Exhibit 1A-1
UNDERWRITING
AGREEMENT
________________, 2021
Network 1 Financial Securities, Inc.
The Galleria, Penthouse
0 Xxxxxx Xxxxxx, Xxxxxxxx 0
Xxx Xxxx, XX 00000
As Representative of the several
Underwriters named on Schedule I attached hereto
Ladies and Gentlemen:
Prometheum,
Inc., a Delaware corporation (the “Company”), confirms its agreement with each of the Underwriters listed on
Schedule I hereto (collectively, the “Underwriters”), for whom Network 1 Financial Securities,
Inc., is acting as representative (in such capacity, the “Representative”), with respect to (i) the sale
by the Company of 6,250,000 shares of Common Stock, par value $0.00001 per share (the “Common Stock”), of the
Company, and the purchase by the Underwriters, acting severally and not jointly, of the respective number of shares of Common
Stock set forth opposite the names of the Underwriters in Schedule I hereto (the “Firm Shares”),
and (ii) the grant of the option described in Section 1(c) hereof to purchase all or any part of 937,500
additional shares of Common Stock to cover over-allotments (the “Option Shares”), if any, from the Company,
to the Underwriters, acting severally and not jointly, in the respective numbers of shares of Common Stock set forth opposite
the names of each of the Underwriters listed in Schedule I hereto. The Firm Shares to be purchased by the Underwriters
and all or any part of the Option Shares subject to the option described in Section 1(c) hereof are hereinafter
called, collectively, the “Shares.”
The Company
understands that the Underwriters propose to make a public offering of the Shares as soon as the Underwriters deem advisable after
this Underwriting Agreement (the “Agreement”) has been executed and delivered.
The Company has
filed with the Securities and Exchange Commission (the “Commission”) an offering statement on Form 1-A
(No. 024-10760), including a related preliminary offering circular, relating to the Shares pursuant to Regulation A
under the Securities Act of 1933, as amended (the “Securities Act”), and the other applicable rules and regulations
thereunder (including Regulation A, the “Securities Act Regulations”). The Company has prepared and filed
such amendments to the offering statement and such amendments or supplements to the related preliminary offering circular as may
have been required to the date hereof and will file such additional amendments or supplements as may hereafter be required. The
offering statement has been qualified under the Securities Act by the Commission. The offering statement, as amended at the time
it was qualified by the Commission (and, if the Company files a post-qualification amendment to such offering statement that is
qualified prior to the Closing Time (as defined below), such offering statement as so amended) and including all information
deemed to be a part of the offering statement pursuant to incorporation by reference or otherwise or omitted from the offering
circular pursuant to Rule 253(b) of Regulation A, is hereinafter called the “Offering Statement.”
The term “Offering Statement” shall also include any new offering statement filed with the Commission pursuant
to Regulation A for the purpose of adding additional securities to be offered in connection with the offering of the Shares.
Each offering circular included in the Offering Statement before it was qualified by the Commission under the Securities Act,
including the initial offering circular filed by the Company and any other preliminary form of offering circular filed with the
Commission by the Company with the consent of the Underwriters, including all information incorporated by reference in either
such offering circular, is hereinafter called the “Preliminary Offering Circular.” The term “Offering
Circular” means the final offering circular, as first filed with the Commission pursuant to paragraph (1) or (3) of
Rule 253(g) of Regulation A, and any amendments thereof or supplements thereto as contemplated by Rule 261(e) of
Regulation A, including all information incorporated by reference therein.
The Commission
has not issued any order preventing or suspending the use of any Preliminary Offering Circular.
The term
“Disclosure Package” means (i) the Preliminary Offering Circular, as most recently amended or supplemented
immediately prior to the Initial Sale Time (as defined herein), (ii) the Testing-the-Waters Communications (as defined below),
if any, identified in Schedule II hereto, and (iii) any other Testing-the-Waters Communication (as defined below) used
pursuant to Rule 255 of Regulation A but not required to be filed as an exhibit to the Offering Statement but which
the parties hereto shall hereafter expressly agree to treat as part of the Disclosure Package.
The term
“Testing-the-Waters Communication” means any oral (including video) or written (including electronic) communication
with potential investors undertaken in reliance on Rule 255 of Regulation A.
The Company
and the Underwriters agree as follows:
| 1. | Purchase
and Sale of Shares. |
| (i) | Nature
and Purchase of Shares. |
| (ii) | On
the basis of the representations and warranties herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to issue and sell to the several
Underwriters an aggregate of 6,250,000 shares of Common Stock. The 6,250,000 Shares referred
to in this Section 1(a) are hereinafter referred to as the “Firm
Shares.” |
| (iii) | On
the basis of the representations and warranties herein contained, but subject to the terms
and conditions herein set forth, the Underwriters, severally and not jointly, agree to purchase
from the Company the number of Firm Shares set forth opposite their respective names on Schedule I
attached hereto and made a part hereof at a purchase price of $5.55 (the “Purchase
Price”) per Firm Share (92.5% of the public offering price per Firm
Share). The Firm Shares are to be offered initially to the public at the offering price set
forth on the cover page of the Offering Circular. |
| (b) | Share
Payment and Delivery. |
| (i) | Delivery
and payment for the Firm Shares shall be made no later than 2:00 p.m., Eastern Time,
on the second (2nd) Business Day (as defined in Section 1(b)(ii)
below) following the Qualification Date (the “Qualification Date”) of
the Offering Statement (or the third (3rd) Business Day following the Qualification
Date if the Offering Statement is qualified after 4:01 p.m., Eastern Time) or at
such earlier time as shall be agreed upon by the Representative and the Company, at the
offices of Carmel, Xxxxxxx & Xxxx, LLP (“Representative Counsel”),
or at such other place (or by electronic transmission) as shall be agreed upon by
the Representative and the Company. The date of delivery and payment for the Firm
Shares is called the “Closing Time.” |
| (ii) | Payment
for the Firm Shares shall be made at the Closing Time by wire transfer in federal (same
day) funds, payable to the order of the Company upon delivery of the certificates
(in form and substance satisfactory to the Underwriters) representing the Firm Shares
(or through the facilities of the Depository Trust Company (“DTC”) or
via DWAC transfer), for the account of the Underwriters. The Firm Shares shall be registered
in such name or names and in such authorized denominations as the Representative may
request in writing no less than one (1) Business Day prior to the Closing Date.
The Company shall not be obligated to sell or deliver the Firm Shares except upon tender
of payment by the Representative for all of the Firm Shares. The term “Business
Day” means any day other than a Saturday, a Sunday, or a legal holiday or a
day on which banking institutions are authorized or obligated by law to close in New
York, New York. |
| (c) | Over-allotment
Option. |
| (i) | Option
Shares. For the purposes of covering any over-allotments in connection with
the distribution and sale of the Firm Shares, the Company hereby grants to the Underwriters
an option (the “Over-allotment Option”) to purchase, in the aggregate,
up to 937,500 additional Shares (the “Option Shares”), representing
fifteen percent (15%) of the Firm Shares sold in the offering, from the Company.
The purchase price to be paid per Option Share shall be equal to the Purchase Price,
subject to the proviso set forth in Section 1(a)(iii). The Firm
Shares and the Option Shares are collectively referred to as the “Shares.”
The Shares shall be issued directly by the Company and shall have the rights and privileges
described in the Offering Statement, the Disclosure Package, and the Offering Circular
referred to below. The offering and sale of the Shares are herein referred to as the
“Offering.” |
| (ii) | Exercise
of Over-allotment Option. The Over-allotment Option granted pursuant to Section
1(c) hereof may be exercised by the Representative as to all (at any time) or
any part (one time) for any number of the Option Shares within forty-five (45) days
after the Closing Date. The Underwriters shall not be under any obligation to purchase
any Option Shares prior to the Over-allotment Option exercise. The Over-allotment Option
granted hereby may be exercised by the giving of oral notice to the Company from the
Representative, which must be confirmed in writing by overnight mail or email or other
electronic transmission setting forth the number of the Option Shares to be purchased
and the date and time for delivery of and payment for the Option Shares (the “Option
Closing Time”), which shall not be later than five (5) full Business Days
after the date of the notice or such other time as shall be agreed upon by the Company
and the Representative, at the offices of Representative’s Counsel, or at such
other place (including remotely by facsimile or other electronic transmissions) as
shall be agreed upon by the Company and the Representative. If such delivery and payment
for the Option Shares do not occur at the Closing Time, the Option Closing Date will
be as set forth in the notice. Upon exercise of the Over-allotment Option with respect
to all or any portion of the Option Shares subject to the terms and conditions set forth
herein, (i) the Company shall become obligated to sell to the Underwriters the number
of the Option Shares specified in such notice and (ii) each of the Underwriters,
acting severally and not jointly, shall purchase that portion of the total number of
the Option Shares then being purchased as set forth in Schedule I opposite
the name of such Underwriter. |
| (iii) | Payment
and Delivery. Payment for the Option Shares shall be made at the Option Closing Time
by wire transfer in federal (same day) funds, payable to the order of the Company
upon delivery to the Underwriters of certificates (in form and substance satisfactory
to the Underwriters) representing the Option Shares (or through the facilities of
DTC or DWAC transfer) for the account of the Underwriters. The Option Shares shall
be registered in such name or names and in such authorized denominations as the Representative
may request in writing at least one (1) Business Day prior to the Option Closing
Date. The Company shall not be obligated to sell or deliver the Option Shares except
upon tender of payment by the Representative for applicable Option Shares. |
| 2. | Representations
and Warranties of the Company. The Company, on behalf of itself and its Subsidiaries (as defined Section 2(nnn)(i) below) and Affiliate (as defined in Section 2(ppp) below) represents and warrants to the Underwriters as of the date hereof, the Initial Sale Time (as defined below), as of the Closing Date and as of any Option Closing Date (if any), and agrees with each Underwriter, that: |
| (a) | the
Company has the authorized capitalization as set forth in both the Offering Circular
and the Disclosure Package; the outstanding shares of capital stock of the Company have
been duly and validly authorized and issued and are fully paid and non-assessable. Except
as disclosed in both the Offering Circular and the Disclosure Package, there are no outstanding
(i) securities or obligations of the Company convertible into or exchangeable for
any capital stock of the Company, (ii) warrants, rights or options to subscribe
for or purchase from the Company any such capital stock or any such convertible or exchangeable
securities or obligations, or (iii) obligations of the Company to issue any shares
of capital stock, any such convertible or exchangeable securities or obligation, or any
such warrants, rights or options; |
| (b) | the
Company and is validly existing as a corporation in good standing under the laws of the
State of Delaware with full power and authority to execute and deliver this Agreement
and to consummate the transactions contemplated herein, and to own its properties and
to conduct its business as described in each of the Offering Statement, the Offering
Circular and the Disclosure Package; |
| (c) | the
Company is duly qualified or licensed and is in good standing in each jurisdiction in
which it conducts its businesses or in which it owns or leases real property or otherwise
maintains an office and in which the failure, individually or in the aggregate, to be
so qualified or licensed would have a material adverse effect on the assets, business,
operations, earnings, prospects, properties or condition (financial or otherwise), present
or prospective, of the Company (any such effect or change, where the context so requires,
is hereinafter called a “Material Adverse Effect” or “Material
Adverse Change”); |
| (d) | the
Company is in compliance in all material respects with all applicable laws, rules, regulations,
orders, decrees, and judgments, including those relating to transactions with affiliates; |
| (e) | the
Company is not in breach of or in default under (nor has any event occurred which with notice,
lapse of time, or both would constitute a breach by the Company of, or default by the Company
under), (i) its charter or bylaws (the “Organizational Documents”),
(ii) the performance or observance of any obligation, agreement, covenant or condition
contained in any license, indenture, mortgage, deed of trust, loan or credit agreement or
other agreement or instrument to which the Company is a party or by which its properties
are bound, or (iii) any federal, state, local or foreign law, regulation or rule or
any decree, judgment, permit or order (each, a “Law”) applicable
to the Company, except, in the case of clauses (ii) and (iii) above, for such breaches
or defaults which would not, individually or in the aggregate, have a Material Adverse Effect; |
| (f) | the
execution, delivery and performance of this Agreement, and consummation of the transactions
contemplated herein will not (i) conflict with, or result in any breach of, or constitute
a default under (nor constitute any event which with notice, lapse of time, or both would
constitute a breach of, or default under), (A) any provision of the Organizational
Documents, or (B) any provision of any license, indenture, mortgage,
deed of trust, loan or credit agreement or other agreement or instrument to which the Company
is a party or by which its properties may be bound or affected, or under any federal, state,
local or foreign Law applicable to the Company, except in the case of this clause (B) for
such breaches or defaults which could not, individually or in the aggregate, have a Material
Adverse Effect; or (ii) result in the creation or imposition of any lien, charge, claim
or encumbrance upon any property or asset of the Company, which lien, charge, claim or encumbrance
would result in a Material Adverse Effect; |
| (g) | this
Agreement has been duly authorized, executed, and delivered by the Company and is a legal,
valid and binding agreement of the Company enforceable in accordance with its terms,
except as may be limited by bankruptcy, insolvency, reorganization, moratorium, or similar
laws affecting creditors’ rights generally, and by general equitable principles,
and except to the extent that the indemnification and contribution provisions of Section 11 hereof may be limited by federal or state securities laws and public policy considerations
in respect thereof; |
| (h) | no
approval, authorization, consent or order of or filing with any federal, state, local
or foreign governmental or regulatory commission, board, body, authority or agency is
required in connection with the Company’s execution, delivery and performance of
this Agreement, its consummation of the transactions contemplated herein, and its sale
and delivery of the Shares and the Representative’s Securities, other than (i) such
as have been obtained, or will have been obtained at the Closing Date or the relevant
Option Closing Time, as the case may be, under the Securities Act and the Securities
Exchange Act of 1934, as amended (the “Exchange Act”) or the
rules and regulations thereunder (the “Exchange Act Regulations”),
(ii) such approvals as have been obtained in connection with the approval of the
listing of the Shares on the Nasdaq Capital Markets and (iii) any necessary qualification
under the securities or blue sky laws of the various jurisdictions in which the Shares
are being offered by the Underwriters; |
| (i) | the
Company has all necessary licenses, authorizations, consents and approvals and has made
all necessary filings required under any federal, state, local or foreign law, regulation
or rule, and has obtained all necessary authorizations, consents and approvals from other
persons, required in order to conduct its business as described in both the Offering
Circular and the Disclosure Package, except to the extent that any failure to have any
such licenses, authorizations, consents or approvals, to make any such filings or to
obtain any such authorizations, consents or approvals would not, individually or in the
aggregate, have a Material Adverse Effect; the Company is not required by any applicable
law to obtain accreditation or certification from any governmental agency or authority
in order to provide the products and services which it currently provides or which it
proposes to provide as set forth in both the Offering Circular and the Disclosure Package;
the Company is not in violation of, in default under, nor has it received any notice
regarding a possible violation, default or revocation of any such license, authorization,
consent or approval or any federal, state, local or foreign law, regulation or rule or
any decree, order or judgment applicable to the Company the effect of which could result
in a Material Adverse Change; and no such license, authorization, consent or approval
contains a materially burdensome restriction that is not disclosed in each of the Offering
Circular and the Disclosure Package; |
| (j) | the
Offering Statement has been qualified under the Securities Act, and no stop order suspending
the qualification or use of the Offering Statement has been issued under the Securities
Act, and no order suspending the Regulation A exemption with respect to the offering
of the Shares has been issued under Rule 258 of Regulation A, and no proceedings
for any such purpose have been instituted or are pending or, to the knowledge of the
Company, are contemplated or threatened by the Commission; and the Company has complied
to the Commission’s satisfaction with any request on the part of the Commission
for additional information with respect to the Offering Statement; |
| (k) | the
Preliminary Offering Circular when filed and the Offering Statement as of its qualification
date and as of the date hereof complied or will comply, and the Offering Circular and
any further amendments or supplements to the Offering Statement, the Preliminary Offering
Circular or the Offering Circular will, when they become qualified or are filed with
the Commission, as the case may be, comply, in all material respects with the requirements
of the Securities Act and the Securities Act Regulations; |
| (l) | the
Offering Statement, as of its qualification date and as of the date hereof, did not,
does not and will not contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the statements therein
not misleading; and the Preliminary Offering Circular does not, and the Offering Circular
or any amendment or supplement thereto will not, as of the applicable filing date, the
date hereof and at the Closing Time and on each Option Closing Time (if any), contain
an untrue statement of a material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Company makes no warranty
or representation with respect to any statement contained in or omitted from the Offering
Statement, the Preliminary Offering Circular or the Offering Circular in reliance upon
and in conformity with the information concerning the Underwriters and furnished in writing
by or on behalf of the Underwriters through the Representative to the Company expressly
for use therein. |
| (m) | as
of [●]:00 [am/pm] (EDT) on the date of this Agreement (the “Initial
Sale Time”), the Disclosure Package did not, and at the time of each sale of
Shares and at the Closing Time and each Option Closing Time, the Disclosure Package will
not, contain any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; as of its issue date or date of first use
and at all subsequent times through the Initial Sale Time, each Testing-the-Waters Communication
did not, and at the time of each sale of Shares and at the Closing Time and each Option
Closing Time, each such Testing-the-Waters Communication will not, contain any untrue
statement of a material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Company makes no warranty
or representation with respect to any statement contained in or omitted from the Disclosure
Package in reliance upon and in conformity with the information concerning the Underwriters
and furnished in writing by or on behalf of the Underwriters through the Representative
to the Company expressly for use therein; |
| (n) | each
Testing-the-Waters Communication, if any, as of its issue date and at all subsequent
times through the completion of the public offer and sale of the Shares did not, does
not, and will not include any information that conflicted, conflicts, or will conflict
with the information contained in the Offering Statement, including any document incorporated
by reference therein that has not been superseded or modified; |
| (o) | except
for the Testing-the-Waters Communications identified in Schedule II hereto,
and any electronic road show relating to the public offering of shares contemplated herein
(to the extent the same may constitute a Testing-the-Waters Communication), the Company
has not prepared, used, or referred to, and will not, without the prior consent of the
Representative, prepare, use or refer to, any Testing-the-Waters Communication; |
| (p) | the
Preliminary Offering Circular, the Offering Circular and any Testing-the-Waters Communications
(to the extent any such Testing-the-Waters Communication was required to be filed with
the Commission) delivered to the Underwriters for use in connection with the public
offering of the Shares contemplated herein have been and will be identical to the versions
of such documents transmitted to the Commission for filing via the Electronic Data Gathering
Analysis and Retrieval System (“XXXXX”), except to the extent permitted
by Regulation S-T; |
| (q) | the
Company (i) has not alone engaged in any Testing-the-Waters Communications other
than Testing-the-Waters Communications disclosed to or undertaken with the Representative's
consent and (ii) has not authorized anyone other than the Representative to engage
in Testing-the-Waters Communications. Each Testing-the-Waters Communication used by the
Company (i) at the time of each use thereof, met the requirements of, and was used
by the Company in compliance with, Rule 255 of Regulation A, and (ii) has
been filed as an exhibit to the Offering Statement as required by Item 17 of Form 1-A; |
| (r) | from
the time of initial filing of the Offering Statement relating to the Shares with the
Commission through the date hereof, the Company has been and is an “emerging growth
company” as defined in Section 2(a)(19) of the Securities Act, was and
will be a “smaller reporting company,” as defined in Rule 12b-2 under
the Exchange Act and Rule 405 under the Securities Act. |
| (s) | neither
the Company, nor any predecessor of the Company, nor any other issuer affiliated with
the Company, nor any director or executive officer of the Company, Subsidiaries, Affiliate
or other officer of the Company participating in the offering, nor any beneficial owner
of 20% or more of the Company’s outstanding voting equity securities, nor any promoter
connected with the Company, is subject to the disqualification provisions of Rule 262
of Regulation A; |
| (t) | the
Company is not currently subject to the ongoing reporting requirements of Section 13
or 15(d) of the Exchange Act and has not been subject to an order of the Commission
denying, suspending, or revoking the registration of any class of securities pursuant
to Section 12(j) of the Exchange Act that was entered within five years preceding
the date the Offering Statement was originally filed with the Commission. The Company
is not, and has not been at any time during the two-year period preceding the date the
Offering Statement was originally filed with the Commission, required to file with the
Commission the ongoing reports required by Rule 257 of Regulation A; |
| (u) | there
are no actions, suits, proceedings, inquiries or investigations pending or, to the knowledge
of the Company, threatened against the Company, Subsidiaries, Affiliate or any of their
respective officers and directors or to which the properties, assets or rights of any
such entity are subject, at law or in equity, before or by any federal, state, local
or foreign governmental or regulatory commission, board, body, authority, arbitral panel
or agency which could result in a judgment, decree, award or order having a Material
Adverse Effect; |
| (v) | the
consolidated financial statements, including the notes thereto, included in each of the
Offering Statement, the Offering Circular and the Disclosure Package present fairly the
financial position of the Company as of the dates indicated and the results of operations
and changes in financial position and cash flows of the Company for the periods specified;
such financial statements have been prepared in conformity with generally accepted accounting
principles as applied in the United States and on a consistent basis during the periods
involved and in accordance with Part F/S of Regulation A and the applicable provisions
of Regulation S-X promulgated by the Commission; no other financial statements or
supporting schedules are required to be included in the Offering Statement, the Offering
Circular or the Disclosure Package; |
| (w) | subsequent
to the respective dates as of which information is given in each of the Offering Statement,
the Offering Circular and the Disclosure Package, and except as may be otherwise stated
in such documents, there has not been (i) any Material Adverse Change or any development
that would reasonably be expected to result in a Material Adverse Change, whether or
not arising in the ordinary course of business, (ii) any transaction that is material
to the Company, contemplated or entered into by the Company, (iii) any obligation,
contingent or otherwise, directly or indirectly incurred by the Company that is material
to the Company or (iv) any dividend or distribution of any kind declared, paid or
made by the Company on any class of its capital stock; |
| (x) | the
Shares and Representative’s Securities conform in all material respects to the
description thereof contained in the Offering Statement, the Offering Circular and the
Disclosure Package; this Agreement conforms in all material respects to the description
thereof contained in the Offering Statement, the Disclosure Package and the Offering
Circular; |
| (y) | except
as disclosed in both the Offering Circular and the Disclosure Package, there are no persons
with registration or other similar rights to have any equity or debt securities, including
securities which are convertible into or exchangeable for equity securities, included
in the offering covered by the Offering Statement or otherwise registered or qualified
by the Company under the Securities Act, except for those registration or similar rights
which have been waived with respect to the offering contemplated by this Agreement, all
of which registration or similar rights are fairly summarized in both the Offering Circular
and the Disclosure Package; |
| (z) | the
Shares have been duly authorized and, when issued and duly delivered against payment therefor
as contemplated by this Agreement, will be validly issued, fully paid and non-assessable,
free and clear of any pledge, lien, encumbrance, security interest or other claim, and the
issuance and sale of the Shares by the Company is not subject to preemptive or other similar
rights arising by operation of law, under the Organizational Documents or under any agreement to which the Company is a party or otherwise; |
| (aa) | the
Representative’s Warrants have been duly authorized and, when issued and duly delivered
against payment therefor as contemplated by this Agreement, will be free and clear of any
pledge, lien, encumbrance, security interest or other claims, and the issuance and sale of
the Representative’s Warrants by the Company is not subject to preemptive or other
similar rights arising by operation of law, under the Organizational Documents or
under any agreement to which the Company is a party or otherwise; |
| (bb) | the
Representative’s Warrant Shares have been duly authorized and, when issued and duly
delivered against payment therefor as contemplated by the Representative’s Warrants,
will be free and clear of any pledge, lien, encumbrance, security interest or other claims,
and the issuance and sale of the Representative’s Warrant Shares by the Company is
not subject to preemptive or other similar rights arising by operation of law, under the
Organizational Documents or under any agreement to which the Company
is a party or otherwise; |
| (cc) | the
Shares and Representative’s Warrant Shares have been approved for listing on the
Nasdaq Capital Market (the “Exchange”), subject to official notice
of issuance; the Company has taken all necessary actions to ensure that, upon and at
all times after the Exchange shall have approved the Shares and Representative’s
Warrant Shares for listing, it will be in compliance with all applicable corporate governance
requirements set forth in the Exchange’s listing standards that are then in effect
and is taking such steps as are necessary to ensure that it will be in compliance with
other corporate governance requirements set forth in the Exchange’s listing standards
not currently applicable to the Company from and after the date such requirements become
applicable to the Company; |
| (dd) | neither
the Company, its directors or officers nor, to the knowledge of the Company, any of its
representatives or affiliates have taken, nor will take, directly or indirectly, any
action which is designed to or which has constituted or which might reasonably be expected
to cause or result in stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares; |
| (ee) | other
than the Company’s Subsidiaries (as defined below), none of the Company, nor, to
the knowledge of the Company, any 5% or greater stockholder of the Company or any beneficial
owner of the Company’s unregistered equity securities that were acquired during
the 180 days immediately preceding the filing of the Offering Statement, or any of their
respective affiliates, (i) is required to register as a “broker” or
“dealer” in accordance with the provisions of the Exchange Act, or the rules
and regulations thereunder, or (ii) directly, or indirectly through one or more
intermediaries, controls or has any other association with (within the meaning of Article
I of the Bylaws of the National Association of Securities Dealers, Inc.) any member
firm of the Financial Industry Regulatory Authority (“FINRA”); |
| (ff) | none
of the net proceeds of the Offering will be paid by the Company to any participating
FINRA member or its affiliates, except as specifically set forth herein. |
| (gg) | any
certificate signed by any officer of the Company delivered to the Representative or to
counsel for the Underwriters pursuant to or in connection with this Agreement shall be
deemed a representation and warranty by the Company to each Underwriter as to the matters
covered thereby; |
| (hh) | the
form of certificate used to evidence the Common Stock complies in all material respects with
all applicable statutory requirements, with any applicable requirements of the Organizational
Documents and the requirements of the Exchange; |
| (ii) | the
Company has (i) legal, valid and defensible title to its assets described in the
Disclosure Package, the Offering Circular and the Offering Statement, (ii) good
and marketable title in fee simple to all real property, and (iii) good title to
all personal property owned by them, in each case free and clear of all liens, security
interests, pledges, charges, encumbrances, mortgages and defects, except such as are
disclosed in both the Offering Circular and the Disclosure Package or such as do not
materially and adversely affect the value of such property and do not interfere with
the use made or proposed to be made of such property by the Company; and any real property
and buildings held under lease by the Company are held under valid, existing and enforceable
leases, with such exceptions as are disclosed in both the Offering Circular and the Disclosure
Package or are not material and do not interfere with the use made or proposed to be
made of such property and buildings by the Company; |
| (jj) | the
descriptions in each of the Offering Statement, the Offering Circular and the Disclosure
Package of the legal or governmental proceedings, contracts, leases, and other legal
documents therein described present fairly the information required to be shown, and
there are no legal or governmental proceedings, contracts, leases, or other documents
of a character required to be described in the Offering Statement, the Offering Circular
or the Disclosure Package or to be filed as exhibits to the Offering Statement which
are not described or filed as required; all agreements between the Company and third
parties expressly referenced in both the Offering Circular and the Disclosure Package
are legal, valid and binding obligations of the Company, enforceable in accordance with
their respective terms, except to the extent enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors’ rights
generally and by general equitable principles; |
| (kk) | the
Company, Subsidiaries and Affiliate owns or possesses adequate licenses or other rights
to use all patents, trademarks, service marks, trade names, copyrights, software and
design licenses, trade secrets, manufacturing processes, other intangible property rights,
and know-how (collectively “Intangibles”) necessary to entitle
the Company to conduct its business as described in both the Offering Circular and the
Disclosure Package, and the Company has not received notice of infringement of or conflict
with (and the Company is not aware of any such infringement of or conflict with) asserted
rights of others with respect to any Intangibles which could have a Material Adverse
Effect; |
| (ll) | the
Company has established and maintains disclosure controls and procedures (as such term
is defined in Rule 13a-15(e) under the Exchange Act), which are designed to
ensure that material information relating to the Company is made known to the Company’s
principal executive officer and its principal financial officer by others within the
Company, particularly during the periods in which the periodic reports required under
the Exchange Act are being prepared, (B) have been evaluated for effectiveness as
of the end of the last fiscal period covered by the Offering Statement, and (C) are
effective in all material respects to perform the functions for which they were established,
and (ii) the Company is not aware of (A) any significant deficiency or material
weakness in the design or operation of its internal controls over financial reporting
which are reasonably likely to adversely affect the Company’s ability to record,
process, summarize and report financial information to management and the Board of Directors,
or (B) any fraud, whether or not material, that involves management or other employees
who have a significant role in the Company’s internal control over financial reporting.
Since the most recent evaluation of the Company’s disclosure controls and procedures
described above, there have been no significant changes in internal control over financial
reporting or in other factors that could significantly affect internal control over financial
reporting; |
| (mm) | the
Company maintains a system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with management’s
general or specific authorizations; (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with generally accepted accounting
principles as applied in the United States and to maintain asset accountability; (iii) access
to assets is permitted only in accordance with management’s general or specific
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; |
| (nn) | the
Company has filed on a timely basis all necessary federal, state, local, and foreign
income and franchise tax returns required to be filed through the date hereof and have
paid or reserved for all taxes shown as due thereon; and no tax deficiency has been asserted
against the Company, nor does the Company know of any tax deficiency which is likely
to be asserted against it which, if determined adversely to it, could have a Material
Adverse Effect; all tax liabilities are adequately provided for on the respective books
of such entities; |
| (oo) | the
Company is not in violation, nor has it received notice of any violation or potential
or actual liability with respect to, any and all applicable foreign, federal, state and
local laws and regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental
Laws”); the Company has received all permits, licenses or other approvals required
under applicable Environmental Laws, and the Company is in compliance with all terms
and conditions of any such permit, license or approval, except any such violation of
law or regulation, failure to receive required permits, licenses or other approvals or
failure to comply with the terms and conditions of such permits, licenses or approvals
which would not, individually or in the aggregate, result in a Material Adverse Change;
except as set forth in the Disclosure Package and the Offering Circular the Company has
not been named as a “potentially responsible party” under the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended; |
| (pp) | the
Company, Subsidiaries and Affiliate are not in violation of nor have they received notice
of any violation with respect to any federal or state law relating to discrimination
in the hiring, promotion or pay of employees, nor any applicable federal or state wages
and hours law, the violation of any of which would have a Material Adverse Effect; |
| (qq) | neither
the Company, Subsidiaries, Affiliate nor any officer or director purporting to act on
behalf of the Company, Subsidiaries and Affiliate has at any time (i) made any contributions
to any candidate for political office, or failed to disclose fully any such contributions,
in violation of law, (ii) made any payment to any state, federal or foreign governmental
officer or official, or other person charged with similar public or quasi-public duties,
other than payments required or allowed by applicable law, (iii) made any payment
outside the ordinary course of business to any investment officer or broker or person
charged with similar duties of any entity with which such entity does business for the
purpose of influencing such agent, officer, broker or person to do business with the
Company, Subsidiaries and Affiliate, or (iv) engaged in any transactions, maintained
any bank account or used any corporate funds except for transactions, bank accounts and
funds which have been and are reflected in the normally maintained books and records
of the Company, Subsidiaries and Affiliate; |
| (rr) | except
as otherwise disclosed in both the Offering Circular and the Disclosure Package, there
are no outstanding loans, extensions of credit or advances or guarantees of indebtedness
by the Company, Subsidiaries and Affiliate to or for the benefit of any of the officers
or directors of the Company, Subsidiaries or Affiliate or any of the members of the families
of any of them; |
| (ss) | neither
the Company nor, to the knowledge of the Company, any employee or agent of the Company,
has made any payment of funds or received or retained any funds in violation of any law,
rule or regulation or of a character required to be disclosed in the Offering Circular
or the Disclosure Package; |
| (tt) | all
securities issued by the Company have been issued and sold in compliance with (i) all
applicable federal and state securities laws, (ii) the laws of the applicable jurisdiction
of incorporation of the issuing entity, and (iii) to the extent applicable to the
issuing entity, the requirements of the Exchange; |
| (uu) | in
connection with this offering, the Company has not offered and will not offer its Common
Stock or any other securities convertible into or exchangeable or exercisable for Common
Stock in a manner in violation of the Securities Act; and the Company has not distributed
and will not distribute any offering material in connection with the offer and sale of
the Shares except for the Preliminary Offering Circular, the Offering Circular, any Testing-the-Waters
Communication approved by the Representative or the Offering Statement; |
| (vv) | the
Company nor any of its affiliates does business with the government of Cuba or with any
person or affiliate located in Cuba; |
| (ww) | no
securities of the Company have been sold by the Company or by or on behalf of, or for
the benefit of, any person or persons controlled by the Company within the three years
prior to the date of the initial filing of the Offering Statement, except as disclosed
in the Offering Statement, the Disclosure Package, and the Preliminary Offering Circular.
The Company has not otherwise issued any securities in such time period, other than (i) grants
under any share compensation plan and shares issued upon the vesting or exercise thereof
and the warrants filed as exhibits to the Offering Statement. |
| (xx) | the
Company has not incurred any liability for any finder’s fees or similar payments
in connection with the transactions herein contemplated; |
| (yy) | no
relationship, direct or indirect, exists between or among the Company on the one hand,
and the directors, officers, stockholders, customers or suppliers of the Company on the
other hand, which the Securities Act requires and the Securities Act Regulations to be
described in the Offering Statement, the Offering Circular or the Disclosure Package,
which is not so described; |
| (zz) | the
Company is not and, after giving effect to the offering and sale of the Shares and Representative’s
Securities, will not be required to register as an “investment company” or
an entity “controlled” by an “investment company,” as such terms
are defined in the Investment Company Act of 1940, as amended (the “Investment
Company Act”); |
| (aaa) | the
Company is not (i) a development stage company or a “business development
company” as defined in Section 2(a)(48) of the Investment Company Act;
(ii) a blank check company or an issuer of fractional undivided interests in oil
or gas rights or similar interests in other mineral rights; (iii) an issuer of asset-backed
securities as defined in Item 1101(c) of Regulation AB, or (iv) a “foreign
private issuer” as defined in Rule 405 under the Securities Act; |
| (bbb) | there
are no existing or, to the knowledge of the Company, threatened labor disputes with the
employees of the Company which could have, individually or in the aggregate, a Material
Adverse Effect; |
| (ccc) | the
Company, and the officers and directors of the Company in their capacities as such, are,
and at the Closing Time and any Option Closing Time will be, in compliance in all material
respects with the provisions of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations
promulgated thereunder; |
| (ddd) | none
of the Company nor, to the knowledge of the Company, any director, officer, agent, employee
or affiliate of such entities is aware of or has taken any action, directly or indirectly,
that would result in a violation by such persons of the Foreign Corrupt Practices Act
of 1977, as amended, and the rules and regulations thereunder (the “FCPA”),
including, without limitation, making use of the mails or any means or instrumentality
of interstate commerce corruptly in furtherance of an offer, payment, promise to pay
or authorization of the payment of any money, or other property, gift, promise to give,
or authorization of the giving of anything of value to any “foreign official”
(as such term is defined in the FCPA) or any foreign political party or official
thereof or any candidate for foreign political office, in contravention of the FCPA and
the Company and, to the knowledge of the Company, their affiliates have conducted their
businesses in compliance with the FCPA; |
| (eee) | neither
the Company, nor its Subsidiaries, to the Company’s knowledge, any of its
affiliates or any director, officer, agent or employee of, or other person associated
with or acting on behalf of, the Company, has violated the Bank Secrecy Act, as amended,
the Uniting and Strengthening of America by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism Act (USA PATRIOT ACT) of 2001 or the rules and regulations
promulgated under any such law or any successor law; |
| (fff) | the
operations of the Company, the Subsidiaries, and, to the Company’s knowledge, its
affiliates are and have been conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting
Act of 1970, as amended, the Money Laundering Control Act of 1986, as amended, any other
money laundering statutes of all jurisdictions, the rules and regulations thereunder
and any related or similar rules, regulations or guidelines, issued, administered or
enforced by any governmental agency (collectively, the “Money Laundering Laws”),
except for any such non-compliance as would not, singly or in the aggregate, result in
a Material Adverse Change, and no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the Company, or, to
the Company’s knowledge, any of its affiliates, with respect to the Money Laundering
Laws is pending or, to the Company’s knowledge, threatened; |
| (ggg) | neither
the Company, the Subsidiaries, nor, to the knowledge of the Company, any director, officer,
employee, agent, affiliate or other person associated with or acting on behalf of the
Company is currently the subject or the target of any sanctions administered or enforced
by the U.S. government (including, without limitation, the Office of Foreign Assets Control
of the U.S. Department of the Treasury (“OFAC”) or the U.S. Department
of State and including, without limitation, the designation as a “specially designated
national” or “blocked person”), the United Nations Security Council,
the European Union, Her Majesty’s Treasury or other relevant sanctions authority
(collectively, “Sanctions”), nor is the Company located, organized
or resident in a country or territory that is the subject or target of Sanctions, including,
without limitation, Cuba, Iran, Iraq, North Korea, Sudan and Syria (each, a “Sanctioned
Country”); and the Company will not directly or indirectly use the proceeds
of the offering of the Shares hereunder, or lend, contribute or otherwise make available
such proceeds to any subsidiary, joint venture partner or other person or entity (i) to
fund or facilitate any activities of or business with any person that, at the time of
such funding or facilitation, is the subject or target of Sanctions, (ii) to fund
or facilitate any activities of or business in any Sanctioned Country or (iii) in
any other manner that will result in a violation by any person (including any person
participating in the transaction, whether as underwriter, advisor, investor or otherwise) of
Sanctions. Since the inception of the Company, the Company has not knowingly engaged
in and is not now knowingly engaged in any dealings or transactions with any person that
at the time of the dealing or transaction is or was the subject or the target of Sanctions
or with any Sanctioned Country. |
| (hhh) | to
the knowledge of the Company, Xxxxxxxx, LLP (the “Auditor”), whose
report is filed with the Commission as part of the Offering Statement, the Disclosure
Package, and the Offering Circular, is an independent registered public accounting firm
as required by the Securities Act and the Securities Act Regulations and the Public Company
Accounting Oversight Board. Except as may otherwise be disclosed in the Offering Statement,
the Disclosure Package, and the Offering Circular, the Auditor has not, during the periods
covered by the financial statements included in the Offering Statement, the Disclosure
Package, and the Offering Circular, provided to the Company any non-audit services, as
such term is used in Section 10A(g) of the Exchange Act. |
| (iii) | the
consolidated financial statements, including the notes thereto and supporting schedules,
included or incorporated by reference in the Offering Statement, the Disclosure Package,
and the Offering Circular, fairly present in all material respects the financial position
and the results of operations of the Company at the dates and for the periods to which
they apply. Such financial statements, notes, and schedules have been prepared in
conformity with generally accepted accounting principles as applied in the United States
(“GAAP”) applied on a consistent basis throughout the periods
involved, except as may be expressly stated in the notes thereto. Except as included
or incorporated by reference therein, no historical or pro forma financial statements
are required to be included in the Offering Statement, the Disclosure Package, or the
Offering Circular under the Securities Act or the Securities Act Regulations. The summary
financial information included under the caption “Summary Consolidated Financial
Data” in the Offering Statement, the Disclosure Package and the Offering Circular
presents fairly in all material respects the information shown therein and has been completed
on a basis consistent with that of the audited or unaudited financial statements included
therein (as the case may be). All disclosures included or incorporated by reference in
the Offering Statement, the Disclosure Package or the Offering Circular regarding “non-GAAP
financial measures” (as such term is defined by the rules and regulations of the
Commission), if any, comply with Regulation G of the Exchange Act and Item 10 of
Regulation S-K of the Securities Act, to the extent applicable. Each of the Offering
Statement, the Disclosure Package, and the Offering Circular discloses all material off-balance
sheet transactions, arrangements, and obligations (including contingent obligations) of
the Company. |
| (jjj) | all
issued and outstanding securities of the Company and the Subsidiaries issued prior
to the transactions contemplated by this Agreement have been duly authorized and validly
issued and are fully paid and non-assessable; the holders thereof have no redemption
or preemptive rights or rights of rescission with respect thereto, except as provided
by law, and are not subject to personal liability by reason of being such holders; and
except as disclosed in the Offering Statement, the Disclosure Package, and the Offering
Circular, none of such securities were issued in violation of the preemptive rights of
any holders of any security of the Company or similar contractual rights granted by the
Company. The authorized Shares, Company preferred shares, and other Company securities
to be outstanding upon consummation of the Offering conform in all material respects
to all statements relating thereto contained in the Offering Statement, the Disclosure
Package, and the Offering Circular. The offers and sales of the outstanding Shares were
at all relevant times either registered under the Securities Act and the applicable U.S.
state securities or “blue sky” laws or, based in part on the representations
and warranties of the purchasers of such shares, exempt from such qualification requirements. |
| (kkk) | The
Shares have been duly authorized for issuance and sale and, when issued and paid for,
will be validly issued, fully paid, and non-assessable; the holders thereof are not and
will not be subject to personal liability by reason of being holders; the Shares are
not and will not be subject to the preemptive rights of any holders of any security of
the Company or similar contractual rights granted by the Company; and all corporate action
required to be taken for the authorization, issuance, and sale of the Shares has been
duly and validly taken; and the description of the Shares conform in all material respects
to all statements with respect thereto contained in the Offering Statement, the Disclosure
Package, and the Offering Circular. |
| (lll) | no
holders of any securities of the Company or any rights exercisable for or convertible
or exchangeable into securities of the Company have the right to require the Company
to register any such securities of the Company under the Securities Act or to include
any such securities in an Offering Statement to be filed by the Company (except for any
such rights that have been waived or complied with). |
| (mmm) | the
Company maintains insurance covering the properties, operations, personnel, and business
of the Company in such amounts and with such deductibles and covering such risks as are
reasonably adequate and customary for its business. The Company has no knowledge that
it will not be able (i) to renew its existing insurance coverage as and when such
policies expire or (ii) to obtain comparable coverage from similar institutions
as may be necessary or appropriate to conduct its business as now conducted and at a
cost that would not reasonably be expected to result in a Material Adverse Effect. The
Company has not been denied any insurance coverage it has sought or for which it has
applied in the past two years. |
| (i) | Other
than Prometheum Ember ATS, Inc., a New York corporation (“PEATS”),
Manorhaven Capital, LLC, a Delaware limited liability company (“Manorhaven”),
and Prometheum Capital LLC, a Delaware limited liability company (“Prometheum
Capital,” and together with PEATS and Manorhaven, the “Subsidiaries”
and each a “Subsidiary”), the Company has no direct or indirect subsidiaries
or variable interest entities and does not hold any equity interests in any other entity.
The Company owns, directly or indirectly, all of the capital stock or other equity interests
of each Subsidiary free and clear of any lien, and all of the issued and outstanding
shares of capital stock of the Subsidiaries are validly issued and are fully paid, non-assessable
and free of preemptive and similar rights to subscribe for or purchase securities. Each
Subsidiary is duly organized and in good standing under the laws of the place of organization
or incorporation and is in good standing in each jurisdiction in which its ownership
or lease of property or the conduct of business requires such qualification, except where
the failure to qualify would not have a Material Adverse Effect and no 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. |
| | |
| (ii) | None
of the Subsidiaries is in breach of or in default under (nor has any event occurred which
with notice, lapse of time, or both would constitute a breach by the respective Subsidiary
of, or default by such Subsidiary under), (i) its articles of formation or operating
agreement bylaws (the “Subsidiary Organizational Documents”), (ii) the
performance or observance of any obligation, agreement, covenant or condition contained
in any license, indenture, mortgage, deed of trust, loan or credit agreement or other
agreement or instrument to which such Subsidiary is a party or by which its properties
are bound, or (iii) Law applicable to the Subsidiary, except, in the case of clauses
(ii) and (iii) above, for such breaches or defaults which would not, individually
or in the aggregate, have a Material Adverse Effect; |
| (ooo) | Broker-Dealer
Registration. Manorhaven is registered as a broker-dealer with the Commission
and under the laws of California, Colorado, Connecticut, the District of Columbia, Florida,
Georgia, Illinois, Massachusetts, Minnesota, Nevada, New Jersey, New York, North Carolina,
Ohio, Pennsylvania, Rhode Island, Texas and Washington, is a member of FINRA, and is
in compliance with all applicable laws, rules, regulations, orders, by-laws and similar
requirements in connection with such registration and memberships, including without
limitation Rule 15c-1 under the 1934 Act (the "Net Rule"), except
where the failure to be so registered or in such compliance would not have a Material
Adverse Effect. |
| (ppp) | Spark
Transfer Services, Inc., a Delaware corporation (“Spark” or the “Affiliate”)
is a duly registered transfer agent with the Commission and is in compliance with all
applicable laws, rules, regulations, orders, by-laws and similar requirements in connection
with such registration. Spark is duly organized and in good standing under the laws of
the place of organization or incorporation and is in good standing in each jurisdiction
in which its ownership or lease of property or the conduct of business requires such
qualification, except where the failure to qualify would not have a Material Adverse
Effect and no 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.
|
| (qqq) | Schedule III hereto contains a complete and accurate list of the Company’s officers, directors,
and 5% or more stockholders (or, with respect to such stockholders, their controlling
persons) (collectively, the “Lock-Up Parties”). |
| (rrr) | There
are no material business relationships or transactions with related persons required
to be described in the Offering Statement, the Disclosure Package, and the Offering Circular,
which have not been described in the Offering Statement, the Disclosure Package, and
the Offering Circular |
| (sss) | No
Restrictions on Subsidiaries. Except for regulatory restrictions relating to any Manorhaven,
as a registered broker dealer, no Subsidiary of the Company is currently prohibited,
directly or indirectly, under any agreement or other instrument to which it is a party
or is subject, from paying any dividends to the Company, from making any other distribution
on such Subsidiary’s capital stock or similar ownership interest, from repaying
to the Company any loans or advances to such Subsidiary from the Company or from transferring
any of such Subsidiary’s properties or assets to the Company or any other Subsidiary
of the Company. |
| (ttt) | No Broker’s
Fees. Neither the Company nor any of its Subsidiaries is a party to any contract,
agreement or understanding with any person (other than this Agreement) that would give
rise to a valid claim against the Company or any of its Subsidiaries or any underwriter
for a brokerage commission, finder’s fee or like payment in connection with the
offering and sale of the Shares. |
| (uuu) | Intellectual
Property Rights. |
| (i) | Except
as disclosed in the Offering Statement, the Disclosure Package, and the Offering Circular,
the Company, Subsidiaries, and Affiliate are the sole and exclusive owners of all right,
title, and interest in and to, or has a valid and enforceable right to use pursuant to
a written license, all respective trademarks, trade names, service marks, patents, patent
applications, other patent rights, copyrights, domain names, software, inventions, processes,
databases, know-how (including trade secrets and other unpatented and unpatentable proprietary
or confidential information, systems or procedures) and other similar intellectual
property rights, whether registered or unregistered and in any jurisdiction (collectively,
“Intellectual Property Rights”) reasonably necessary to conduct
their respective businesses as now conducted or proposed to be conducted as described
in the Offering Statement, the Disclosure Package, and Offering Circular, free and clear
of all liens and encumbrances. |
| (ii) | Except
as disclosed in the Offering Statement, the Disclosure Package, and the Offering circular,
to the knowledge of the Company, the Company’s, Subsidiaries’ and Affiliate’s
business as now conducted or proposed to be conducted as described in the Offering Statement,
the Disclosure Package, and Offering Circular, does not infringe, conflict with or otherwise
violate any Intellectual Property Rights of others, and the Company has not received,
and has no reason to believe that it will receive, any notice of infringement or conflict
with asserted Intellectual Property Rights of others, or any facts or circumstances which
would render any Intellectual Property Rights invalid or inadequate to protect the interest
of the Company, Subsidiaries or Affiliate therein. |
| (iii) | To
the Company's knowledge, there is no infringement by third parties of any Intellectual
Property Rights owned by or assigned to the Company, its Subsidiaries or Affiliate. |
| (iv) | Except as disclosed in the
Offering Statement, the Disclosure Package, and the Offering Circular, there is no pending or, to the knowledge of the Company,
threatened action, suit, proceeding or claim relating to Intellectual Property Rights. |
| (v) | Except
as disclosed in the Offering Statement, the Disclosure Package, and the Offering Circular,
the Company, Subsidiaries and Affiliate is not a party to or bound by any options, licenses,
or agreements with respect to the Intellectual Property Rights of any other person or
entity. |
| (vi) | All
licenses for Intellectual Property Rights owned or used by the Company, Subsidiaries
and Affiliate are valid, binding upon, and enforceable by or against them and, to the
Company’s knowledge, against the parties thereto in accordance with their terms. |
| (vii) | None
of the technology employed by the Company, Subsidiaries or Affiliate has been obtained
or is being used by the Company, Subsidiaries and Affiliate in violation of any contractual
obligation binding on them or, to the Company’s knowledge, any of their respective
officers, directors or employees or otherwise in violation of the rights of any third
party. |
| (viii) | Except
as would not reasonably be expected to result in a Material Adverse Effect, all assignments
from inventors to the Company, Subsidiaries and Affiliate have been obtained and filed
with the appropriate patent offices for all of the Company’s, Subsidiaries’
and Affiliate’s patent applications. |
| (ix) | Except
as would not reasonably be expected to result in a Material Adverse Effect, the Company
does not have knowledge of any claims of third parties to any ownership interest or unregistered
lien with respect to the Company’s, Subsidiaries’, Affiliate’s or their
respective licensors’ patents and patent applications. |
| (x) | The
Company does not know of any material defects of form in the preparation or filing of
the patent applications of except as disclosed in the Offering Statement, the Disclosure
Package, and the Offering Circular, the Company does not know of any facts which would
form a basis for a finding of unenforceability or invalidity of any of the patents, trademarks
or service marks of the Company, Subsidiaries or Affiliate. |
| (xi) | To
the Company's knowledge, the Company, Subsidiaries and Affiliate have each complied with
the U.S. Patents and Trademark Office duties of candor and disclosure for each patent
and patent application of the Company, Subsidiaries and Affiliate. |
| (xii) | Except
as disclosed in the Offering Statement, the Disclosure Package, and the Offering Circular,
the Company does not know of any fact with respect to the patent applications of the
Company, Subsidiaries and Affiliate presently on file that (A) would preclude the
issuance of patents with respect to such applications, (B) would lead it to conclude
that such patents, when issued, would not be valid and enforceable in accordance with
applicable regulations or (C) would result in a third party having any rights in
any patents issuing from such patent applications. |
| (xiii) | The
Company, Subsidiaries and Affiliate have taken all commercially reasonable steps to protect,
maintain and safeguard each of its rights in all Intellectual Property Rights, including
the execution of appropriate nondisclosure and confidentiality agreements. |
| (rrr) | No forward-looking statement
(within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act) contained in the
Offering Statement, the Disclosure Package, or the Offering Circular has been made or reaffirmed without a reasonable basis or
has been disclosed other than in good faith. |
| 3. | Certain
Covenants. The Company hereby agrees with each Underwriter: |
| (a) | to
furnish such information as may be required and otherwise to cooperate in qualifying
the Shares for offering and sale under the securities or blue sky laws of such jurisdictions
(both domestic and foreign) as the Representative may designate and to maintain
such qualifications in effect as long as requested by the Representative for the distribution
of the Shares, provided that the Company shall not be required to qualify as a foreign
corporation or to consent to the service of process under the laws of any such jurisdiction
(except service of process with respect to the offering and sale of the Shares); |
| (b) | if
at the time this Agreement is executed and delivered, a post-qualification amendment
to the Offering Statement must be qualified before the offering of the Shares may commence,
the Company will endeavor to cause such post-qualification amendment to become qualified
as soon as possible and will advise the Representative promptly and, if requested by
the Representative, will confirm such advice in writing, when such post-qualification
amendment has become qualified; |
| (c) | to
prepare the Offering Circular in a form approved by the Underwriters and file such Offering
Circular with the Commission pursuant to Rule 253(g) of Regulation A not
later than 10:00 a.m. (New York City time), on the day following the execution and delivery
of this Agreement or on such other day as the parties may mutually agree and to furnish
promptly (and with respect to the initial delivery of such Offering Circular, not later
than 10:00 a.m. (New York City time) on the day following the execution and delivery
of this Agreement or on such other day as the parties may mutually agree to the Underwriters
copies of the Offering Circular (or of the Offering Circular as amended or supplemented
if the Company shall have made any amendments or supplements thereto after the qualification
date of the Offering Statement) in such quantities and at such locations as the
Underwriters may reasonably request for the purposes contemplated by the Securities Act
Regulations, which Offering Circular and any amendments or supplements thereto furnished
to the Underwriters will be identical to the version transmitted to the Commission for
filing via XXXXX, except to the extent permitted by Regulation S-T; |
| (d) | to
advise the Representative promptly and (if requested by the Representative) to confirm
such advice in writing, when the Offering Statement has become qualified and when any
post-qualification amendment thereto becomes qualified under the Securities Act Regulations; |
| (e) | to
furnish a copy of any proposed Testing-the-Waters Communication to the Representative
and counsel for the Underwriters and obtain the consent of the Representative prior to
referring to, using, or filing with the Commission any Testing-the-Waters Communication
pursuant to Rule 255 of Regulation A and Item 17 of Form 1-A, other than
the Testing-the-Waters Communications, if any, identified in Schedule II
hereto; |
| (f) | to
comply with the requirements of Rule 255 of Regulation A and Item 17 of Form 1-A
applicable to any Testing-the-Waters Communication, including timely filing with the
Commission, legending and record-keeping, as applicable; |
| (g) | to
advise the Representative immediately, confirming such advice in writing, of (i) the
receipt of any comments from, or any request by, the Commission for amendments or supplements
to the Offering Statement, the Preliminary Offering Circular, the Offering Circular or
any Testing-the-Waters Communication, or for additional information with respect thereto,
(ii) the issuance by the Commission of any stop order suspending the qualification
of the Offering Statement, any order under Rule 258 of Regulation A suspending
the Regulation A exemption with respect to the offering of the Shares, or any order
preventing or suspending the use of the Preliminary Offering Circular, the Offering Circular
or any Testing-the-Waters Communication, or of the suspension of the qualification of
the Shares for offering or sale in any jurisdiction, or of the initiation or threatening
of any proceedings for any of such purposes and, if the Commission or any other government
agency or authority should issue any such order, to make every reasonable effort to obtain
the lifting or removal of such order as soon as possible, or (iii) the Company becoming
subject to a proceeding under Section 8A of the Securities Act in connection with
the public offering of Shares contemplated herein; and to advise the Representative promptly
of any proposal to amend or supplement the Offering Statement, the Preliminary Offering
Circular, the Offering Circular or any Testing-the-Waters Communication and to file no
such amendment or supplement to which the Representative shall reasonably object in writing; |
| (h) | to
furnish to the Underwriters for a period of two years from the date of this Agreement
except to the extent such information is accessible at xxxx://xxx.xxx.xxx or on the Company’s
public web site (i) as soon as available, copies of all annual, quarterly, and current
reports or other communications supplied to holders of shares of Common Stock, (ii) as
soon as practicable after the filing thereof, copies of all reports filed by the Company
with the Commission, FINRA or any securities exchange and (iii) such other information
as the Underwriters may reasonably request regarding the Company; |
| (i) | to
advise the Underwriters promptly of the happening of any event or development known to
the Company within the time during which an Offering Circular relating to the Shares
(or in lieu thereof the notice referred to in Rule 251(d)(ii)(E) of Regulation A) is
required to be delivered under the Securities Act Regulations which, in the judgment
of the Company or in the reasonable opinion of the Representative or counsel for the
Underwriters, (i) would require the making of any change in the Offering Circular
or the Disclosure Package so that the Offering Circular or the Disclosure Package would
not include an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or (ii) if it is necessary
at any time to amend or supplement the Offering Circular or the Disclosure Package to
comply with any law and, during such time, to promptly prepare and furnish to the Underwriters
copies of the proposed amendment or supplement before filing any such amendment or supplement
with the Commission and thereafter promptly furnish at the Company’s own expense
to the Underwriters and to dealers, copies in such quantities and at such locations as
the Representative may from time to time reasonably request of an appropriate amendment
or supplement to the Offering Circular or the Disclosure Package so that the Offering
Circular or the Disclosure Package as so amended or supplemented will not, in the light
of the circumstances when it (or in lieu thereof the notice referred to in Rule 251(d)(ii)(E) of
Regulation A) is so delivered, be misleading or, so that the Offering Circular
or the Disclosure Package will comply with the law; |
| (j) | to
file promptly with the Commission any amendment or supplement to the Offering Statement,
any Preliminary Offering Circular, the Offering Circular or any Testing-the-Waters Communication
that may, in the judgment of the Company or the Representative, be required by the Securities
Act or requested by the Commission; |
| (k) | prior
to filing with the Commission any amendment or supplement to the Offering Statement,
any Preliminary Offering Circular, the Offering Circular or any Testing-the-Waters Communication,
to furnish a copy thereof to the Representative and counsel for the Underwriters and
obtain the consent of the Representative to the filing; |
| (l) | to
furnish promptly to the Representative a signed copy of the Offering Statement, as initially
filed with the Commission, and of all amendments or supplements thereto (including all
exhibits filed therewith or incorporated by reference therein) and such number of
conformed copies of the foregoing as the Representative may reasonably request; |
| (m) | to
furnish to the Representative, not less than two business days before filing with the
Commission, during the period referred to in paragraph (g) above, a copy of any
document proposed to be filed with the Commission pursuant to Section 13, 14, or
15(d) of the Exchange Act and during the period of two years hereafter to file all
such documents in the manner and within the time periods required by the Exchange Act
and the Exchange Act Regulations; |
| (n) | to
apply the net proceeds of the sale of the Shares in accordance with its statements under
the caption “Use of Proceeds” in the Offering Circular and the Disclosure
Package; |
| (o) | to
use its best efforts to maintain the listing of the Shares on the Exchange selected by
the Representative and to file with the Exchange all documents and notices required by
the Exchange of companies that have securities listed thereon; |
| (p) | to
promptly notify the Representative if the Company ceases to be an Emerging Growth Company
at any time prior to the later of (i) the completion of the distribution of the
Shares within the meaning of the Securities Act and (ii) completion of the 180-day
restricted period referred to in Section 3(r) hereof; |
| (q) | to
engage and maintain, at its expense, a registrar and transfer agent registered with the
Commission for the Shares; |
| (r) | to
refrain, from the date hereof until 180 days after the date of the Offering Circular,
without the prior written consent of the Representative, from, directly or indirectly,
(i) offering, pledging, selling, contracting to sell, selling any option or contract
to purchase, purchasing any option or contract to sell, granting any option for the sale
of, or otherwise disposing of or transferring (or entering into any transaction or device
which is designed to, or could be expected to, result in the disposition by any person
at any time in the future of), any share of Common Stock or Preferred Stock or any securities
convertible into or exercisable or exchangeable for Common Stock of Preferred Stock
(“Stock Equivalents”), or filing any registration statement or offering
statement under the Securities Act with respect to any of the foregoing, or (ii) entering
into any swap or any other agreement or any transaction that transfers, in whole or in
part, directly or indirectly, the economic consequence of ownership of the Common Stock,
whether any such swap or transaction described in clause (i) or (ii) above
is to be settled by delivery of Common Stock or such other securities, in cash or otherwise.
Notwithstanding the foregoing the Company may (A) grant stock options, restricted
shares of Common Stock or other equity grants to employees or eligible consultants, in
each case pursuant to the terms of the Company’s equity incentive plans existing
as of the Closing Time and disclosed in the Disclosure Package, (B) issue Common
Stock pursuant to the exercise of such options or equity grants, or the exercise (including
net exercise) of warrants to purchase Common Stock or the conversion of other convertible
securities outstanding at the Closing Time and described in the Disclosure Package, (C) sell
Common Stock pursuant to this Agreement, (D) file one or more registration statements
on Form S-8 relating to the options or other securities granted pursuant to the Company’s
equity incentive plans existing as of the Closing Time and disclosed in the Disclosure
Package, and (E) issue Common Stock or any Stock Equivalents in connection
with any acquisition or strategic investment (including any joint venture, strategic
alliance or partnership); provided that in the case of clause (E) such issuances,
sales or deliveries shall not be greater than 5% of the total outstanding shares of Common
Stock of the Company immediately following the completion of this Offering and, in the
cases of clauses (B) and (E), the recipients of such securities agree to be bound
by a lock-up letter in the form executed by the officers of the Company pursuant to Section 6(k)
hereof; |
| (s) | not
to, and to use its best efforts to cause its officers, directors, and affiliates not
to, (i) take, directly or indirectly prior to termination of the underwriting syndicate
contemplated by this Agreement, any action designed to stabilize or manipulate the price
of any security of the Company, or which may cause or result in, or which might in the
future reasonably be expected to cause or 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 Shares, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting
purchases of the Shares or (iii) pay or agree to pay any person any compensation
for soliciting any order to purchase any other securities of the Company; |
| (t) | to
cause each executive officer, director and 5% or greater stockholder of the Company listed
on Schedule III to furnish to the Representative, prior to the Closing Time, the
Lock-Up Agreement in the form of Exhibit B hereto; |
| (u) | if,
at any time during the 90-day period after the date of the Offering Circular, any rumor,
publication, or event relating to or affecting the Company shall occur as a result of
which, in the reasonable opinion of the Representative, the market price of the Common
Stock has been or is likely to be materially affected (regardless of whether such rumor,
publication or event necessitates a supplement to or amendment of the Offering Circular)
and after written notice from the Representative advising the Company to the effect set
forth above, to forthwith prepare, consult with the Representative concerning the substance
of, and disseminate a press release or other public statement, reasonably satisfactory
to the Representative, responding to or commenting on such rumor, publication or event; |
| (v) | the
Company acknowledges that each Underwriter’s research analysts and research departments,
if any, are required to be independent from their respective investment banking divisions
and are subject to certain regulations and internal policies, and that such Underwriter’s
research analysts may hold and make statements or investment recommendations or publish
research reports with respect to the Company or the offering that differ from the views
of its investment bankers. The Company hereby waives and releases, to the fullest extent
permitted by law, any claims that the Company may have against such Underwriter with
respect to any conflict of interest that may arise from the fact that the views expressed
by their independent research analysts and research departments may be different from
or inconsistent with the views or advice communicated to the Company by such Underwriter’s
investment banking divisions. The Company acknowledges that the Representative is a full-service
securities firm and, as such from time to time, subject to applicable securities laws,
may effect transactions for its own account or the account of its customers and hold
long or short position in debt or equity securities of the Company. |
| (w) | The
Company shall apply the net proceeds from the Offering received by it in a manner consistent
with the application thereof described under the caption “Use of Proceeds”
in the Offering Statement, the Disclosure Package, and the Offering Circular. |
| (x) | Neither
the Company nor, to its knowledge, any of its employees, directors or stockholders
(without the consent of the Representative) has taken or shall take, directly or indirectly,
any action designed to or that has constituted, or that might reasonably be expected to cause
or result in, under Regulation M of the Exchange Act, or otherwise, stabilization or
manipulation of the price of any security of the Company to facilitate the sale or resale
of the Shares. |
| (y) | For
a period of 90 days from the later of the Closing Date or the Option Closing Date, the
Company shall advise the Representative (who shall make an appropriate filing with FINRA) if
it is or becomes aware that (i) any officer or director of the Company, (ii) any
beneficial owner of 5% or more of any class of the Company’s securities or (iii) any
beneficial owner of the Company’s unregistered equity securities which were acquired
during the 180 days immediately preceding the original filing of the Offering Statement
is or becomes an affiliate or associated person of a FINRA member participating in the
Offering (as determined in accordance with the rules and regulations of FINRA). |
| (z) | The
Company acknowledges and agrees that the Underwriters’ responsibility to the Company
is solely contractual in nature and that none of the Underwriters or their affiliates
or any selling agent shall be deemed to be acting in a fiduciary capacity or otherwise
owes any fiduciary duty to the Company or any of its affiliates in connection with the
Offering and the other transactions contemplated by this Agreement. |
| (aa) | The
Company shall use its best efforts to maintain a system of internal accounting controls
sufficient to provide reasonable assurances that: (i) transactions are executed
in accordance with management’s general or specific authorization; (ii) transactions
are recorded as necessary in order to permit preparation of financial statements in accordance
with GAAP and to maintain accountability for assets; (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 existing assets at reasonable intervals,
and appropriate action is taken with respect to any differences. |
| (bb) | The
Company, on behalf of itself and any successor entity, agrees that, without the prior written
consent of the Representative, it will not, for a period of 180 days after the date of this
Agreement, (i) 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, any shares of
capital stock of the Company or any securities convertible into or exercisable or exchangeable
for shares of capital stock of the Company; (ii) file or cause to be filed any Offering
Statement with the Commission relating to the offering of any shares of capital stock of
the Company or any securities convertible into or exercisable or exchangeable for shares
of capital stock of the Company (other than the Offering Statement or an Offering Statement
on Form S-8); or (iii) enter into any swap or other arrangement that transfers to another,
in whole or in part, any of the economic consequences of ownership of capital stock of the
Company, whether any such transaction described in clause (i), (ii) or (iii) above
is to be settled by delivery of shares of capital stock of the Company or such other securities,
in cash or otherwise. The restrictions contained in this Section 3(bb) shall
not apply to (i) the Shares to be sold hereunder; (ii) the issuance by the Company
of Shares upon the exercise of an outstanding option or warrant, the vesting of an outstanding
restricted stock unit or the conversion of a security outstanding on the date hereof and
disclosed in the Offering Statement and the Disclosure Package, (iii) the transfer or
deemed repurchase of capital stock by the Company for payment purposes in connection with
the delivery of shares of stock pursuant to restricted stock, restricted stock units or other
equity award or warrant (including shares withheld or forfeited in order to satisfy any tax
withholding or remittance obligations or pursuant to a net settlement), or (iv) the
grant by the Company of options or other share-based awards, or the issuance of shares of
the Company under any equity compensation plan of the Company disclosed in the Pricing Offering
Circular, as such plans may be amended. |
| (cc) | The
Company shall use commercially reasonable efforts to ensure that: (i) the qualifications
of the persons serving as Board members and the overall composition of the Board comply
in all material respects with the Xxxxxxxx-Xxxxx Act and the rules promulgated thereunder
and with the listing requirements of the Exchange and (ii) if applicable, at least
one member of the Board qualifies as an “audit committee financial expert”
as such term is defined under Regulation S-K. |
| (dd) | At
the Representative's request, by 9:00 a.m. (New York City time) on the date following
the date hereof, the Company shall issue a press release disclosing the material terms
of the Offering. Except as set forth in the immediately preceding sentence, prior to
the Closing Date and any Option Closing Date, the Company shall not issue any press release
or other communication directly or indirectly or hold any press conference with respect
to the Company, its condition, financial or otherwise, or earnings, business affairs
or business prospects (except for routine oral and written communications in the ordinary
course of business and consistent with the past practices of the Company and of which
the Representative is notified), without the prior written consent of the Representative,
which consent shall not be unreasonably withheld unless in the judgment of the Company
and its counsel, and after notification to the Representative, such press release or
communication is required by law, rule or regulation. |
| (ee) | The
Company shall use its best efforts, in cooperation with the Underwriters, if necessary,
to qualify the Shares for offering and sale under the applicable securities laws of such
states and other jurisdictions (domestic or foreign) as the Representative may designate
and to maintain such qualifications in effect so long as required to complete the distribution
of the Shares; provided, however, that the Company shall not be obligated
to file any general consent to service of process or to qualify as a foreign corporation
or as a dealer in securities in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any jurisdiction in which
it is not otherwise so subject. |
| (ff) | During
the period when an Offering Circular relating to the Shares is required to be delivered
under the Securities Act, the Company will file all documents required to be filed with
the Commission pursuant to the Exchange Act within the time periods required by the Exchange
Act and Exchange Act Regulations. Additionally, the Company shall report the use of proceeds
from the issuance of the Shares as may be required under Rule 463 under the Securities
Act Regulations. |
| (gg) | The
Company will deliver to each Underwriter (or its agent), prior to or at the Closing Date,
a properly completed and executed Internal Revenue Service Form W-9 or an IRS Form W-8,
as appropriate, together with all required attachments to such forms (or other applicable
form or statement specified by the Treasury Department regulations in lieu thereof) in
order to facilitate the Underwriters’ documentation of their compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act
of 1982 with respect to the transactions herein contemplated. |
| (hh) | Notwithstanding
the restrictions contained in Section 3(r), the Company, on behalf
of itself and any successor entity, agrees that, without the prior written consent of
the Representative, it will not, for a period of 90 days after the date of this Agreement,
directly or indirectly in any “at-the-market” or continuous equity transaction,
offer to sell, sell, contract to sell, grant any option to sell or otherwise dispose
of shares of capital stock of the Company or any securities convertible into or exercisable
or exchangeable for shares of capital stock of the Company. |
| (a) | Payment
of Expenses. The Company hereby agrees to pay on or before the Closing Date all expenses
incident to the performance of the obligations of the Company under this Agreement, including,
but not limited to: |
| (i) | all
filing fees relating to the qualification of the Shares to be sold in the Offering with
the Commission; |
| (ii) | the
preparation and filing of the Offering Statement, each Preliminary Offering Circular,
the Offering Circular, any Testing-the-Waters Communication and any amendments or supplements
thereto, and the printing and furnishing of copies of each thereof to the Underwriters
and dealers (including costs of mailing and shipment); |
| (iii) | the
preparation, issuance, and delivery of the certificates for the Shares to the Underwriters,
including any stock or other transfer taxes or duties payable upon the sale of the Shares
to the Underwriters; |
| (iv) | the
printing of this Agreement and any dealer agreements and furnishing of copies of each
to the Underwriters and dealers (including costs of mailing and shipment); |
| (v) | the
qualification of the Shares for offering and sale under state laws that the Company and
the Representative have mutually agreed are appropriate and the determination of their
eligibility for investment under state law as aforesaid (including the legal fees and
filing fees and other disbursements of counsel for the Underwriters and the printing
and furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriters
and dealers); |
| (vi) | filing
fees for review of the public offering of the Shares by FINRA; |
| (vii) | the
fees and expenses of any transfer agent or registrar for the Shares and miscellaneous
expenses referred to in the Offering Statement; |
| (viii) | the
fees and expenses incurred in connection with the listing of the Shares on the Exchange
selected by the Representative; |
| (ix) | roadshow
presentations with respect to the offering of the Shares; |
| (xi) | the
fees and expenses of the Representative’s Counsel up to a maximum of $65,000; |
| (xii) | the
Representative’s use offering circular tracking, compliance software, and other
communication expenses for the Offering; |
| (xiii) | the
costs of background checks by the Representative of the Company’s senior management
in an amount not to exceed $15,000, |
| (xiv) | preparation
of bound volumes and Lucite cube mementos in such qualities as the Representative may
reasonably request up to an amount of $2,500. |
provided,
however, that such fees and expenses set forth in (xi)-(xiv) above shall not to exceed $120,000 in the aggregate; provided
further, that such fees and expenses set forth in clauses (i)-(x) may be paid following the Closing Date following receipt of
invoices therefor. The Representative may deduct from the net proceeds of the Offering payable to the Company at the Closing Time,
or any Option Closing Date, the expenses set forth in clauses (xi)-(xiv) herein (after giving effect to any amounts previously
advanced, and as limited by the proviso thereto).
| 5. | Representative’s
Warrants. The Company hereby agrees to issue to the Representative (and its designees) at
the Closing Time and Option Closing Time, if any, warrants substantially in the form attached
hereto as Exhibit A to purchase the amount of Shares equal to an aggregate
of eight percent (8%) of the Shares sold in the Offering (the “Representative’s
Warrants”). The Representative’s Warrants shall be exercisable, in whole
or in part, commencing 180 days from the Effective Date and expiring on the fifth anniversary
of the Qualification Date at an initial exercise price equal to one hundred fifty
percent (150%) of the Offering price of the Shares. The Shares issuable upon
exercise of the Representative’s Warrants are collectively referred to herein as the
“Representative’s Warrant Shares” and together with the Representative’s
Warrants, the “Representative’s Securities.” |
| 6. | Conditions
of the Underwriters’ Obligations. The obligations of the Underwriters hereunder
to purchase Shares at the Closing Time or on each Option Closing Time, as applicable,
are subject to the accuracy of the representations and warranties on the part of the
Company hereunder on the date hereof and at the Closing Time and on each Option Closing
Time, as applicable, the performance by the Company of its obligations hereunder and
to the satisfaction of the following further conditions at the Closing Time or on each
Option Closing Time, as applicable: |
| (a) | The
Company shall furnish to the Underwriters at the Closing Time and on each Option Closing
Time an opinion of Gusrae Xxxxxx Xxxxxxx PLLC, counsel for the Company, addressed to
the Underwriters and dated the Closing Time and each Option Closing Time and in the form
of and substance satisfactory to Carmel, Xxxxxxx & Xxxx, LLP, counsel for the Underwriters,
stating that: |
| (i) | the
Company has an authorized capitalization as set forth in both the Offering Circular and
the Disclosure Package under the caption “Capitalization”; the outstanding
shares of capital stock of the Company have been duly and validly authorized and issued
and are fully paid and non-assessable; except as disclosed in both the Offering Circular
and the Disclosure Package; |
| (ii) | the
Company is validly existing as a corporation in good standing under the laws of its jurisdiction
of incorporation with full corporate power and authority to own its properties and to
conduct its business as described in each of the Offering Statement, the Offering Circular
and the Disclosure Package, and, in the case of the Company, to execute and deliver this
Agreement and to consummate the transactions described in this Agreement; |
| (iii) | the
Company is duly qualified, and are in good standing, in each jurisdiction in which it
owns or leases real property or maintain an office and in which such qualification is
necessary except where the failure to be so qualified and in good standing would not
have a Material Adverse Effect; other than as disclosed in both the Offering Circular
and the Disclosure Package, the Company does not own, directly or indirectly, any capital
stock or other equity securities of any other corporation or any ownership interest in
any partnership, joint venture or other association; |
| (iv) | the
execution, delivery and performance of this Agreement by the Company and the consummation
by the Company of the transactions contemplated by this Agreement do not and will not
(A) conflict with, or result in any breach of, or constitute a default under (nor
constitute any event which with notice, lapse of time, or both would constitute a breach
of or default under), (i) any provisions of the certificate of incorporation, charter
or bylaws of the Company, (ii) any provision of any material license, indenture,
mortgage, deed of trust, loan, credit or other agreement or instrument identified to
such counsel to which the Company is a party or by which it or its properties or assets
may be bound or affected, (iii) any law or regulation binding upon or applicable
to the Company or any of its properties or assets, or (iv) any decree, judgment
or order applicable to the Company and identified to such counsel; or (B) result
in the creation or imposition of any lien, charge, claim or encumbrance upon any property
or assets of the Company; |
| (v) | this
Agreement has been duly authorized, executed, and delivered by, and is the legally valid
and binding agreement of, the Company; |
| (vi) | no
approval, authorization, consent, or order of or filing with any federal or state governmental
or regulatory commission, board, body, authority, or agency is required in connection
with the execution, delivery, and performance of this Agreement, the consummation of
the transactions contemplated herein, and the sale and delivery of the Shares by the
Company as contemplated herein, other than such as have been obtained or made under the
Securities Act and the Securities Act Regulations and the Exchange Act and Exchange Act
Regulations, and except that such counsel need express no opinion as to any necessary
qualification under the state securities or blue sky laws of the various jurisdictions
in which the Underwriters are offering the Shares; |
| (vii) | the
Company has all necessary material licenses, authorizations, consents, and approvals
and has made all necessary filings required under any federal, state, or local law, regulation,
or rule, and has obtained all necessary authorizations, consents, and approvals from
other persons, required to conduct their respective businesses, as described in both
the Offering Circular and the Disclosure Package, except where the failure to have such
licenses, authorizations, consents, and approvals or to make such filing would reasonably
be expected to have a Material Adverse Effect; |
| (viii) | the
Company is not subject to registration as an investment company under the Investment
Company Act, and the transactions contemplated by this Agreement will not cause the Company
to become obligated to register as an investment company under such Act; |
| (ix) | the
Shares have been duly authorized, and when the Shares have been issued and duly delivered
against payment therefor as contemplated by this Agreement, the Shares will be validly
issued, fully paid, and non-assessable; |
| (x) | the
issuance and sale of the Shares by the Company is not subject to preemptive or other
similar rights arising by operation of law, under the certificate of incorporation or
bylaws of the Company, or, to the best of such counsel’s knowledge, under any agreement
to which the Company is a party; |
| (xi) | the
Shares conform in all material respects to the descriptions thereof contained in each
of the Offering Statement, the Offering Circular and the Disclosure Package; |
| (xii) | the
form of certificate used to evidence the Common Stock complies in all material respects with
all applicable statutory requirements, with any applicable requirements of the Organizational
Documents and the requirements of the Exchange; |
| (xiii) | the
Offering Statement has been qualified under the Securities Act and no stop order suspending
the qualification of the Offering Statement, and no order under Rule 258 of Regulation A
suspending the Regulation A exemption with respect to the offering of the Shares,
has been issued and, to the best of such counsel’s knowledge, no proceedings with
respect thereto have been commenced or threatened; |
| (xiv) | as
of each qualification date of the Offering Statement, the Offering Statement and the
Offering Circular (except as to the financial statements and other financial data contained
therein, as to which such counsel need express no opinion) complied as to form in
all material respects with the requirements of the Securities Act and the Securities
Act Regulations (it being understood that such counsel need express no opinion as to
the financial statements or schedules or other financial data derived therefrom, included
therein); |
| (xv) | the
Form 8-A Registration Statement, when filed with the Commission, complied as to form
in all material respects with the requirements of the Exchange Act; the Form 8-A Registration
Statement has become effective under the Exchange Act, and the Shares have been validly
registered under the Exchange Act and the Exchange Act Regulations; |
In addition,
such counsel shall state that they have participated in conferences with officers and other representatives of the Company, independent
public accountants of the Company, and representatives of the Representative, at which the contents of the Offering Statement,
the Offering Circular and the documents constituting the Disclosure Package were discussed and, although such counsel is not passing
upon and does not assume responsibility for the accuracy, completeness or fairness of the statements contained in the Offering
Statement, the Offering Circular or the Disclosure Package (except as and to the extent stated in subparagraphs (xi), (xiv) and
(xv) above), nothing has come to their attention that would lead them to believe that (i) either the Offering Statement,
any amendment thereto, or any document deemed to be a part thereof, at the time of any qualification date applicable thereto,
contained an 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 in the Offering Statement not misleading; or (ii) the Offering Circular, as of its date or
at the Closing Time or any Option Closing Time, as the case may be, contained an untrue statement of a material fact or omitted
to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they
were made, not misleading; or (iii) the Disclosure Package as of the Initial Sale Time contained 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 circumstances
under which they were made, not misleading (it being understood that such counsel need express no belief as to mineral reserves
and related statistical data, the financial statements or other financial data derived therefrom, included in the Offering Statement
the Offering Circular, the Disclosure Package or any amendments or supplements thereto).
| (b) | On
the date of this Agreement and at the Closing Time and each Option Closing Time (if applicable),
the Representative shall have received from the Auditor, letters dated the respective
dates of delivery thereof and addressed to the Representative, in form and substance
satisfactory to the Representative, containing statements and information of the type
specified in AU Section 634 “Letters for Underwriters and Certain other Requesting
Parties” issued by the American Institute of Certified Public Accountants with
respect to the financial statements, including any pro forma financial statements, and
certain financial information of the Company included in the Offering Statement, the
Offering Circular and the Disclosure Package, and such other matters customarily covered
by comfort letters issued in connection with registered public offerings; provided, that
the letters delivered at the Closing Time and each Option Closing Time (if applicable) shall
use a “cut-off” date no more than three business days prior to such Closing
Time or such Option Closing Time, as the case may be. |
| (c) | The Representative shall have received the
Representative’s Warrants pursuant to Section 5 of this Agreement. |
| (d) | The
Offering Statement shall have become qualified not later than 5:00 p.m., New York City
time, on the date of this Agreement, or such later time and date as the Representative
shall approve. |
| (e) | No
amendment or supplement to the Offering Statement, the Offering Circular or any document
in the Disclosure Package shall have been filed to which the Underwriters shall have
objected in writing prior to such filing. |
| (f) | Prior
to the Closing Time and each Option Closing Time (i) no stop order suspending the
qualification of the Offering Statement, no order under Rule 258 of Regulation A
suspending the Regulation A exemption with respect to the offering of the Shares
and no order preventing or suspending the use of the Offering Circular or any document
in the Disclosure Package shall have been issued, and no proceedings for any such purpose
shall have been initiated or threatened, by the Commission, and no suspension of the
qualification of the Shares for offering or sale in any jurisdiction, or the initiation
or threatening of any proceedings for any of such purposes, has occurred; (ii) all
requests for additional information on the part of the Commission shall have been complied
with to the reasonable satisfaction of the Representative; (iii) the Offering Statement
shall not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein not misleading;
and (iv) the Offering Circular and the Disclosure Package shall not contain an untrue
statement of a material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading. |
| (g) | All
filings with the Commission required by Rule 253 of Regulation A under the
Securities Act to have been filed by the Closing Time shall have been made within the
applicable time period prescribed for such filing by such Rule. |
| (h) | Between
the time of execution of this Agreement and the Closing Time or the relevant Option Closing
Time, there shall not have been any Material Adverse Change or any prospective Material
Adverse Change, and (ii) no transaction that is material and unfavorable to the
Company shall have been entered into by the Company, in each case, which in the Representative’
sole judgment, makes it impracticable or inadvisable to proceed with the public offering
of the Shares as contemplated by the Offering Statement. |
| (i) | The
Shares shall have been approved for listing on the Exchange selected by the Representative,
subject to official notice of issuance. |
| (j) | FINRA
shall not have raised any objection with respect to the fairness and reasonableness of
the underwriting terms and arrangements. |
| (k) | Lock-up
Agreements. The Representative shall have received lock-up agreements from each officer,
director, and 5% or more of the stockholders of the Company, in the form of Exhibit B
attached hereto, and such letter agreements shall be in full force and effect. |
| (l) | Officer’s
Certificate. The Company will, at the Closing Time and on each Option Closing Time,
deliver to the Underwriters a certificate of its Chairman of the Board, Chief Executive
Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer
or Chief Financial Officer, to the effect that: |
| (i) | the
representations and warranties of the Company in this Agreement are true and correct,
as if made on and as of the Closing Time or any Option Closing Time, as applicable, and
the Company has complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the Closing Time or any Option Closing
Time, as applicable; |
| (ii) | no
stop order suspending the qualification of the Offering Statement or any post-effective
amendment thereto, and no order under Rule 258 of Regulation A suspending the
Regulation A exemption with respect to the offering of the Shares, has been issued,
and no proceedings for that purpose have been instituted or are pending or threatened
under the Securities Act; |
| (iii) | the
signers of such certificate have carefully examined the Offering Statement, the Offering
Circular Disclosure Package, the Form 8-A Registration Statement, any amendment or supplement
to any of the foregoing, and this Agreement, and that when the Offering Statement became
qualified and at all times subsequent thereto up to the Closing Time or any Option Closing
Time, as applicable, the Offering Statement, the Offering Circular, the Preliminary Offering
Circular, the Form 8-A Registration Statement, and any amendments or supplements thereto
in all material respects conformed to the requirements of the Securities Act or the Exchange
Act and the applicable rules and regulations of the Commission thereunder, as the case
may be; the Offering Statement and any amendments thereto, did not and, as of the Closing
Time or any Option Closing Time, as applicable, does not contain an untrue statement
of a material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and the Offering Circular and
the Disclosure Package, and any amendments or supplements thereto, did not and as of
the Closing Time or any Option Closing Time, as applicable, do not include any untrue
statement of a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances under
which they were made, not misleading; and, since the effective date of the Offering Statement,
there has occurred no event required to be set forth in an amendment or supplement to
the Offering Circular or the Disclosure Package that has not been so set forth; and |
| (iv) | subsequent
to the respective dates as of which information is given in the Offering Statement, the
Offering Circular and the Disclosure Package, there has not been (a) any Material
Adverse Change, (b) any transaction that is material to the Company, except transactions
entered into in the ordinary course of business, (c) any obligation, direct or contingent,
that is material to the Company, incurred by the Company, except obligations incurred
in the ordinary course of business, (d) any change in the capital stock or outstanding
indebtedness of the Company that is material to the Company, (e) any dividend or
distribution of any kind declared, paid or made on the capital stock of the Company,
or (f) any loss or damage (whether or not insured) to the property of the Company
or any Subsidiary which has been sustained or will have been sustained that has a Material
Adverse Effect. |
| (m) | Secretary’s
Certificate. At each of the Closing Date and any Option Closing Date, the Representative
shall have received a certificate of the Company signed by the Secretary of the Company,
dated the Closing Date and Option Closing Date (if such date is other than the Closing
Date), certifying: (i) that the certificate of incorporation and all amendments
thereto, and bylaws of the Company and its Subsidiaries are true and complete, have not
been modified and are in full force and effect; (ii) that the resolutions of the
Company’s Board of Directors relating to the Offering are in full force and effect
and have not been modified except as set forth therein; (iii) the good standing
of the Company and its Subsidiaries; and (iv) as to the incumbency of the executive
officers of the Company and its Subsidiaries. The documents referred to above and in
the Secretary’s Certificate shall be attached to such certificate. |
| (n) | No
Material Changes. Prior to and on each of the Closing Date and the Option Closing
Date: (i) there shall have been no Material Adverse Change or development involving
a prospective Material Adverse Change in the condition or the business activities, financial
or otherwise, of the Company from the latest dates as of which such condition is set
forth in the Offering Statement, the Disclosure Package, and the Offering Circular; (ii) no
action, suit or proceeding, at law or in equity, shall have been pending or threatened
against the Company or any Insider before or by any court or federal or state commission,
board or other administrative agency wherein an unfavorable decision, ruling or finding
would reasonably be expected to result in a Material Adverse Change, except as set forth
in the Offering Statement, the Disclosure Package, and the Offering Circular; (iii) no
stop order shall have been issued under the Securities Act with respect to the Offering
Statement, the Preliminary Offering Circular or the Offering Circular and no proceedings
therefor shall have been initiated or threatened by the Commission; and (iv) the
Offering Statement, the Disclosure Package, and the Offering Circular and any amendments
or supplements thereto shall contain all material statements which are required to be
stated therein in accordance with the Securities Act and the Securities Act Regulations
and shall conform in all material respects to the requirements of the Securities Act
and the Securities Act Regulations, and neither the Offering Statement, the Disclosure
Package nor the Offering Circular nor any amendment or supplement thereto shall contain
any untrue statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading. |
| (o) | No
Material Misstatement or Omission. The Underwriters shall not have discovered and
disclosed to the Company on or prior to the Closing Date and any Option Closing Date
that the Offering Statement or any amendment or supplement thereto contains an untrue
statement of a fact which, in the reasonable opinion of Representative Counsel, is material
or omits to state any fact which, in the reasonable opinion of such counsel, is material
and is required to be stated therein or is necessary to make the statements therein not
misleading, or that the Offering Statement, the Disclosure Package, any Issuer Free Writing
Offering Circular or the Offering Circular or any amendment or supplement thereto contains
an untrue statement of fact which, in the reasonable opinion of such counsel, is material
or omits to state any fact which, in the opinion of such counsel, is material and is
necessary in order to make the statements, in the light of the circumstances under which
they were made, not misleading. |
| (p) | Additional
Documents. At the Closing Date, Representative Counsel shall have been furnished
with such additional documents as they may require for the purpose of enabling Representative
Counsel to deliver an opinion to the Underwriters, or in order to evidence the accuracy
of any of the representations or warranties or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company in connection with the issuance
and sale of the Shares as herein contemplated shall be satisfactory in form and substance
to the Representative and Representative Counsel. |
| 7. | Finder’s
Fee. If at any time before the second anniversary of the Closing Time, the Company
or any of its affiliates shall enter into any transaction (including, without limitation,
any merger, consolidation, acquisition, financing, joint venture, or other arrangements) with
any party introduced to the Company by the Representative and whom the Company engaged
in meaningful discussions with, directly or indirectly, during such period, the Company
shall pay the Representative a transaction fee, payable at the closing thereof and in
the same form of consideration as in the applicable transaction giving rise to such fee
(i.e., cash or stock or in a combination of the two, as applicable) equal to a percentage
of the consideration received by the Company and /or its affiliates or stockholders as
follows: |
| (a) | 5%
of the first $1,000,000; |
| (b) | 4%
of the next $1,000,000; |
| (c) | 3%
of the next $1,000,000; |
| (d) | 2%
of the next $1,000,000; and |
| (e) | 1%
of all amounts in excess of $4,000,000. |
The Company agrees to pay
the Representative the aforementioned fee during the aforementioned time period provided the introduction to the transaction is
made by the Representative is one degree of separation from the introduced party.
| 8. | Right
of First Negotiation. Following the Closing, the Representative shall have a 12-month
right of the right of first negotiation to co-manage the Company’s next public
underwriting or private placement of debt or equity securities (excluding (a) shares
issued under any compensation or stock option plan approved by the board of directors
of the Company, (b) shares issued in payment of the consideration for an acquisition
or as part of strategic partnerships or other business transactions, (c) banking
arrangements, other than with investment banks, and commercial debt financing of the
Company or any Subsidiary or successor of the Company and (d) offerings or sales
of Ember Tokens). If the Representative fails to accept in writing any such proposal
for such public or private offering within ten (10) days Business Days after receipt
of a written notice in accordance with this Agreement from the Company containing such
proposal, then the Representative will have no claim or right with respect to any such
sale contained in any such notice. If thereafter, such proposal is modified in any material
respect, the Company will adopt the same procedure as with respect to the original proposed
public or private sale, and the Representative shall have the right of first refusal
with respect to such revised proposal. |
| (a) | The
obligations of the several Underwriters hereunder shall be subject to termination in
the absolute discretion of the Representative, at any time prior to the Closing Time
or any Option Closing Time, (i) if any of the conditions specified in Section 6 shall not have been fulfilled when and as required by this Agreement to be fulfilled,
or (ii) if there has been since the respective dates as of which information is
given in the Offering Statement, the Offering Circular or the Disclosure Package, any
Material Adverse Change, or any development involving a prospective Material Adverse
Change, or material change in management of the Company, whether or not arising in the
ordinary course of business, or (iii) if there has occurred any outbreak or escalation
of hostilities or terrorist activities or other national or international calamity or
crisis or change in economic, political or other conditions, the effect of which on the
United States or international financial markets is such as to make it, in the judgment
of the Representative, impracticable to market the Shares or enforce contracts for the
sale of the Shares, or (iv) if trading in any securities of the Company has been
suspended by the Commission or by the Exchange, or if trading generally on the New York
Stock Exchange, the NYSE MKT or the Nasdaq Stock Market or in the Nasdaq over-the-counter
market has been suspended (including an automatic halt in trading pursuant to market-decline
triggers, other than those in which solely program trading is temporarily halted), or
limitations on prices for trading (other than limitations on hours or numbers of days
of trading) have been fixed, or maximum ranges for prices for securities have been
required, by any such exchange or FINRA or the over-the-counter market or by order of
the Commission or any other governmental authority, or (v) any federal, state, local
or foreign statute, regulation, rule or order of any court or other governmental authority
has been enacted, published, decreed or otherwise promulgated which, in the reasonable
opinion of the Representative, materially adversely affects or will materially adversely
affect the business or operations of the Company, or (vi) any action has been taken
by any federal, state, local or foreign government or agency in respect of its monetary
or fiscal affairs which, in the reasonable opinion of the Representative, could reasonably
be expected to have a material adverse effect on the securities markets in the United
States. |
| (b) | If
the Representative elects to terminate this Agreement as provided in this Section 9,
the Company and the Underwriters shall be notified promptly by telephone, promptly confirmed
by facsimile. |
| (c) | If
the sale to the Underwriters of the Shares, as contemplated by this Agreement, is not
carried out by the Underwriters for any reason permitted under this Agreement or if such
sale is not carried out because the Company shall be unable to comply in all material
respects with any of the terms of this Agreement, the Company shall not be under any
obligation or liability under this Agreement (except to the extent provided in Section
4 and Section 11 hereof), and the Underwriters shall be under no
obligation or liability to the Company under this Agreement (except to the extent provided
in Section 11 hereof) or to one another hereunder. |
| 10. | Increase
in Underwriters’ Commitments. If any Underwriter defaults at the Closing Time
or on any Option Closing Time in its obligation to take up and pay for the Shares to
be purchased by it under this Agreement on such date, the Representative shall have the
right, within 36 hours after such default, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not less
than all, of the Shares which such Underwriter shall have agreed but failed to take up
and pay for (the “Defaulted Shares”). Absent the completion of such
arrangements within such 36-hour period, (i) if the total number of Defaulted Shares
does not exceed 10% of the total number of Shares to be purchased on such date, each
non-defaulting Underwriter shall take up and pay for (in addition to the number of Shares
that it is otherwise obligated to purchase on such date pursuant to this Agreement) the
portion of the total number of Shares agreed to be purchased by the defaulting Underwriter
on such date in the proportion that its underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters; and (ii) if the total
number of Defaulted Shares exceeds 10% of such total, the Representative may terminate
this Agreement by notice to the Company, without liability of any party to any other
party except that the provisions of Section 3 and Section 7
hereof shall at all times be effective and shall survive such termination. |
Without relieving
any defaulting Underwriter from its obligations hereunder, the Company agrees with the non-defaulting Underwriters that it will
not sell any Shares hereunder on such date unless all of the Shares to be purchased on such date are purchased on such date by
the Underwriters (or by substituted Underwriters selected by the Representative with the approval of the Company or selected by
the Company with the approval of the Representative).
If a new
Underwriter or Underwriters are substituted for a defaulting Underwriter in accordance with the foregoing provision, the Company
or the non-defaulting Underwriters shall have the right to postpone the Closing Time or the relevant Option Closing Time for a
period not exceeding five business days in order that any necessary changes in the Offering Statement and Offering Circular and
other documents may be effected.
The term
“Underwriter” as used in this Agreement shall refer to and include any Underwriter substituted under this Section 10 with the same effect as if such substituted Underwriter had originally been named in this Agreement.
| 11. | Indemnity
and Contribution by the Company and the Underwriters. |
| (a) | The
Company agrees to indemnify, defend and hold harmless each Underwriter and any person
who controls any Underwriter within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, and the respective directors, officers, employees
and agents of each Underwriter from and against any loss, expense, liability, damage
or claim (including the reasonable cost of investigation) which, jointly or severally,
any such Underwriter or controlling person may incur under the Securities Act, the Exchange
Act or otherwise, insofar as such loss, expense, liability, damage or claim arises out
of or is based upon (A) any breach of any representation, warranty or covenant of
the Company contained herein, (B) any failure on the part of the Company to comply
with any applicable law, rule or regulation relating to the offering of securities being
made pursuant to the Offering Circular, (C) any untrue statement or alleged untrue
statement of a material fact contained in the Offering Statement (or any amendment),
any Testing-the-Waters Communication that the Company has filed or was required to file
with the Commission or is otherwise required retain, or the Offering Circular and Disclosure
Package (the term Offering Circular for the purpose of this Section 11
being deemed to include any Preliminary Offering Circular, the Offering Circular and
the Offering Circular as amended or supplemented by the Company), (D) any application
or other document, or any amendment or supplement thereto, executed by the Company or
based upon written information furnished by or on behalf of the Company filed in any
jurisdiction (domestic or foreign) in order to qualify the Shares under the securities
or blue sky laws thereof or filed with the Commission or any securities association or
securities exchange (each an “Application”), (E) any omission
or alleged omission to state a material fact required to be stated in any such Offering
Statement, or necessary to make the statements made therein not misleading, (F) any
omission or alleged omission from any such Testing-the-Waters Communication, Offering
Circular or any Application of a material fact necessary to make the statements made
therein, in the light of the circumstances under which they were made, not misleading,
(G) any untrue statement or alleged untrue statement of any material fact contained
in any audio or visual materials used in connection with the marketing of the Shares,
including, without limitation, slides, videos, films and tape recordings; except, in
the case of (C), (E) and (F) above only, insofar as any such loss, expense,
liability, damage or claim arises out of or is based upon any untrue statement or alleged
untrue statement or omission or alleged omission of a material fact contained in and
in conformity with information furnished in writing by the Underwriters through the Representative
to the Company expressly for use in such Offering Statement, Offering Circular or Application.
The indemnity agreement set forth in this Section 11(a) shall be in
addition to any liability which the Company may otherwise have. |
If any action
is brought against an Underwriter or controlling person in respect of which indemnity may be sought against the Company pursuant
to the foregoing paragraph, such Underwriter shall promptly notify the Company in writing of the institution of such action, and
the Company shall assume the defense of such action, including the employment of counsel and payment of expenses; provided, however, that any failure or delay to so notify the Company will not relieve the Company of any obligation hereunder,
except to the extent that its ability to defend is actually impaired by such failure or delay. Such Underwriter or controlling
person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall
be at the expense of such Underwriter or such controlling person unless the employment of such counsel shall have been authorized
in writing by the Company in connection with the defense of such action, or the Company shall not have employed counsel to have
charge of the defense of such action within a reasonable time or such indemnified party or parties shall have reasonably concluded
(based on the advice of counsel) that there may be defenses available to it or them that are different from or additional
to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on
behalf of the indemnified party or parties), in any of which events such fees and expenses shall be borne by the Company and paid
as incurred (it being understood, however, that the Company shall not be liable for the expenses of more than one separate firm
of attorneys for the Underwriters or controlling persons in any one action or series of related actions in the same jurisdiction
(other than local counsel in any such jurisdiction) representing the indemnified parties who are parties to such action).
Anything in this paragraph to the contrary notwithstanding, the Company shall not be liable for any settlement of any such claim
or action effected without its consent.
| (b) | Each
Underwriter agrees, severally and not jointly, to indemnify, defend and hold harmless the
Company, the Company’s directors, the Company’s officers that signed the Offering
Statement, and any person who controls the Company within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act, from and against any loss,
expense, liability, damage or claim (including the reasonable cost of investigation) which
the Company or any such person may incur under the Securities Act, the Exchange Act or otherwise,
insofar as such loss, expense, liability, damage or claim arises out of or is based upon
(A) any untrue statement or alleged untrue statement of a material fact contained in
the Offering Statement (or any amendment), any Testing-the-Waters Communication that the
Company has filed or was required to file with the Commission, or the Offering Circular,
or any Application, (B) any omission or alleged omission to state a material fact required
to be stated in any such Offering Statement, or necessary to make the statements made therein
not misleading, or (C) any omission or alleged omission from any such Testing-the-Waters
Communication, Offering Circular or any Application of a material fact necessary to make
the statements made therein, in the light of the circumstances under which they were made,
not misleading, but in each case only insofar as such untrue statement or alleged untrue
statement or omission or alleged omission was made in such Offering Statement, Testing-the-Waters
Communication, Offering Circular or Application in reliance upon and in conformity with information
furnished in writing by the Underwriters through the Representative to the Company expressly
for use therein. The statements set forth in the paragraphs identified by “Stabilization”
under the caption “Underwriting” in the Preliminary Offering Circular, the Disclosure
Package, and the Offering Circular (to the extent such statements relate to the Underwriters) constitute
the only information furnished by or on behalf of any Underwriter through the Representative
to the Company for purposes of Section 2(l), Section 2(m)
and this Section 11. |
If any action
is brought against the Company, or any such person in respect of which indemnity may be sought against any Underwriter pursuant
to the foregoing paragraph, the Company or such person shall promptly notify the Representative in writing of the institution
of such action and the Representative, on behalf of the Underwriters, shall assume the defense of such action, including the employment
of counsel and payment of expenses. The Company or such person shall have the right to employ its own counsel in any such case,
but the fees and expenses of such counsel shall be at the expense of the Company or such person unless the employment of such
counsel shall have been authorized in writing by the Representative in connection with the defense of such action or the Representative
shall not have employed counsel to have charge of the defense of such action within a reasonable time or such indemnified party
or parties shall have reasonably concluded (based on the advice of counsel) that there may be defenses available to it or
them which are different from or additional to those available to the Underwriters (in which case the Representative shall not
have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events such
fees and expenses shall be borne by such Underwriter and paid as incurred (it being understood, however, that the Underwriters
shall not be liable for the expenses of more than one separate firm of attorneys in any one action or series of related actions
in the same jurisdiction (other than local counsel in any such jurisdiction) representing the indemnified parties who are
parties to such action). Anything in this paragraph to the contrary notwithstanding, no Underwriter shall be liable for any settlement
of any such claim or action effected without the Representative's written consent.
If the indemnification
provided for in this Section 11 is unavailable or insufficient to hold harmless an indemnified party under subsection
(a) and (b) of this Section 11 in respect of any losses, expenses, liabilities, damages or claims
referred to therein, then each applicable indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses, expenses, liabilities, damages or claims (i) in such
proportion as is appropriate to reflect the relative benefits received by the Company and the Underwriters from the offering of the Shares
or (ii) if (but only if) the allocation provided by clause (i) above is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company
and of the Underwriters in connection with the statements or omissions which resulted in such losses, expenses, liabilities, damages
or claims, as well as any other relevant equitable considerations. The relative benefits received by the Company and the Underwriters
shall be deemed to be in the same proportion as the total proceeds from the offering (net of underwriting discounts and commissions but
before deducting expenses) received by the Company bear to the underwriting discounts and commissions received by the Underwriters.
The relative fault of the Company and of the Underwriters shall be determined by reference to, among other things, whether the untrue
statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company
or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The amount paid or payable by a party as a result of the losses, claims, damages, and liabilities referred
to above shall be deemed to include any legal or other fees or expenses reasonably incurred by such party in connection with investigating
or defending any claim or action.
The Company and
the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 11
were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations referred to in subsection (c)(i) and, if
applicable (ii), above. Notwithstanding the provisions of this Section 11, no Underwriter shall be required
to contribute any amount in excess of the underwriting discounts and commissions applicable to the Shares purchased by such Underwriter.
No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall
be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations
to contribute pursuant to this Section 11 are several in proportion to their respective underwriting commitments
and not joint.
| 12. | Survival.
The indemnity and contribution agreements contained in Section 11
and the covenants, warranties, and representations of the Company contained in Section
2 and Section 3 of this Agreement shall remain in full force and
effect regardless of any investigation made by or on behalf of any Underwriter, or any
person who controls any Underwriter within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, and the respective directors, officers, employees
and agents of each Underwriter or by or on behalf of the Company, its directors and officers,
or any person who controls the Company within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act and shall survive any termination of this
Agreement or the sale and delivery of the Shares. The Company and each Underwriter agree
promptly to notify the others of the commencement of any litigation or proceeding against
it and, in the case of the Company, against any of the Company’s officers and directors,
in connection with the sale and delivery of the Shares, or in connection with the Offering
Statement or Offering Circular. |
| 13. | Duties.
Nothing in this Agreement shall be deemed to create a partnership, joint venture or agency
relationship between the parties. The Underwriters undertake to perform such duties and
obligations only as expressly set forth herein. Such duties and obligations of the Underwriters
with respect to the Shares shall be determined solely by the express provisions of this
Agreement, and the Underwriters shall not be liable except for the performance of such
duties and obligations with respect to the Shares as are expressly set forth in this
Agreement. The Company acknowledges and agrees that: (i) the purchase and sale of
the Shares pursuant to this Agreement, including the determination of the public offering
price of the Shares and any related discounts and commissions, is an arm’s-length
commercial transaction between the Company, on the one hand, and the several Underwriters,
on the other hand, and the Company is capable of evaluating and understanding and understands
and accepts the terms, risks and conditions of the transactions contemplated by this
Agreement; (ii) in connection with each transaction contemplated hereby and the
process leading to such transaction each Underwriter is and has been acting solely as
a principal and is not the financial advisor, agent or fiduciary of the Company or its
affiliates, stockholders, creditors or employees or any other party; (iii) no Underwriter
has assumed or will assume an advisory, agency or fiduciary responsibility in favor of
the Company with respect to any of the transactions contemplated hereby or the process
leading thereto (irrespective of whether such Underwriter has advised or is currently
advising the Company on other matters); and (iv) the several Underwriters and their
respective affiliates may be engaged in a broad range of transactions that involve interests
that differ from those of the Company and that the several Underwriters have no obligation
to disclose any of such interests. The Company acknowledges that the Underwriters disclaim
any implied duties (including any fiduciary duty), covenants, or obligations arising
from the Underwriters’ performance of the duties and obligations expressly set
forth herein. The Company hereby waives and releases, to the fullest extent permitted
by law, any claims that the Company may have against the several Underwriters with respect
to any breach or alleged breach of agency or fiduciary duty. |
| 14. | Representations,
Warranties, Agreements to Survive. All representations, warranties, and agreements
contained in this Agreement or certificates of officers of the Company submitted pursuant
hereto shall remain operative and in full force and effect regardless of (i) any
investigation made by or on behalf of any Underwriter or its affiliates or selling agents,
any person controlling any Underwriter, its officers or directors or (ii) delivery
of and payment for the Shares. |
| 15. | Notices.
All communications hereunder, except as herein otherwise expressly provided, shall be
in writing and shall be mailed (registered or certified mail, return receipt requested),
emailed or personally delivered and shall be deemed given when so delivered or emailed
or, if mailed, two (2) days after such mailing. |
If
to the Representative:
Network 1 Financial Securities,
Inc.
The Galleria, Penthouse
0 Xxxxxx Xxxxxx, Xxxxxxxx
0
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxxx,
Managing Director
With copies to
(which shall not constitute notice):
Carmel, Xxxxxxx & Xxxx,
LLP
00 Xxxx 00xx Xxxxxx, 00xx
Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx X. Xxxxxx, Esq.
Email-: xxxxxxx@xxxxxx.xxx
If to the Company:
Prometheum, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxx, CEO
Title: Co-CEO, President,
Secretary
With copies to (which
shall not constitute notice):
Gusrae Xxxxxx Xxxxxxx PLLC
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx,
Esq.
Email: xxxxxxx@xxxxxxxxxxxx.xxx
| 16. | Governing
Law; Consent to Jurisdiction; Trial by Jury. This Agreement shall be governed by and
construed, and enforced in accordance with the laws of the State of New York, without giving
effect to conflict of laws principles thereof. The Company hereby agrees that any action,
proceeding or claim against it arising out of, or relating in any way to this Agreement shall
be brought and enforced in the New York Supreme Court, County of New York, or in the United
States District Court for the Southern District of New York, and irrevocably submits to such
jurisdiction, which jurisdiction shall be exclusive. The Company hereby waives any objection
to such exclusive jurisdiction and that such courts represent an inconvenient forum. Any
such process or summons to be served upon the Company may be served by transmitting a copy
thereof by registered or certified mail, return receipt requested, postage prepaid, addressed
to it at the address set forth in Section 15 hereof. Such mailing shall
be deemed personal service and shall be legal and binding upon the Company in any action,
proceeding, or claim. The Company and the Underwriters agree that the prevailing party or
parties in any such action shall be entitled to recover from the other party or parties all
of its reasonable attorneys’ fees and expenses relating to such action or proceeding
and incurred in connection with the preparation therefor. The Company (on its behalf and,
to the extent permitted by applicable law, on behalf of its stockholders and affiliates) and
each of the Underwriters hereby irrevocably waives, to the fullest extent permitted by applicable
law, any right to a trial by jury in any legal proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby. |
| 17. | Execution
in Counterparts. This Agreement may be executed in one or more counterparts, each
of which shall be deemed to be an original, but all of which taken together shall constitute
one and the same agreement and shall become effective when one or more counterparts has
been signed by each of the parties hereto and delivered to each of the other parties
hereto. Delivery of a signed counterpart of this Agreement by email/pdf transmission
shall constitute valid and sufficient delivery thereof. |
| 18. | Waiver,
Etc. The failure of any of the parties hereto at any time to enforce any of the provisions
of this Agreement shall not be deemed or construed to be a waiver of any such provision,
nor to in any way affect the validity of this Agreement or any provision hereof or the
right of any of the parties to this Agreement to enforce every provision of this Agreement
thereafter. No waiver of any breach, non-compliance, or non-fulfillment of any of the
provisions of this Agreement shall be effective unless set forth in a written instrument
executed by the party or parties against whom or which enforcement of such waiver is
sought; and no waiver of any such breach, non-compliance or non-fulfillment shall be
construed or deemed to be a waiver of any other or subsequent breach, non-compliance
or non-fulfillment. |
| 19. | Headings.
The section headings in this Agreement have been inserted as a matter of convenience
and are not a part of this Agreement. |
| 20. | Parties
at Interest. The Agreement herein set forth has been made solely for the benefit
of the Underwriters, the Company, and the controlling persons, directors, and officers
referred to in Section 11 and Section 12 hereof, and their
respective successors, assigns, executors, and administrators. No other person, partnership,
association, or corporation (including a purchaser, as such purchaser, from any of the
Underwriters) shall acquire or have any right under or by virtue of this Agreement. |
| 21. | Counterparts
and Facsimile and Electronic Signatures. This Agreement may be signed by the parties
in counterparts, which together shall constitute one and the same fully-executed agreement
among the parties. A facsimile or electronic signature shall constitute an original signature
for all purposes. |
[SIGNATURE
PAGE FOLLOWS]
If the foregoing correctly sets forth
the understanding among the Company and the Underwriters, please indicate in the space provided below for the purpose, whereupon
this Agreement shall constitute a binding agreement among the Company and the Underwriters.
|
Very truly yours, |
|
|
|
|
PROMETHEUM, INC. |
|
|
|
|
By: |
|
|
|
Name: |
Xxxxxx Xxxxxx |
|
|
Title: |
Executive Vice President and Chief Financial
Officer |
Confirmed
as of the date first written above-mentioned, on behalf of itself and as Representative of the several Underwriters named on Schedule I hereto:
NETWORK 1 FINANCIAL SECURITIES,
INC. |
|
|
|
|
By: |
|
|
|
Name: |
Xxxxx X. Xxxxxxxxxx |
|
|
Title: |
Managing Director |
|
|
|
|
SCHEDULE
I
Underwriter | |
Total
Number of
Shares to be Purchased | | |
Number
of Shares to
be Purchased if the
Over-Allotment
Option is Fully Exercised | |
Network 1 Financial Securities, Inc. | |
| | | |
| | |
| |
| | | |
| | |
Total | |
| 6,250,000 | | |
| 937,500 | |
SCHEDULE
II
Testing-the-Waters
Communications
SCHEDULE
III
List
of Lock-Up Parties
|
|
Executive
Officers and Directors: |
|
|
|
Xxxxxx X. Xxxxxx |
Chairman and Director |
|
|
Xxxxx X. Xxxxxx |
Co-Chief Executive
Officer, Chief Financial Officer, President, Secretary, Director |
|
|
Xxxxxxxx X. Xxxxxx |
Co-Chief Executive
Officer, Chief Regulatory Officer, Director |
|
|
Xxxx Xxxxxxx |
Chief Strategy
Officer |
|
|
Xxxxxx Xxxxxxx |
Chief Technology
Officer |
|
|
Xx. Xxxx Xxxx |
Director |
|
|
Xxxxx Xxxxxxxxx |
Director |
|
|
5% and
More Stockholders: |
|
|
|
HashKey Digital
Asset Group |
|
|
|
Triple A Investment Co., Ltd. |
|
EXHIBIT
A
Form
of Underwriter’s Warrant
EXHIBIT
B
Form
of Lock-Up Agreement