiary is or may become bound to issue additional shares of Common Stock or Common Stock Equivalents or capital stock of any
Subsidiary. The issuance and sale of the Securities will not obligate the Company or any Subsidiary to issue shares of Common
Stock or other securities to any Person (other than the Underwriters) and will not result in a right of any holder of Company
securities to adjust the exercise, conversion, exchange or reset price under any of such securities. There are no securities of
the Company or any Subsidiary that have any anti-dilution or similar adjustment rights (other than adjustments for stock splits,
recapitalizations, and the like) to the exercise or conversion price, have any exchange rights, or reset rights. Except as set
forth in the Registration Statement, the General Disclosure Package and the Prospectus, there are no outstanding securities or
instruments of the Company or any Subsidiary that contain any redemption or similar provisions, and there are no contracts, commitments,
understandings or arrangements by which the Company or any Subsidiary is or may become bound to redeem a security of the Company
or such Subsidiary. The Company does not have any stock appreciation rights or “phantom stock” plans or agreements
or any similar plan or agreement. All of the outstanding shares of capital stock of the Company are duly authorized, validly issued,
fully paid and nonassessable, have been issued in compliance in all material respects with all federal and state securities laws,
and none of such outstanding shares was issued in violation of any preemptive rights or similar rights to subscribe for or purchase
securities. No further approval or authorization of any stockholder, the Board of Directors or others is required for the issuance
and sale of the Securities. There are no stockholders agreements, voting agreements or other similar agreements with respect to
the Company’s capital stock to which the Company is a party or, to the knowledge of the Company, between or among any of
the Company’s stockholders.
(r) SEC
Reports; Financial Statements. The Company has filed all reports, schedules, forms, statements and other documents required
to be filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof,
for the two years preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such
material) (the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, together with
the Registration Statement, the General Disclosure Package and the Prospectus, being collectively referred to herein as the “SEC
Reports”) on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports
prior to the expiration of any such extension. As of their respective dates, the SEC Reports complied in all material respects
with the requirements of the Securities Act and the Exchange Act, as applicable, and none of the SEC Reports, when filed, contained
any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order
to make the statements therein, in the light of the circumstances under which they were made, not misleading. The Company has
never been an issuer subject to Rule 144(i) under the Securities Act. The financial statements of the Company included in the
SEC Reports comply in all material respects with applicable accounting requirements and the rules and regulations of the Commission
with respect thereto as in effect at the time of filing. Such financial statements have been prepared in accordance with United
States generally accepted accounting principles applied on a consistent basis during the periods involved (“GAAP”),
except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements
may not contain all footnotes required by GAAP, and fairly present in all material respects the financial position of the Company
and its consolidated Subsidiaries as of and for the dates thereof and the results of operations and cash flows for the periods
then ended, subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments. The agreements and
documents described in the SEC Reports conform to the descriptions thereof contained therein and there are no agreements or other
documents required by the Securities Act and the rules and regulations thereunder to be described in the SEC Reports or to be
filed with the Commission as exhibits to the Registration Statement, that have not been so described or filed. Each agreement
or other instrument (however characterized or described) to which the Company is a party or by which it is or may be bound or
affected and (i) that is referred to in the SEC Reports, or (ii) is material to the Company’s business, has been duly authorized
and validly executed by the Company, is in full force and effect in all material respects and is enforceable against the Company
and, to the Company’s knowledge, the other parties thereto, in accordance with its terms, except (x) as such enforceability
may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, (y) as enforceability
of any indemnification or contribution provision may be limited under the federal and state securities laws, and (z) that the
remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and
to the discretion of the court before which any proceeding therefore may be brought. Except as disclosed in the SEC Reports, none
of such agreements or instruments has been assigned by the Company, and neither the Company nor, to the Company’s knowledge,
any other party is in default thereunder and, to the Company’s knowledge, no event has occurred that, with the lapse of
time or the giving of notice, or both, would constitute a default thereunder. To the Company’s knowledge, performance by
the Company of the material provisions of such agreements or instruments will not result in a violation of any existing applicable
law, rule, regulation, judgment, order or decree of any governmental agency or court, domestic or foreign, having jurisdiction
over the Company or any of its assets or businesses, including, without limitation, those relating to environmental laws and regulations.
(s) Material
Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest audited financial statements included
within the SEC Reports, except as reflected or specifically disclosed in a subsequent SEC Report filed prior to the date hereof,
(i) there has been no event, occurrence or development that has had or that would reasonably be expected to result in a Material
Adverse Effect, (ii) the Company has not incurred any material liabilities (contingent or otherwise) other than (A) trade payables
and accrued expenses incurred in the ordinary course of business consistent with past practice and (B) liabilities not required
to be reflected in the Company’s financial statements pursuant to GAAP or disclosed in filings made with the Commission,
(iii) the Company has not altered its method of accounting, (iv) the Company has not declared or made any dividend or distribution
of cash or other property to its stockholders or purchased, redeemed or made any agreements to purchase or redeem any shares of
its capital stock and (v) the Company has not issued any equity securities to any officer, director or Affiliate, except pursuant
to existing Company equity incentive plans or as set forth in the Registration Statement, the General Disclosure Package and the
Prospectus. The Company does not have pending before the Commission any request for confidential treatment of information. Except
for the issuance of the Securities contemplated by this Agreement, no event, liability, fact, circumstance, occurrence or development
has occurred or exists or is reasonably expected to occur or exist with respect to the Company or its Subsidiaries or their respective
businesses, prospects, properties, operations, assets or financial condition that would be required to be disclosed by the Company
under applicable securities laws at the time this representation is made or deemed made that has not been publicly disclosed at
least 1 Trading Day prior to the date that this representation is made.
(t) Litigation.
There is no action, suit, inquiry, notice of violation or proceeding pending or, to the knowledge of the Company, threatened against
or affecting the Company, any Subsidiary or any of their respective properties before or by any court, arbitrator, governmental
or administrative agency or regulatory authority (federal, state, county, local or foreign) (collectively, an “Action”)
which (i) adversely affects or challenges the legality, validity or enforceability of any of the Transaction Documents or the
Securities or (ii) would, if there were an unfavorable decision, have or reasonably be expected to result in a Material Adverse
Effect. Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, neither the Company
nor any Subsidiary, nor, any director or officer thereof, is or has been the subject of any Action involving a claim of violation
of or liability under federal or state securities laws or a claim of breach of fiduciary duty. There has not been, and to the
knowledge of the Company, there is not pending or contemplated, any investigation by the Commission involving the Company or any
current or former director or officer of the Company. The Commission has not issued any stop order or other order suspending the
effectiveness of any registration statement filed by the Company or any Subsidiary under the Exchange Act or the Securities Act.
(u) Labor
Relations. No labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the employees of
the Company, which would reasonably be expected to result in a Material Adverse Effect. None of the Company’s or its Subsidiaries’
employees is a member of a union that relates to such employee’s relationship with the Company or such Subsidiary, and neither
the Company nor any of its Subsidiaries is a party to a collective bargaining agreement, and the Company and its Subsidiaries
believe that their relationships with their employees are good. To the knowledge of the Company, no executive officer of the Company
or any Subsidiary, is, or is now expected to be, in violation of any material term of any employment contract, confidentiality,
disclosure or proprietary information agreement or non-competition agreement, or any other contract or agreement or any restrictive
covenant in favor of any third party, and the continued employment of each such executive officer does not subject the Company
or any of its Subsidiaries to any liability with respect to any of the foregoing matters. The Company and its Subsidiaries are
in compliance with all U.S. federal, state, local and foreign laws and regulations relating to employment and employment practices,
terms and conditions of employment and wages and hours, except where the failure to be in compliance would not, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect.
(v) Compliance.
Except as disclosed in the SEC Reports and as set forth in the Registration Statement, the General Disclosure Package and the
Prospectus, neither the Company nor any Subsidiary: (i) is in default under or in violation of (and no event has occurred that
has not been waived that, with notice or lapse of time or both, would result in a default by the Company or any Subsidiary under),
nor has the Company or any Subsidiary received notice of a claim that it is in default under or that it is in violation of, any
indenture, loan or credit agreement or any other agreement or instrument to which it is a party or by which it or any of its properties
is bound (whether or not such default or violation has been waived), (ii) is in violation of any judgment, decree or order of
any court, arbitrator or other governmental authority or (iii) is or has been in violation of any statute, rule, ordinance or
regulation of any governmental authority, including, without limitation, all foreign, federal, state and local laws relating to
taxes, environmental protection, occupational health and safety, product quality and safety and employment and labor matters,
except in each case as would not have or reasonably be expected to result in a Material Adverse Effect.
(w) Environmental
Laws. The Company and its Subsidiaries (i) are in compliance in all material respects with all federal, state, local and foreign
laws relating to pollution or protection of human health or the environment (including ambient air, surface water, groundwater,
land surface or subsurface strata), including laws relating to emissions, discharges, releases or threatened releases of chemicals,
pollutants, contaminants, or toxic or hazardous substances or wastes (collectively, “Hazardous Materials”)
into the environment, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport
or handling of Hazardous Materials, as well as all authorizations, codes, decrees, demands, or demand letters, injunctions, judgments,
licenses, notices or notice letters, orders, permits, plans or regulations, issued, entered, promulgated or approved thereunder
(“Environmental Laws”); (ii) have received all permits licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses; and (iii) are in compliance with all terms and conditions of any such
permit, license or approval where in each clause (i), (ii) and (iii), the failure to so comply would be reasonably expected to
have, individually or in the aggregate, a Material Adverse Effect.
(x) Regulatory
Permits. The Company and the Subsidiaries possess all certificates, authorizations and permits issued by the appropriate federal,
state, local or foreign regulatory authorities necessary to conduct their respective businesses as described in the SEC Reports,
except where the failure to possess such permits would not reasonably be expected to result in a Material Adverse Effect (“Material
Permits”), and neither the Company nor any Subsidiary has received any written notice of proceedings relating to the
revocation or modification of any Material Permit.
(y) Title
to Assets. The Company and the Subsidiaries have good and marketable title in fee simple to all real property owned by them
and good and marketable title in all personal property owned by them that is material to the business of the Company and the Subsidiaries,
in each case free and clear of all Liens, except for (i) Liens as do not materially affect the value of such property and do not
materially interfere with the use made and proposed to be made of such property by the Company and the Subsidiaries and (ii) Liens
for the payment of federal, state or other taxes, for which appropriate reserves have been made therefor in accordance with GAAP
and, the payment of which is neither delinquent nor subject to penalties. Any real property and facilities held under lease by
the Company and the Subsidiaries are held by them under valid, subsisting and enforceable leases with which the Company and the
Subsidiaries are in compliance in all material respects.
(z) Intellectual
Property. To the knowledge of the Company, the Company and the Subsidiaries have, or have rights to use, all patents, patent
applications, trademarks, trademark applications, service marks, trade names, trade secrets, inventions, copyrights, licenses
and other intellectual property rights and similar rights necessary or required for use in connection with their respective businesses
as described in the SEC Reports and which the failure to so have could have a Material Adverse Effect (collectively, the “Intellectual
Property Rights”). None of, and neither the Company nor any Subsidiary has received a notice (written or otherwise)
that any of, the Intellectual Property Rights has expired, terminated or been abandoned, or is expected to expire or be abandoned,
within two (2) years from the date of this Agreement, except where such action would not reasonably be expected to have a Material
Adverse Effect. Neither the Company nor any Subsidiary has received, since the date of the latest audited financial statements
included within the SEC Reports, a written notice of a claim or otherwise has any knowledge that the Intellectual Property Rights
violate or infringe upon the rights of any Person, except as would not have or reasonably be expected to not have a Material Adverse
Effect. To the knowledge of the Company, all such Intellectual Property Rights are enforceable and there is no existing infringement
by another Person of any of the Intellectual Property Rights. The Company and its Subsidiaries have taken reasonable security
measures to protect the secrecy, confidentiality and value of all of their intellectual properties, except where failure to do
so would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Company has no knowledge
that it lacks or will be unable to obtain any rights or licenses to use all Intellectual Property Rights that are necessary to
conduct its business.
(aa) Insurance.
The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks
and in such amounts as are prudent and customary in the businesses in which the Company and the Subsidiaries are engaged, including,
but not limited to, directors and officers insurance coverage at least equal to the aggregate Purchase Price. Neither the Company
nor any Subsidiary 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 without a significant
increase in cost.
(bb) Transactions
With Affiliates and Employees. Except as set forth in the SEC Reports, none of the officers or directors of the Company or
any Subsidiary and, to the knowledge of the Company, none of the employees of the Company or any Subsidiary is presently a party
to any transaction with the Company or any Subsidiary (other than for services as employees, officers and directors), including
any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or
personal property to or from, providing for the borrowing of money from or lending of money to or otherwise requiring payments
to or from any officer, director or such employee or, to the knowledge of the Company, any entity in which any officer, director,
or any such employee has a substantial interest or is an officer, director, trustee, stockholder, member or partner, in each case
in excess of $120,000 other than for (i) payment of salary or consulting fees for services rendered, (ii) reimbursement for expenses
incurred on behalf of the Company and (iii) other employee benefits, including stock option agreements under any stock option
plan of the Company.
(cc) Xxxxxxxx-Xxxxx;
Internal Accounting Controls. The Company and the Subsidiaries are in compliance with any and all applicable requirements
of the Xxxxxxxx-Xxxxx Act of 2002 that are effective and applicable to the Company as of the date hereof, and any and all applicable
rules and regulations promulgated by the Commission thereunder that are effective as of the date hereof and as of the Closing
Date or the Option Closing Date, as applicable. Except as set forth in the SEC Reports, the Company and the Subsidiaries maintain
a system of internal accounting controls sufficient to provide reasonable assurance that: (i) transactions are executed in accordance
with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation
of financial statements in conformity with GAAP 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
and the Subsidiaries have established disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e))
for the Company and the Subsidiaries and designed such disclosure controls and procedures to ensure that information required
to be disclosed by the Company in the reports 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. The Company’s certifying officers
have evaluated the effectiveness of the disclosure controls and procedures of the Company and the Subsidiaries as of the end of
the period covered by the most recently filed periodic report under the Exchange Act (such date, the “Evaluation Date”).
The Company presented in its most recently filed periodic report under the Exchange Act the conclusions of the certifying officers
about the effectiveness of the disclosure controls and procedures based on their evaluations as of the Evaluation Date. Since
the Evaluation Date, there have been no changes in the internal control over financial reporting (as such term is defined in the
Exchange Act) of the Company and its Subsidiaries that have materially affected, or is reasonably likely to materially affect,
the internal control over financial reporting of the Company and its Subsidiaries.
(dd) Certain
Fees; FINRA Affiliation. Except as set forth in the Registration Statement, the General Disclosure Package and the Prospectus,
no brokerage or finder’s fees or commissions are or will be payable by the Company or any Subsidiary to any broker, financial
advisor or consultant, finder, placement agent, investment banker, bank or other Person with respect to the transactions contemplated
by the Transaction Documents. To the Company’s knowledge, there are no other arrangements, agreements or understandings
of the Company or, to the Company’s knowledge, any of its stockholders that may affect the Underwriters’ compensation,
as determined by FINRA. The Company has not made any direct or indirect payments (in cash, securities or otherwise) to (i) any
person, as a finder’s fee, investing fee or otherwise, in consideration of such person raising capital for the Company or
introducing to the Company persons who provided capital to the Company, (ii) any FINRA member, or (iii) any person or entity that
has any direct or indirect affiliation or association with any FINRA member within the 180-day period prior to the date on which
the Registration Statement was filed with the Commission (the “Filing Date”) or thereafter. To the Company’s
knowledge, no (i) officer or director of the Company or its subsidiaries, (ii) owner of 5% or more of the Company’s unregistered
securities or that of its subsidiaries or (iii) owner of any amount of the Company’s unregistered securities acquired within
the 180-day period prior to the Filing Date, has any direct or indirect affiliation or association with any FINRA member. The
Company will advise the Underwriters and their respective counsel if it becomes aware that any officer, director or stockholder
of the Company or its subsidiaries is or becomes an affiliate or associated person of a FINRA member participating in the Offering.
(ee) Investment
Company. The Company is not, and is not an affiliate of, and immediately after receipt of payment for the Securities, will
not be or be an affiliate of, an “investment company” within the meaning of the Investment Company Act of 1940, as
amended.
(ff) Registration
Rights. Except as set forth in the Registration Statement, the General Disclosure Package and the Prospectus, no Person has
any right to cause the Company or any Subsidiary to effect the registration under the Securities Act of any securities of the
Company or any Subsidiary.
(gg) Listing
and Maintenance Requirements. The Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange Act, and the
Company has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration
of the Common Stock under the Exchange Act nor has the Company received any notification that the Commission is contemplating
terminating such registration. Except as disclosed in the SEC Reports, the Company has not, in the 12 months preceding the date
hereof, received notice from the Nasdaq Capital Market to the effect that the Company is not in compliance with the listing or
maintenance requirements of the Nasdaq Capital Market. Except as disclosed in the SEC Reports, the Company is, and has no reason
to believe that it will not in the foreseeable future continue to be, in compliance with all such listing and maintenance requirements.
The Common Stock is currently eligible for electronic transfer through DTC or another established clearing corporation and the
Company is current in payment of the fees to DTC (or such other established clearing corporation) in connection with such electronic
transfer. The issuance and sale of the Securities hereunder does not contravene the rules and regulations of The Nasdaq Stock
Market.
(hh) [Reserved.]
(ii) No
Integrated Offering. Neither the Company or any Person acting on its behalf, nor, to the Company’s knowledge, any Person
that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with
the Company (as such terms are used in and construed under Rule 405 under the Securities Act) (each, an “Affiliate”)
or any Person acting on their behalf, has, directly or indirectly, made any offers or sales of any security or solicited any offers
to buy any security, under circumstances that would cause this offering of the Securities to be integrated with prior offerings
by the Company for purposes of any applicable shareholder approval provisions of The Nasdaq Stock Market.
(jj) Solvency.
Based on the consolidated financial condition of the Company as of the Closing Date and as of the Option Closing Date, after giving
effect to the receipt by the Company of the proceeds from the sale of the Securities hereunder, the current cash flow of the Company,
together with the proceeds the Company would receive, were it to liquidate all of its assets, after taking into account all anticipated
uses of the cash, may be insufficient to pay all amounts on or in respect of its liabilities when such amounts are required to
be paid. The Company does not intend to incur debts beyond its ability to pay such debts as they mature (taking into account the
timing and amounts of cash to be payable on or in respect of its debt). Except as set forth in the Registration Statement, the
General Disclosure Package and the Prospectus, the Company has no knowledge of any facts or circumstances which lead it to believe
that it will file for reorganization or liquidation under the bankruptcy or reorganization laws of any jurisdiction within one
year from the Closing Date or the Option Closing Date, as applicable. The Registration Statement, the General Disclosure Package
and the Prospectus sets forth as of the date hereof all outstanding secured and unsecured Indebtedness of the Company or any Subsidiary,
or for which the Company or any Subsidiary has commitments. For the purposes of this Agreement, “Indebtedness”
means (x) any liabilities for borrowed money or amounts owed in excess of $50,000 (other than trade accounts payable incurred
in the ordinary course of business), (y) all guaranties, endorsements and other contingent obligations in respect of indebtedness
of others, whether or not the same are or should be reflected in the Company’s consolidated balance sheet (or the notes
thereto), except guaranties by endorsement of negotiable instruments for deposit or collection or similar transactions in the
ordinary course of business; and (z) the present value of any lease payments in excess of $50,000 due under leases required to
be capitalized in accordance with GAAP. Except as set forth in the Registration Statement, the General Disclosure Package and
the Prospectus, neither the Company nor any Subsidiary is in default with respect to any Indebtedness.
(kk) Tax
Status. Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result in a
Material Adverse Effect, each of the Company and its Subsidiaries (i) has made or filed all United States federal, state and local
income and all foreign income and franchise tax returns, reports and declarations required by any jurisdiction to which it is
subject, (ii) has paid all taxes and other governmental assessments and charges that are material in amount, shown or determined
to be due on such returns, reports and declarations and (iii) has set aside on its books provision reasonably adequate for the
payment of all material taxes for periods subsequent to the periods to which such returns, reports or declarations apply. There
are no unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction, and the officers of
the Company or of any Subsidiary know of no basis for any such claim.
(ll) Foreign
Corrupt Practices. Neither the Company nor any Subsidiary, nor to the knowledge of the Company or any Subsidiary, any agent
or other person acting on behalf of the Company or any Subsidiary, has (i) directly or indirectly, used any funds for unlawful
contributions, gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any
unlawful payment to foreign or domestic government officials or employees or to any foreign or domestic political parties or campaigns
from corporate funds, (iii) failed to disclose fully any contribution made by the Company or any Subsidiary (or made by any person
acting on its behalf of which the Company is aware) which is in violation of law, or (iv) violated in any material respect any
provision of Foreign Corrupt Practices Act of 1977, as amended.
(mm) Accountants.
The Company’s accounting firm is Xxxxx Xxxxxx Xxxxxxx LLP (the “Accountants”). To the knowledge and belief
of the Company, such accounting firm (i) is a registered public accounting firm as required by the Exchange Act and (ii) shall
express its opinion with respect to the financial statements to be included in the Company’s Annual Report for the fiscal
year ending December 31, 2020.
(nn) Regulation
M Compliance. The Company has not, and to its knowledge no one acting on its behalf has, (i) taken, directly or indirectly,
any action designed to cause or to result in the stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of any of the Securities, (ii) sold, bid for, purchased, or, paid any compensation for soliciting
purchases of, any of the Securities, or (iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase
any other securities of the Company, other than, in the case of clauses (ii) and (iii), compensation paid to the Underwriters
in connection with the Offering.
(oo) Office
of Foreign Assets Control. Neither the Company nor any Subsidiary nor, to the Company’s knowledge, any director, officer,
agent, employee or Affiliate of the Company or any Subsidiary is currently subject to any U.S. sanctions administered by the Office
of Foreign Assets Control of the U.S. Treasury Department (“OFAC”).
(pp) 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 Representative’s
request.
(qq) Bank
Holding Company Act. Neither the Company nor any of its Subsidiaries or Affiliates 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 or Affiliates owns or controls, directly
or indirectly, five percent (5%) or more of the outstanding shares of any class of voting securities or twenty-five percent 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 or Affiliates 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.
(rr) Money
Laundering. 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, applicable money laundering statutes and applicable rules and regulations thereunder (collectively, the “Money
Laundering Laws”), and no Action or Proceeding by or before any court or governmental agency, authority or body or any
arbitrator involving the Company or any Subsidiary with respect to the Money Laundering Laws is pending or, to the knowledge of
the Company or any Subsidiary, threatened.
(ss) Share
Option Plans. Each share option granted by the Company under the Company’s share option plans was granted (i) in accordance
with the terms of the Company’s share option plans and (ii) with an exercise price at least equal to the fair market value
of the Common Stock on the date such share option would be considered granted under GAAP and applicable law. No share option granted
under the Company’s share option plan has been backdated. The Company has not knowingly granted, and there is no and has
been no Company policy or practice to knowingly grant, share options prior to, or otherwise knowingly coordinate the grant of
share options with, the release or other public announcement of material information regarding the Company or its Subsidiaries
or their financial results or prospects.
(tt) Officer’s
Certificates. Any certificate signed by any officer of the Company or any of its Subsidiaries delivered to the Representative
or its counsel shall be deemed a representation and warranty by the Company to the Underwriters as to the matters covered thereby.
4. Agreements
of the Company. The Company agrees with the Underwriters as follows:
(a) Amendments
and Supplements to Registration Statement. The Company shall not, either prior to any effective date or thereafter during
such period as the Prospectus is required by law to be delivered (whether physically or through compliance with Rule 172 of the
Rules and Regulations or any similar rule) (the “Prospectus Delivery Period”) in connection with sales of the
Securities by an Underwriter or dealer, amend or supplement the Registration Statement, the General Disclosure Package or the
Prospectus, unless a copy of such amendment or supplement thereof shall first have been submitted to the Representative within
a reasonable period of time prior to the filing or, if no filing is required, the use thereof and the Representative shall not
have objected thereto in good faith.
(b) Amendments
and Supplements to the Registration Statement, the General Disclosure Package, and the Prospectus and Other Securities Act Matters.
During the Prospectus Delivery Period, the Company will comply with all requirements imposed upon it by the Securities Act, as
now and hereafter amended, and by the Rules and Regulations, as from time to time in force, and by the Exchange Act so far as
necessary to permit the continuance of sales of or dealings in the Securities as contemplated by the provisions hereof, the General
Disclosure Package, the Registration Statement and the Prospectus. If, during the Prospectus Delivery Period, any event or development
shall occur or condition exist as a result of which the General Disclosure Package or the Prospectus, as then amended or supplemented,
would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances then prevailing or under which they were made, as the case may be, not misleading,
or if it shall be necessary to amend or supplement the General Disclosure Package or the Prospectus in order to make the statements
therein, in the light of the circumstances then prevailing or under which they were made, as the case may be, not misleading,
or if in the opinion of the Representative it is otherwise necessary to amend or supplement the Registration Statement, the General
Disclosure Package or the Prospectus, or to file a new registration statement containing the Prospectus, in order to comply with
the Act, the Rules and Regulations, the Exchange Act or the Exchange Act Rules, including in connection with the delivery of the
Prospectus, the Company agrees to (i) promptly notify the Representative of any such event or condition and (ii) promptly prepare
(subject to Section 4(a) and 4(f) hereof), file with the Commission (and use its best efforts to have any amendment to the Registration
Statement or any new registration statement to be declared effective) and furnish at its own expense to the Representative (and,
if applicable, to dealers), amendments or supplements to the Registration Statement, the General Disclosure Package or the Prospectus,
or any new registration statement, necessary in order to make the statements in the General Disclosure Package or the Prospectus
as so amended or supplemented, in the light of the circumstances then prevailing or under which they were made, as the case may
be, not misleading, or so that the Registration Statement or the Prospectus, as amended or supplemented, will comply with the
Act, the Rules and Regulations, the Exchange Act or the Exchange Act Rules or any other applicable law.
(c) Notifications
to the Underwriters. The Company shall use its best efforts to cause the Registration Statement to become effective, and shall
notify the Representative promptly, and shall confirm such advice in writing, (i) when any post-effective amendment to the Registration
Statement has become effective and when any post-effective amendment thereto becomes effective, (ii) of any request by the Commission
for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the commencement
by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the
Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose,
including, without limitation, the issuance by the Commission of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose or the threat thereof, (iv) of the happening of any event during
the Prospectus Delivery Period that in the judgment of the Company makes any statement made in the Registration Statement or the
Prospectus misleading (including by omission) or untrue or that requires the making of any changes in the Registration Statement
or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, not misleading
(including by omission), and (v) of receipt by the Company or any representative of the Company of any other communication from
the Commission relating to the Company, the Registration Statement, any preliminary prospectus or the Prospectus. If at any time
the Commission shall issue any order suspending the effectiveness of the Registration Statement, the Company shall use best efforts
to obtain the withdrawal of such order at the earliest possible moment. The Company shall comply with the provisions of and make
all requisite filings with the Commission pursuant to Rules 424(b), 430A, 430B and 462(b) of the Rules and Regulations and to
notify the Representative promptly of all such filings.
(d) Executed
Registration Statement. The Company shall furnish to the Representative, without charge, one signed copy of the Registration
Statement, and of any post-effective amendment thereto, including financial statements and schedules, and all exhibits thereto,
and shall furnish to the Representative, without charge, a copy of the Registration Statement and any post-effective amendment
thereto, including financial statements and schedules but without exhibits.
(e) Undertakings.
The Company shall comply with all the provisions of any undertakings contained and required to be contained in the Registration
Statement.
(f) Prospectus.
The Company shall prepare the Prospectus in a form approved by the Representative and shall file such Prospectus with the
Commission pursuant to Rule 424(b) of the Rules and Regulations with a filing date not later than the second business day following
the execution and delivery of this Agreement. From time to time during the period when the Prospectus is required (or, but for
the provisions of Rule 172 under the Act, would be required) to be delivered, the Company shall deliver to the Representative,
without charge, as many copies of the Prospectus and any amendment or supplement thereto as the Representative may reasonably
request. The Company consents to the use of the Prospectus and any amendment or supplement thereto by the Representative and by
all dealers to whom the Securities may be sold, both in connection with the offering or sale of the Securities and for any period
of time thereafter during the Prospectus Delivery Period. If, during the Prospectus Delivery Period any event shall occur that
in the judgment of the Company or counsel to the Underwriters should be set forth in the Prospectus in order to make any statement
therein, in the light of the circumstances under which it was made, not misleading (including by omission), or if it is necessary
to supplement or amend the Prospectus to comply with law, the Company shall forthwith prepare and duly file with the Commission
an appropriate supplement or amendment thereto, and shall deliver to the Representative, without charge, such number of copies
thereof as the Representative may reasonably request.
(g) Permitted
Free Writing Prospectuses. The Company represents and agrees that it has not made and, unless it obtains the prior consent
of the Representative, will not make, any offer relating to the Securities that would constitute a “free writing prospectus”
as defined in Rule 405 of the Rules and Regulations, required to be filed with the Commission or retained by the Company under
Rule 433 of the Rules and Regulations; provided that the prior written consent of the Representative hereto shall be deemed
to have been given in respect of the Issuer Free Writing Prospectuses included in Schedule I hereto. Any such free writing
prospectus consented to by the Representative is herein referred to as a “Permitted Free Writing Prospectus.”
The Company agrees that (i) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer
Free Writing Prospectus, and (ii) has complied and will comply, as the case may be, with the requirements of Rules 164 and 433
of the Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending
and record keeping. If at any time following the issuance of an Issuer Free Writing Prospectus there occurs an event or development
as a result of which such Issuer Free Writing Prospectus would conflict with the information contained in the Registration Statement
relating to the Securities or would include an untrue statement of material fact or would omit to state a material fact necessary
in order to make the statements therein, in light of the circumstances prevailing at that subsequent time, not misleading, the
Company will promptly notify the Representative and will promptly amend or supplement, at its own expense, such Issuer Free Writing
Prospectus to eliminate or correct such conflict, untrue statement, or omission. The Company represents that it has satisfied
and agrees that it will satisfy the conditions in Rule 433 to avoid a requirement to file with the Commission any electronic road
show.
(h) Compliance
with Blue Sky Laws. Prior to any public offering of the Securities by the Underwriters, the Company shall cooperate with the
Representative and counsel to the Underwriters in connection with the registration or qualification (or the obtaining of exemptions
from the application thereof) of the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions
as the Representative may so request, provided, however, that in no event shall the Company be obligated to qualify
a public offering outside the United States or to do business as a foreign corporation in any jurisdiction where it is not now
so qualified, to qualify or register as a dealer in securities, to take any action which would subject it to general service of
process in any jurisdiction where it is not now so subject or subject itself to ongoing taxation in respect of doing business
in any jurisdiction in which it is not so subject.
(i) Delivery
of Financial Statements. During a period of five years commencing on the date hereof, the Company shall furnish to the Representative
and each other Underwriter who may so request copies of such financial statements and other periodic and special reports as the
Company may from time to time distribute generally to the holders of any class of its capital stock, and will furnish to the Representative
and each other Underwriter who may so request a copy of each annual or other report it shall be required to file with the Commission;
provided, however, that the availability of electronically transmitted copies filed with the Commission pursuant to XXXXX shall
satisfy the Company’s obligation to furnish copies hereunder.
(j) Availability
of Earnings Statements. The Company shall make generally available to holders of its securities as soon as may be practicable
but in no event later than the last day of the fifteenth (15th) full calendar month following the calendar quarter in which the
most recent effective date occurs in accordance with Rule 158 of the Rules and Regulations, an earnings statement (which need
not be audited but shall be in reasonable detail) covering a period of twelve (12) months ended commencing after the effective
date, and satisfying the provisions of Section 11(a) of the Act (including Rule 158 of the Rules and Regulations).
(k) Payment
of Expenses.
(i) The
Representative reserves the right to reduce any item of compensation or adjust the terms thereof as specified herein in the event
that a determination shall be made by FINRA to the effect that the Underwriters’ aggregate compensation is in excess of
FINRA rules or that the terms thereof require adjustment.
(ii) Whether
or not the transactions contemplated by this Agreement, the Registration Statement and the Prospectus are consummated or this
Agreement is terminated, the Company hereby agrees to pay the following:
(1) all
expenses in connection with the preparation, printing, formatting for XXXXX and filing of the Registration Statement, any Preliminary
Prospectus and the Prospectus and any and all exhibits, amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers;
(2) all
fees and expenses in connection with filings with FINRA’s Public Offering System;
(3) all
fees, disbursements and expenses of the Company’s counsel, accountants and other agents and representatives in connection
with the registration of the Securities under the Act and the Offering;
(4) all
expenses in connection with the qualifications of the Securities for offering and sale under state or foreign securities or blue
sky laws (including, without limitation, all filing and registration fees, and the fees and disbursements of Underwriters’
counsel;
(5) all
fees and expenses in connection with listing the Securities on a national securities exchange;
(6) all
expenses, including travel and lodging expenses, of the Company’s officers, directors and employees and any other expense
of the Company incurred in connection with attending or hosting meetings with prospective purchasers of the Securities and any
fees and expenses associated with the i-Deal system and NetRoadshow;
(7) any
stock transfer taxes or other taxes incurred in connection with this Agreement or the offering, including any stock transfer taxes
payable upon the transfer of securities to the Underwriters;
(8) the
costs associated with preparing, printing and delivering certificates representing the Securities; and
(9) the
cost and charges of any transfer agent or registrar for the Securities.
(l) Reimbursement
of Expenses. If the Offering is consummated, the Company agrees to reimburse the Underwriters for their out of pocket costs
and expenses (including Underwriters’ counsel’s fees and expenses) incident to the Offering; provided, however,
that all such costs and expenses (including Underwriters’ counsel’s fees and expenses) that are incurred by the Underwriters
shall not exceed $65,000 in the aggregate. If the Offering is not consummated for any reason (other than a breach by the Representative
of any of its obligations hereunder), the Company shall reimburse the Underwriters for all documented out-of-pocket expenses (including
the reasonable fees, disbursements and other charges of counsel to the Underwriters) actually incurred by the Underwriters in
connection herewith and as allowed under FINRA Rule 5110; provided, however, that the maximum amount of costs and
expenses to be reimbursed by Company to the Underwriters pursuant to this Section 4(l) shall not exceed $15,000 (including the
reasonable fees, disbursements and other charges of counsel to the Underwriters).
(m) No
Stabilization or Manipulation. The Company shall not at any time, directly or indirectly, take any action intended to cause
or result in, or which might reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation,
under the Act or otherwise, of the price of the Shares or the Securities to facilitate the sale or resale of any of the Securities.
(n) Use
of Proceeds. The Company shall apply the net proceeds from the offering and sale of the Securities to be sold by the Company
in the manner set forth in the General Disclosure Package and the Prospectus under “Use of Proceeds” and shall file
such reports with the Commission with respect to the sale of the Securities and the application of the proceeds therefrom as may
be required in accordance with Rule 463 under the Act.
(o) Lock-Up
Agreement of Company. The Company shall not, for a period of one hundred twenty (120) days after the Closing Date, without
the prior written consent of Maxim (which consent may be withheld in its sole discretion), (1) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to
purchase, lend, or otherwise transfer or dispose of, directly or indirectly, or file with the Commission a registration statement
under the Act to register, any shares of common stock warrants, or any securities convertible into or exercisable or exchangeable
for common stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, directly
or indirectly, any of the economic benefits or risks of ownership of shares of common stock, or warrants, whether any such transaction
described in clause (1) or (2) above is settled by delivery of common stock, warrants or other securities, in cash or otherwise,
or publicly disclose the intention to enter into any transaction described in clause (1) or (2) above. The foregoing sentence
shall not apply to (A) the Securities to be sold hereunder, (B) any shares of common stock issued pursuant to a trading plan established
prior to March 31, 2020 pursuant to Rule 10b5-1 of the Exchange Act, and (C) the issuance of Common Stock upon the exercise of
warrants as disclosed as outstanding in the Registration Statement, the General Disclosure Package or the Prospectus, provided
that such warrants have not been amended since the date of this Agreement to increase the number of such warrants or warrant shares
or to decrease the exercise price of such warrants or to extend the term of such warrants.
(p) NASDAQ
listing. The Company will use its reasonable best efforts to effect and maintain the listing of the Common Stock on
the NASDAQ Capital Market for at least three (3) years after the Closing Date.
(q) The
Company shall use its best efforts to maintain the effectiveness of the Registration Statement for at least three (3) years after
the Closing Date.
5. Conditions
of the Obligations of the Underwriters. The obligation of the Underwriters to purchase the Firm Shares on the Closing Date
or the Option Shares on the Option Closing Date, as the case may be, as provided herein is subject to the accuracy of the representations
and warranties of the Company, the performance by the Company of its covenants and other obligations hereunder and to the following
additional conditions:
(a) Post
Effective Amendments and Prospectus Filings. Notification that the Registration Statement has become effective shall be received
by the Representative not later than 4:30 p.m., New York City time, on the date of this Agreement or at such later date and time
as shall be consented to in writing by the Representative and all filings made pursuant to Rules 424, 430A, or 430B of the Rules
and Regulations, as applicable, shall have been made or will be made prior to the Closing Date in accordance with all such applicable
rules.
(b) No
Stop Orders, Requests for Information and No Amendments. (i) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall be pending or are, to the knowledge of the Company,
threatened by the Commission, (ii) no order suspending the qualification or registration of the Securities under the securities
or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or threatened
or contemplated by the authorities of any such jurisdiction, (iii) any request for additional information on the part of the staff
of the Commission or any such authorities shall have been complied with to the satisfaction of the staff of the Commission or
such authorities and (iv) after the date hereof no amendment or supplement to the Registration Statement or the Prospectus shall
have been filed unless a copy thereof was first submitted to the Representative and the Representative did not object thereto
in good faith, and the Representative shall have received certificates, dated the Closing Date and the Option Closing Date and
signed by the Chief Executive Officer or the Chairman of the Board of Directors and the Chief Financial Officer of the Company
in their capacities as such, and not individually, (who may, as to proceedings threatened, certify to their knowledge), to the
effect of clauses (i), (ii) and (iii).
(c) No
Material Adverse Changes. Since the respective dates as of which information is given in the Registration Statement and the
Prospectus, except as set forth in the Registration Statement, the General Disclosure Package and the Prospectus (i) there shall
not have been a Material Adverse Change, (ii) the Company shall not have incurred any material liabilities or obligations, direct
or contingent, (iii) the Company shall not have entered into any material transactions not in the ordinary course of business
other than pursuant to this Agreement and the transactions referred to herein, (iv) the Company shall not have issued any securities
(other than the Securities or the Shares issued in the ordinary course of business pursuant to existing employee benefit plans
of the Company referred to in the Registration Statement, General Disclosure Package and the Prospectus) or declared or paid any
dividend or made any distribution in respect of its capital stock of any class or debt (long-term or short-term), and (v) no material
amount of the assets of the Company shall have been pledged, mortgaged or otherwise encumbered.
(d) No
Actions, Suits or Proceedings. Since the respective dates as of which information is given in the Registration Statement,
the General Disclosure Package and the Prospectus, there shall have been no actions, suits or proceedings instituted, or to the
Company’s knowledge, threatened against or affecting, the Company or its subsidiaries or any of their respective officers
in their capacity as such, before or by any federal, state or local court, commission, regulatory body, administrative agency
or other governmental body, domestic or foreign.
(e) All
Representations True and Correct and All Conditions Fulfilled. Each of the representations and warranties of the Company contained
herein shall be true and correct as of the date of the Agreement and at the Closing Date as if made at the Closing Date and any
Option Closing Date, as the case may be, and all covenants and agreements contained herein to be performed by the Company and
all conditions contained herein to be fulfilled or complied with by the Company at or prior to the Closing Date and any Option
Closing Date, shall have been duly performed, fulfilled or complied with.
(f) Opinions
of Counsel to the Company. The Underwriters shall have received the opinions and letters, each dated the Closing Date and
any Option Closing Date, as the case may be, each reasonably satisfactory in form and substance to the Representative and counsel
for the Underwriters, from Xxxxxxxxx & Xxxxxxxx, LLP, as corporate/securities counsel.
(g) Accountants’
Comfort Letter. On the date of the Prospectus, the Representative shall have received from the Accountants a letter dated
the date of its delivery, addressed to the Underwriters, in form and substance reasonably satisfactory to the Representative and
counsel to the Underwriters, containing statements and information of the type ordinarily included in accountant’s “comfort
letters” to underwriters, delivered according to Statement of Auditing Standards No. 72 (or any successor bulletin), with
respect to the audited and unaudited financial statements and certain financial information contained in the Registration Statement
and the Prospectus. At the Closing Date and any Option Closing Date, as the case may be, the Representative shall have received
from the Accountants a letter dated such date, in form and substance reasonably satisfactory to the Representative and counsel
to the Underwriters, to the effect that they reaffirm the statements made in the letter furnished by them pursuant to the preceding
sentence and have conducted additional procedures with respect to certain financial figures included in the Prospectus, except
that the specified date referred to therein for the carrying out of procedures shall be no more than three business days prior
to the Closing Date or any Option Closing Date, as the case may be.
(h) Officers’
Certificates. At the Closing Date and any Option Closing Date, there shall be furnished to the Representative an accurate
certificate, dated the date of its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of
the Company, in their capacities as such, and not individually, in form and substance satisfactory to the Representative and counsel
to the Underwriters, to the effect that:
(i) each
signer of such certificate has carefully examined the Registration Statement and the Prospectus;
(ii) there
has not been a Material Adverse Change; and
(iii) with
respect to the matters set forth in Sections 5(b)(i) and 5(e).
(i) Transfer
Agent’s Certificate. The Company’s transfer agent shall have furnished or caused to be furnished to the Representative
a certificate satisfactory to the Representative of one of its authorized officers with respect to the issuance of the Shares
and such other customary matters related thereto as the Representative may reasonably request.
(j) Eligible
for DTC Clearance. At or prior to the Closing Date and each Option Closing Date, the Shares shall be eligible for clearance
and settlement through the facilities of the DTC.
(k) Compliance
with Blue Sky Laws. The Securities shall be qualified for sale in such states and jurisdictions as the Representative may
reasonably request, including, without limitation, qualification for exemption from registration or prospectus delivery requirements
in the provinces and territories of Canada and other jurisdictions outside the United States, and each such qualification shall
be in effect and not subject to any stop order or other proceeding on the Closing Date and the Option Closing Date.
(l) Stock
Exchange Listing. The Shares shall have been duly authorized for listing on the NASDAQ Capital Market, subject to official
notice of issuance.
(m) Exchange
Act Registration. One or more registration statements in respect of the Shares have been filed on Form 8-A pursuant to Section
12(b) of the Exchange Act, each of which registration statement complies in all material respects with the Exchange Act.
(n) Good
Standing. At the Closing Date and any Option Closing Date, the Company shall have furnished to the Representative satisfactory
evidence of the good standing of the Company and its subsidiaries, in their respective jurisdictions of organization (to the extent
the concept of “good standing” or such equivalent concept exists under the laws of the applicable jurisdictions) and
their good standing as foreign entities in such other jurisdictions as the Representative may reasonably request, in each case
in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions. If the
applicable jurisdiction does not have a concept of “good standing,” the Company will furnish evidence in writing or
any standard form of telecommunication from the appropriate governmental authorities that the relevant company was duly incorporated
and remains duly registered in the jurisdiction of its incorporation.
(o) Company
Certificates. The Company shall have furnished to the Representative such certificates, in addition to those specifically
mentioned herein, as the Representative may have reasonably requested as to the accuracy and completeness at the Closing Date
and any Option Closing Date of any statement in the Registration Statement, the General Disclosure Package or the Prospectus,
as to the accuracy at the Closing Date and any Option Closing Date of the representations and warranties of the Company herein,
as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent
to the obligations hereunder of the Underwriters.
(p) No
Objection. FINRA has confirmed that it has not raised any objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements relating to the offering of the Securities.
If
any of the conditions hereinabove provided for in this Section 5 shall not have been fulfilled when and as required by this Agreement
to be fulfilled, the obligations of the Underwriters hereunder may be terminated by the Representative by notifying the Company
of such termination in writing at or prior to the Closing Date or any Option Closing Date, as the case may be.
6. Indemnification.
(a) Indemnification
of the Underwriters. The Company shall indemnify and hold harmless each Underwriter, its affiliates, the directors, officers,
employees and agents of such Underwriter and each person, if any, who controls such Underwriter within the meaning of Section
15 of the Act or Section 20 of the Exchange Act from and against any and all losses, claims, liabilities, expenses and damages
(including any and all investigative, legal and other expenses reasonably incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding between any of the indemnified parties and any indemnifying parties or between any
indemnified party and any third party, or otherwise, or any claim asserted), to which they, or any of them, may become subject
under the Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as
such losses, claims, liabilities, expenses or damages arise out of or are based on (i) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or any amendment thereto), including the information deemed
to be a part of the Registration Statement at the time of effectiveness and at any subsequent time pursuant to Rules 430A and
430B of the Rules and Regulations, as applicable, 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 (ii) any untrue statement or alleged untrue statement
of a material fact contained in any preliminary prospectus, any preliminary prospectus supplement, any Issuer Free Writing Prospectus
or the Prospectus (or any amendment or supplement to any of the foregoing) 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 or (iii) any untrue statement or alleged untrue statement of a material fact contained in any materials or information
provided to investors by, or with the approval of, the Company in connection with the marketing of the offering of the Securities,
including any roadshow or investor presentations made to investors by the Company (whether in person or electronically) (collectively,
Marketing Materials”) 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 or (iv) in whole or in part
any inaccuracy in any material respect in the representations and warranties of the Company contained herein; provided,
however, that the Company shall not be liable to the extent that such loss, claim, liability, expense or damage is based
on any untrue statement or omission or alleged untrue statement or omission made in reliance on and in conformity with Underwriters’
Information. This indemnity agreement will be in addition to any liability that the Company might otherwise have.
(b) Indemnification
of the Company. Each Underwriter, severally and not jointly, agrees to indemnify and hold harmless the Company, its affiliates,
the directors, officers, employees and agents of the Company and each other person or entity, if any, who controls the Company
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, against any losses, liabilities, claims, damages
and expenses whatsoever, as incurred (including but not limited to reasonable attorneys’ fees and any and all reasonable
expenses whatsoever, incurred in investigating, preparing or defending against any litigation, commenced or threatened, or any
claim whatsoever, and any and all amounts paid in settlement of any claim or litigation), joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or otherwise, insofar as such losses, liabilities, claims, damages
or expenses (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement at the time of effectiveness and at any subsequent time pursuant to Rules
430A and 430B of the Rules and Regulations, any Preliminary Prospectus, the Prospectus, or any amendment or supplement to any
of them, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that any
such loss, liability, claim, damage or expense (or action in respect thereof) arises out of or is based upon any such untrue statement
or alleged untrue statement or omission or alleged omission made therein in reliance upon the Underwriters’ Information;
provided, however, that in no case shall any Underwriter be liable or responsible for any amount in excess of the
underwriting discount and commissions applicable to the Securities purchased by such Underwriter hereunder. The parties agree
that such information provided by or on behalf of the Underwriters through the Representative consists solely of the material
referred to in the last sentence of Section 3(c) hereof.
(c) Indemnification
Procedures. Any party that proposes to assert the right to be indemnified under this Section 6 shall, promptly after receipt
of notice of commencement of any action against such party in respect of which a claim is to be made against an indemnifying party
or parties under this Section 6, notify each such indemnifying party of the commencement of such action, enclosing a copy of all
papers served, but the omission so to notify such indemnifying party shall not relieve the indemnifying party from any liability
that it may have to any indemnified party under the foregoing provisions of this Section 6 unless, and only to the extent that,
such omission results in the forfeiture of substantive rights or defenses by the indemnifying party. If any such action is brought
against any indemnified party and it notifies the indemnifying party of its commencement, the indemnifying party will be entitled
to participate in and, to the extent that it elects by delivering written notice to the indemnified party promptly after receiving
notice of the commencement of the action from the indemnified party, jointly with any other indemnifying party similarly notified,
to assume the defense of the action, with counsel 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 out-of-pocket 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 (i) the employment of counsel by the indemnified party has been authorized in writing by one of the indemnifying
parties in connection with the defense of such action, (ii) the indemnified party has reasonably concluded (based on advice of
counsel) that there may be legal defenses available to it or other indemnified parties that are different from or in addition
to those available to the indemnifying party, (iii) the indemnified party has reasonably concluded that 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 shall not have the right to direct the defense of such action on behalf of the indemnified
party), (iv) the indemnifying party does not diligently defend the action after assumption of the defense, or (v) the indemnifying
party has not in fact employed counsel satisfactory to the indemnified party to assume the defense of such action within a reasonable
time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other
charges of counsel shall 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 shall be reimbursed by the indemnifying
party promptly as they are incurred. An indemnifying party shall not be liable for any settlement of any action or claim effected
without its written consent (which consent will not be unreasonably withheld or delayed). 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 6 (whether or not any indemnified
party is a party thereto), unless (x) such settlement, compromise or consent (i) includes an unconditional release of each indemnified
party from all liability arising or that may arise out of such claim, action or proceeding and (ii) 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, and (y) the indemnifying
party confirms in writing its indemnification obligations hereunder with respect to such settlement, compromise or judgment. Notwithstanding
the foregoing, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated
by Section 6(a) effected without its written consent if (A) such settlement is entered into more than 45 days after receipt by
such indemnifying party of the aforesaid request, (B) such indemnifying party shall have received notice of the terms of such
settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed
such indemnified party in accordance with such request prior to the date of such settlement.
(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 6 is applicable in accordance with its terms but for any reason is held to be unavailable,
the Company and the Underwriters shall 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
the Underwriters, such as persons who control the Company within the meaning of the Act, officers of the Company who signed the
Registration Statement and directors of the Company, who may also be liable for contribution), to which the Company and the Underwriter
may be subject in such proportion as shall be appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other from the offering of the Securities pursuant to this Agreement. The relative benefits received
by the Company and the Underwriters shall be deemed to be in the same proportion as (x) the total proceeds from the Offering (net
of underwriting discount and commissions but before deducting expenses) received by the Company bears to (y) the underwriting
discount and commissions received by the Underwriters, in each case as set forth in the table on the cover page of the Prospectus.
If, but only if, the allocation provided by the foregoing sentence is not permitted by applicable law, the allocation of contribution
shall be made in such proportion as is appropriate to reflect not only the relative benefits referred to in the foregoing sentence
but also the relative fault of the Company, on the one hand, and the Underwriters, on the other, with respect to the statements
or omissions which resulted in such loss, claim, liability, expense or damage, or action in respect thereof, as well as any other
relevant equitable considerations with respect to such offering. Such relative fault shall be determined by reference to whether
the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to
information supplied by the Company or the Underwriters, 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 the Underwriters agree that it would not be
just and equitable if contributions pursuant to this Section 6(d) were to be determined by pro rata allocation or by any other
method of allocation (even if the Underwriters were treated as one entity for such purpose) which 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 6(d) shall be deemed to include,
for purpose of this Section 6(d), any legal or other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the provisions of this Section 6(d), no Underwriter shall
be required to contribute any amount in excess of the underwriting discounts and commissions received by it. No person found guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes of this Section 6(d), any person who controls a party to
this Agreement within the meaning of the Act will have the same rights to contribution as that party, and each officer of the
Company who signed the Registration Statement will have the same rights to contribution as the Company, and each director, officer,
employee, counsel or agent of an Underwriter will have the same rights to contribution as such Underwriter, 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 6(d), will notify any such party or parties
from whom contribution may be sought, but the omission so to notify will not relieve the party or parties from whom contribution
may be sought from any other obligation it or they may have under this Section 6(d). The obligations of the Underwriters to contribute
pursuant to this Section 6(d) are several in proportion to the respective number of Securities to be purchased by each of the
Underwriters hereunder and not joint. No party will be liable for contribution with respect to any action or claim settled without
its written consent (which consent will not be unreasonably withheld).
(e) Survival.
The indemnity and contribution agreements contained in this Section 6 and the representations and warranties of the Company
contained in this Agreement shall remain operative and in full force and effect regardless of (i) any investigation made by or
on behalf of any Underwriter or any controlling Person thereof, (ii) acceptance of any of the Securities and payment therefor
or (iii) any termination of this Agreement.
7. Termination.
The obligations of the Underwriters under this Agreement may be terminated at any time prior to the Closing Date (or, with respect
to the Option Shares, on or prior to the Option Closing Date), by notice to the Company from the Representative, without liability
on the part of the Underwriters to the Company, if, prior to delivery and payment for the Firm Shares to be delivered in the form
of the Firm Shares (or the Option Shares), in the sole judgment of the Representative, any of the following shall occur:
(a) trading
or quotation in any of the equity securities of the Company shall have been suspended or limited by the Commission, The Nasdaq
Stock Market or by an exchange or otherwise;
(b) trading
in securities generally on the New York Stock Exchange, the NYSE MKT, the NASDAQ Capital Market, the NASDAQ Global Market, the
NASDAQ Global Select Market shall have been suspended or limited or minimum or maximum prices shall have been generally established
on such exchange, or additional material governmental restrictions, not in force on the date of this Agreement, shall have been
imposed upon trading in securities generally by such exchange or by order of the Commission or any court or other governmental
authority;
(c) a
general banking moratorium shall have been declared by any of U.S. federal, New York authorities;
(d) the
United States shall have become engaged in new hostilities, there shall have been an escalation in hostilities involving the United
States or there shall have been a declaration of a national emergency or war by the United States or there shall have occurred
such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result
of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the United
States shall be such), or any other calamity or crisis shall have occurred, the effect of any of which is such as to make it impracticable
or inadvisable to market the Securities on the terms and in the manner contemplated by the Prospectus;
(e) the
Company shall have sustained a loss material or substantial to the Company by reason of flood, fire, accident, hurricane, earthquake,
theft, sabotage, or other calamity or malicious act, whether or not such loss shall have been insured, the effect of any of which
is such as to make it impracticable or inadvisable to market the Securities on the terms and in the manner contemplated by the
Prospectus; or
(f) there
shall have been a Material Adverse Change.
8. Underwriter
Default.
(a) If
any Underwriter or Underwriters shall default in its or their obligation to purchase Firm Shares hereunder, and if the Securities
with respect to which such default relates (the “Default Securities”) do not (after giving effect to arrangements,
if any, made by the Representative pursuant to subsection (b) below) exceed in the aggregate 10% of the number of Firm Shares,
each non-defaulting Underwriter, acting severally and not jointly, agrees to purchase from the Company that number of Default
Securities that bears the same proportion to the total number of Default Securities then being purchased as the number of Firm
Shares set forth opposite the name of such Underwriter on Schedule A hereto bears to the aggregate number of Firm Shares
set forth opposite the names of the non-defaulting Underwriters; subject, however, to such adjustments to eliminate fractional
securities as the Representative in its discretion shall make.
(b) In
the event that the aggregate number of Default Securities exceeds 10% of the number of Firm Shares, the Representatives may in
their discretion arrange for themselves or for another party or parties (including any non-defaulting Underwriter or Underwriters
who so agree) to purchase the Default Securities on the terms contained herein. In the event that within five (5) calendar days
after such a default the Representative does not arrange for the purchase of the Default Securities as provided in this Section
8, this Agreement shall thereupon terminate, without liability on the part of the Company with respect thereto (except in each
case as provided in Sections 4(k), 6 and 8) or the Underwriters, but nothing in this Agreement shall relieve a defaulting Underwriter
or Underwriters of its or their liability, if any, to the other Underwriters and the Company for damages occasioned by its or
their default hereunder.
(c) In
the event that any Default Securities are to be purchased by the non-defaulting Underwriters, or are to be purchased by another
party or parties as aforesaid, the Representatives or the Company shall have the right to postpone the Closing Date for a period,
not exceeding five (5) Business Days, in order to effect whatever changes may thereby be necessary in the Registration Statement
or the Prospectus or in any other documents and arrangements, and the Company agrees to file promptly any amendment or supplement
to the Registration Statement or the Prospectus which, in the reasonable opinion of Underwriters’ Counsel, may be necessary
or advisable. The term “Underwriter” as used in this Agreement shall include any party substituted under this Section
8 with like effect as if it had originally been a party to this Agreement with respect to such Firm Shares.
9. Miscellaneous.
(a) Notices.
Notice given pursuant to any of the provisions of this Agreement shall be in writing and, unless otherwise specified, shall
be mailed, hand delivered or telecopied (a) if to the Company, at the office of the Company, 0000 Xxxxxxxx Xxxxxx, Xxxxxxxxxxxxx,
Xxxxxxx 00000, telephone number: (000) 000-0000, Attention: Chief Executive Officer, or (b) if to the Representative or any Underwriter,
to Maxim Group LLC, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 000000, Attention: Legal Department, telecopy number: (000) 000-0000.
Any such notice shall be effective only upon receipt. Any notice under Section 6 hereof may be made by telecopy or telephone,
but if so made shall be subsequently confirmed in writing.
(b) No
Third Party Beneficiaries. This Agreement has been and is made solely for the benefit of the Underwriters, the Company and,
with respect to Section 6, the controlling persons, directors, officers, employees, counsel and agents referred to in Section
6 hereof, and their respective successors and assigns, and no other person shall acquire or have any right under or by virtue
of this Agreement. The term “successors and assigns” as used in this Agreement shall not include a purchaser of Securities
from any Underwriter in his, her or its capacity as such a purchaser, as such purchaser of Securities from such Underwriter.
(c) Survival
of Representations and Warranties. All representations, warranties and agreements of the Company contained herein or in certificates
or other instruments delivered pursuant hereto shall remain operative and in full force and effect regardless of any investigation
made by or on behalf of the Underwriters or any of their controlling persons and shall survive delivery of and payment for the
Securities hereunder.
(d) Disclaimer
of Fiduciary Relationship. The Company acknowledges and agrees that (i) the purchase and sale of the Securities pursuant to
this Agreement, including the determination of the public offering price of the Securities and any related discounts and commissions,
is an arm’s-length commercial transaction between the Company, on the one hand, and the Underwriters, on the other hand,
(ii) in connection with the Offering contemplated by this Agreement and the process leading to such transaction, the Underwriters
are and have been acting pursuant to a contractual relationship created solely by this Agreement and are not agents or fiduciaries
of the Company or its securityholders, creditors, employees or any other party, (iii) no Underwriter has assumed nor will it assume
any advisory or fiduciary responsibility in favor of the Company with respect to the offering of the Securities contemplated by
this Agreement or the process leading thereto (irrespective of whether such Underwriter or its affiliates has advised or is currently
advising the Company on other matters) and each such Underwriter has no obligation to the Company with respect to the offering
of the Securities contemplated by this Agreement except the obligations expressly set forth in this Agreement, (iv) the Underwriters
and their affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Company,
and (v) no Underwriter has provided any legal, accounting, regulatory or tax advice with respect to the Offering contemplated
by this Agreement and the Company has consulted its own legal, accounting, regulatory and tax advisors to the extent it deemed
appropriate.
(e) Governing
Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.
(f) Submission
to Jurisdiction. The Company irrevocably submits to the non-exclusive jurisdiction of any New York State or United States
federal court sitting in The City of New York, Borough of Manhattan, over any suit, action or proceeding arising out of or relating
to this Agreement, the Disclosure Package, the Prospectus, the Registration Statement, or the offering of the Securities. The
Company irrevocably waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying
of venue of any such suit, action or proceeding brought in such a court and any claim that any such suit, action or proceeding
brought in such a court has been brought in an inconvenient forum. To the extent that the Company has or hereafter may acquire
any immunity (on the grounds of sovereignty or otherwise) from the jurisdiction of any court or from any legal process with respect
to itself or its property, the Company irrevocably waives, to the fullest extent permitted by law, such immunity in respect of
any such suit, action or proceeding including without limitation, any immunity pursuant to the U.S. Foreign Sovereign Immunities
Act of 1976, as amended. Each of the Underwriters and the Company further agrees to accept and acknowledge service of any and
all process which may be served in any such suit, action or proceeding in the Supreme Court of the State of New York, New York
County, or in the United States District Court for the Southern District of New York and agrees that service of process upon the
Company mailed by certified mail or delivered by Federal Express via overnight delivery to the Company’s address shall be
deemed in every respect effective service of process upon the Company in any such suit, action or proceeding, and service of process
upon an Underwriter mailed by certified mail or delivered by Federal Express via overnight delivery to the Underwriters’
address shall be deemed in every respect effective service of process upon such Underwriter in any such suit, action or proceeding.
(g) Judgment
Currency. If for the purposes of obtaining judgment in any court it is necessary to convert a sum due hereunder into any currency
other than United States dollars, the parties hereto agree, to the fullest extent permitted by law, that the rate of exchange
used shall be the rate at which in accordance with normal banking procedures the Underwriters could purchase United States dollars
with such other currency in The City of New York on the business day preceding that on which final judgment is given. The obligation
of the Company with respect to any sum due from it to an Underwriter or any person controlling such Underwriter shall, notwithstanding
any judgment in a currency other than United States dollars, not be discharged until the first business day following receipt
by such Underwriter or controlling person of any sum in such other currency, and only to the extent that such Underwriter or controlling
person may in accordance with normal banking procedures purchase United States dollars with such other currency. If the United
States dollars so purchased are less than the sum originally due to such Underwriter or controlling person hereunder, the Company
agrees as a separate obligation and notwithstanding any such judgment, to indemnify such Underwriter or controlling person against
such loss. If the United States dollars so purchased are greater than the sum originally due to such Underwriter or controlling
person hereunder, such Underwriter or controlling person agrees to pay to the Company an amount equal to the excess of the dollars
so purchased over the sum originally due to such Underwriter or controlling person hereunder.
(h) Counterparts.
This Agreement may be signed in two or more counterparts with the same effect as if the signatures thereto and hereto were
upon the same instrument.
(i) Survival
of Provisions Upon Invalidity of Any Single Provision. In case any provision in this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired
thereby.
(j) Waiver
of Jury Trial. The Company and each Underwriter each hereby irrevocably waive any right they may have to a trial by jury in
respect of any claim based upon or arising out of this Agreement or the transactions contemplated hereby.
(k) Titles
and Subtitles. The titles of the sections and subsections of this Agreement are for convenience and reference only and are
not to be considered in construing this Agreement.
(l) Entire
Agreement. This Agreement embodies the entire agreement and understanding between the parties hereto and supersedes all prior
agreements and understandings relating to the subject matter hereof. This Agreement may not be amended or otherwise modified or
any provision hereof waived except by an instrument in writing signed by the parties hereto.
[Signature
page follows]
If
the foregoing correctly sets forth your understanding, please so indicate in the space provided below for that purpose, whereupon
this letter shall constitute a binding agreement among us.
| |
Very
truly yours, |
| |
|
| |
BOXLIGHT
CORPORATION |
| |
|
| |
By: |
/s/
Xxxxxxx Xxxx |
| |
Name: |
Xxxxxxx
Xxxx |
| |
Title: |
Chief
Executive Officer |
Accepted
by the Representatives, acting for themselves and as
Representatives
of the Underwriters named on Schedule A hereto,
as
of the date first written above:
| Maxim
Group LLC |
|
|
|
| By: |
/s/
Xxxxxxxx X. Xxxxxx |
|
| Name: |
Xxxxxxxx
X. Xxxxxx |
|
| Title: |
Executive
Managing Director, Investment Banking |
|
SCHEDULE
A
| Name of Underwriter | |
Number of Firm
Shares Being
Purchased | | |
Number of
Option Shares | |
| Maxim Group LLC | |
| 15,000,000 | | |
| 2,250,000 | |
| Total | |
| 15,000,000 | | |
| 2,250,000 | |
Schedule
I
ISSUER
FREE WRITING PROSPECTUSES:
Schedule
II
| 1. | The
public offering price per Firm Share shall be $2.00. |
| | |
| 2. | The
Company is selling 15,000,000 Firm Shares. |
| | |
| 3. | The
Company has granted an option to the Representative, on behalf of the Underwriters, to
purchase up to an additional 2,250,000 Firm Shares. |
