EXHIBIT 1.1
____________ SHARES of
Common Stock and
_________
Warrants TO PURCHASE _________ SHARES OF COMMON STOCK
of
AUTO PARTS 4LESS GROUP, INC.
UNDERWRITING AGREEMENT
______, 2022
Maxim Group LLC
As Representative of the
Several underwriters, if any, named in Schedule I hereto
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
The undersigned, Auto Parts 4Less
Group, Inc., a company incorporated under the laws of Nevada (collectively with its subsidiaries and affiliates, including, without limitation,
all entities disclosed or described in the Registration Statement as being subsidiaries or affiliates of Auto Parts 4Less Group, Inc.,
the “Company”), hereby confirms its agreement (this “Agreement”) with the several underwriters (such
underwriters, including the Representative (as defined below), the “Underwriters” and each an “Underwriter”)
named in Schedule I hereto for which Maxim Group LLC is acting as representative to the several Underwriters (the “Representative”
and if there are no Underwriters other than the Representative, references to multiple Underwriters shall be disregarded and the term
Representative as used herein shall have the same meaning as Underwriter) on the terms and conditions set forth herein.
It is understood that the several
Underwriters are to make a public offering of the Public Securities as soon as the Representative deems it advisable to do so. The Public
Securities are to be initially offered to the public at the public offering price set forth in the Prospectus.
It is further understood that
you will act as the Representative for the Underwriters in the offering and sale of the Closing Securities and, if any, the Option Securities
in accordance with this Agreement.
ARTICLE I.
DEFINITIONS
1.1 Definitions.
In addition to the terms defined elsewhere in this Agreement, for all purposes of this Agreement, the following terms have the meanings
set forth in this Section 1.1:
“Action”
shall have the meaning ascribed to such term in Section 3.1(k).
“Affiliate”
means with respect to any Person, any other Person that, directly or indirectly through one or more intermediaries, controls or is controlled
by or is under common control with such Person as such terms are used in and construed under Rule 405 under the Securities Act.
“Board of Directors”
means the board of directors of the Company.
“Business Day”
means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by
law to remain closed; provided, however, for clarification, commercial banks shall not be deemed to be authorized or required
by law to remain closed due to “stay at home”, “shelter-in-place”, “non-essential employee”
or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority
so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in The City of New York generally
are open for use by customers on such day.
“Closing”
means the closing of the purchase and sale of the Closing Securities pursuant to Section 2.1.
“Closing Date”
means the hour and the date on the Trading Day on which all conditions precedent to (i) the Underwriters’ obligations to pay the
Closing Purchase Price and (ii) the Company’s obligations to deliver the Closing Securities, in each case, have been satisfied or
waived, but in no event later than 10:00 a.m. (New York City time) on the second (2nd) Trading Day following the date hereof
or at such earlier time as shall be agreed upon by the Representative and the Company.
“Closing Purchase
Price” shall have the meaning ascribed to such term in Section 2.1(b), which aggregate purchase price shall be net of the underwriting
discounts and commissions.
“Closing Securities”
shall have the meaning ascribed to such term in Section 2.1(a)(ii).
“Closing Shares”
shall have the meaning ascribed to such term in Section 2.1(a)(i).
“Closing Warrants”
shall have the meaning ascribed to such term in Section 2.1(a)(ii).
“Combined Purchase
Price” shall have the meaning ascribed to such term in Section 2.1(b).
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“Commission”
means the United States Securities and Exchange Commission.
“Common Stock”
means the common stock of the Company, par value $0.000001 per share, and any other class of securities into which such securities may
hereafter be reclassified or changed.
“Common Stock
Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire at any
time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any
time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Company Auditor”
means X X Xxxxxxxxx Associates, LLC.
“Company Counsel”
means Xxxxxxxxx X. Xxxxxx, P.A.
“Disclosure
Schedules” means the Disclosure Schedules of the Company delivered concurrently herewith.
“Effective
Date” means the date and time as of which the Registration Statement, or the most recent post-effective amendment thereto, became
effective, or is deemed to have become effective by the Commission, in accordance with the rules and regulations under the Securities
Act.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Execution
Date” shall mean the date on which the parties execute and enter into this Agreement.
“Exempt Issuance”
means the issuance of (a) shares of Common Stock or options to employees, officers or directors of the Company pursuant to any stock or
option plan duly adopted for such purpose by a majority of the non-employee members of the Board of Directors or a majority of the members
of a committee of non-employee directors established for such purpose for services rendered to the Company, (b) securities upon the exercise
or exchange of or conversion of any Securities issued hereunder and/or other securities exercisable or exchangeable for or convertible
into shares of Common Stock issued and outstanding on the date of this Agreement, provided that such securities have not been amended
since the date of this Agreement to increase the number of such securities or to decrease the exercise price, exchange price or conversion
price of such securities or to extend the term of such securities, and (c) securities issued pursuant to acquisitions or strategic transactions
approved by a majority of the disinterested directors of the Company, provided that such securities are issued as “restricted securities”
(as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection
therewith, and provided that any such issuance shall only be to a Person (or to the equity holders of a Person) which is, itself or through
its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide
to the Company additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is
issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities.
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“FCPA”
means the Foreign Corrupt Practices Act of 1977, as amended.
“FINRA”
means the Financial Industry Regulatory Authority.
“GAAP”
shall have the meaning ascribed to such term in Section 3.1(i).
“General Disclosure
Package” shall have the meaning ascribed to such term in Section 3.1(f).
“Indebtedness”
means (a) any liabilities for borrowed money or amounts owed in excess of $50,000 (other than trade accounts payable incurred in the ordinary
course of business), (b) all guaranties, endorsements and other contingent obligations in respect of indebtedness of others, whether or
not the same are or should be reflected in the Company’s consolidated balance sheet (or the notes thereto), except guaranties by
endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business; and (c) the
present value of any lease payments in excess of $50,000 due under leases required to be capitalized in accordance with GAAP.
“Liens”
means a lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.
“Lock-Up Agreements”
means the lock-up agreements that are delivered on the date hereof by each of the Company’s officers and directors and each holder
of Common Stock and Common Stock Equivalents holding, on a fully diluted basis, more than three (3)% of the Company’s issued and
outstanding Common Stock, in the form of Exhibit A attached hereto.
“Material Adverse
Effect” shall have the meaning assigned to such term in Section 3.1(b).
“Offering”
shall have the meaning ascribed to such term in Section 2.1(c).
“Option Closing
Date” shall have the meaning ascribed to such term in Section 2.2(c).
“Option Closing
Purchase Price” shall have the meaning ascribed to such term in Section 2.2(b), which aggregate purchase price shall be net
of the underwriting discounts and commissions.
“Option Securities”
shall have the meaning ascribed to such term in Section 2.2(a)(ii).
“Option Shares”
shall have the meaning ascribed to such term in Section 2.2(a)(i).
“Option Warrants”
shall have the meaning ascribed to such term in Section 2.2(a).
“Over-Allotment
Option” shall have the meaning ascribed to such term in Section 2.2(a).
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“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company,
joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Preliminary
Prospectus” shall have the meaning ascribed to such term in Section 3.1(f).
“Proceeding”
means an action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation or partial proceeding,
such as a deposition), whether commenced or threatened.
“Prospectus”
shall have the meaning ascribed to such term in Section 3.1(f).
“Public Securities”
means, collectively, the Closing Securities and, if any, the Option Securities.
“Registration
Statement” shall have the meaning ascribed to such term in Section 3.1(f).
“Representative’s
Warrants” shall have the meaning ascribed to such term in Section 2.3(iii).
“Required Approvals”
shall have the meaning ascribed to such term in Section 3.1(e).
“Rule 144”
means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from time to time,
or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such Rule.
“Rule 424”
means Rule 424 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from time to time,
or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such Rule.
“SEC Reports”
shall have the meaning ascribed to such term in Section 3.1(i).
“Securities”
means the Closing Securities, the Option Securities and the Warrant Shares.
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Share Purchase
Price” shall have the meaning ascribed to such term in Section 2.1(b).
“Shares”
means, collectively, the shares of Common Stock delivered to the Underwriters in accordance with Section 2.1(a)(i) and Section 2.2(a).
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“SRF”
means Xxxxxxxxx Xxxx Xxxxxxx LLP, with offices located at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
“Subsidiary”
means any subsidiary of the Company and shall, where applicable, also include any direct or indirect subsidiary of the Company formed
or acquired after the date hereof.
“Trading Day”
means a day on which the principal Trading Market is open for trading.
“Trading Market”
means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the
NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, or the New York Stock Exchange (or
any successors to any of the foregoing).
“Transaction
Documents” means this Agreement and all exhibits and schedules hereto, the Warrants, the Warrant Agency Agreement, the Lock-Up
Agreements, and any other documents or agreements executed in connection with the transactions contemplated hereunder.
“Transfer Agent”
means Clear Trust, LLC, the current transfer agent of the Company, with offices located at 00000 Xxxxxx Xxxxxxx Xx Xxxxx 000, Xxxx, XX
00000, and any successor transfer agent of the Company.
“Units”
shall have the meaning ascribed to such term in Section 2.1(a).
“Warrant Agency
Agreement” means the warrant agency agreement dated on or about the date hereof, among the Company and Clear Trust, LLC in the
form of Exhibit C attached hereto.
“Warrant Purchase
Price” shall have the meaning ascribed to such term in Section 2.1(b).
“Warrant Shares”
means the shares of Common Stock issuable upon exercise of the Warrants.
“Warrants”
means, collectively, the Common Stock purchase warrants delivered to the Underwriters in accordance with Section 2.1(a)(ii) and Section
2.2, which Warrants shall be exercisable immediately and have a term of exercise equal to five years, in the form of Exhibit B
attached hereto.
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ARTICLE II.
PURCHASE AND SALE
2.1 Closing.
(a) Upon
the terms and subject to the conditions set forth herein, the Company agrees to sell in the aggregate ________ units (the “Units”
or the “Closing Securities”) of the Company as set forth on Schedule I hereto, each consisting of one share
of Common Stock together with one Warrant to purchase one share of Common stock at an exercise price of $___ per share, subject to adjustment
as provided therein. The Units will not be certificated. The Common Stock and Warrants that comprise the Units are immediately separable
and will be issued separately.
(b) The
aggregate purchase price for the Units shall equal the amount set forth opposite the name of such Underwriter on Schedule I hereto
(the “Closing Purchase Price”). The purchase price for one Unit consisting of one share of Common Stock and one Warrant
shall be $____ (representing a 7.5% discount to the public offering price).
(c) On
the Closing Date, each Underwriter shall deliver or cause to be delivered to the Company, via wire transfer, immediately available funds
equal to such Underwriter’s Closing Purchase Price and the Company shall deliver to, or as directed by, such Underwriter its respective
Closing Securities and the Company shall deliver the other items required pursuant to Section 2.3 deliverable at the Closing. Upon satisfaction
of the covenants and conditions set forth in Sections 2.3 and 2.4, the Closing shall occur at the offices of SRF or such other location
as the Company and Representative shall mutually agree. The Public Securities are to be offered initially to the public at the offering
price set forth on the cover page of the Prospectus (the “Offering”).
2.2 Over-Allotment
Option.
(a) For
the purposes of covering any over-allotments in connection with the distribution and sale of the Closing Securities, the Representative
is hereby granted an option (the “Over-Allotment Option”) to purchase, in the aggregate, up to _____ shares of Common
Stock (the “Option Shares”) and/or Warrants to purchase up to ____ shares of Common Stock (the “Option Warrants”
and, collectively with the Option Shares, the “Option Securities”)1 which
may be purchased in any combination of Option Shares and/or Option Warrants at the Share Purchase Price and/or Warrant Purchase Price,
respectively.
(b) In
connection with an exercise of the Over-Allotment Option, (a) the purchase price to be paid for the Option Shares is equal to the product
of $___ multiplied by the number of Option Shares to be purchased and (b) the purchase price to be paid for the Option Warrants is equal
to the product of the Warrant Purchase Price multiplied by the number of Option Warrants to be purchased (the aggregate purchase price
to be paid on an Option Closing Date, the “Option Closing Purchase Price”).
_____________________________
1 15% of the Closing Securities.
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(c) The
Over-Allotment Option granted pursuant to this Section 2.2 may be exercised by the Representative as to all (at any time) or any part
(from time to time) of the Option Securities within 45 days after the Execution Date. An Underwriter will not be under any obligation
to purchase any Option Securities prior to the exercise of the Over-Allotment Option by the Representative. 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 facsimile or other electronic transmission setting forth the number of Option Shares and/or Option Warrants to be
purchased and the date and time for delivery of and payment for the Option Securities (each, an “Option Closing Date”),
which will not be later than two (2) 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 SRF or at such other place (including remotely by facsimile or other electronic transmission)
as shall be agreed upon by the Company and the Representative. If such delivery and payment for the Option Securities does not occur on
the Closing Date, each Option Closing Date will be as set forth in the notice. Upon exercise of the Over-Allotment Option, the Company
will become obligated to convey to the Underwriters, and, subject to the terms and conditions set forth herein, the Underwriters will
become obligated to purchase, the number of Option Shares and/or Option Warrants specified in such notice. The Representative may cancel
the Over-Allotment Option at any time prior to the expiration of the Over-Allotment Option by written notice to the Company.
2.3 Deliveries.
The Company shall deliver or cause to be delivered to each Underwriter (if applicable) the following:
(i) At
the Closing Date, the Shares and, as to each Option Closing Date, if any, the applicable Option Shares, which shares shall be delivered
via The Depository Trust Company Deposit or Withdrawal at Custodian system for the accounts of the several Underwriters;
(ii) At
the Closing Date, the Warrants and, as to each Option Closing Date, if any, the applicable Option Warrants via The Depository Trust Company
Deposit or Withdrawal at Custodian system for the accounts of the several Underwriters;
(iii) At
the Closing Date and on each Option Closing Date, to the Representative, a Warrant to purchase up to a number of shares of Common Stock
equal to eight (8)% of the aggregate number of Closing Securities issued on the Closing Date and Option Closing Date, as applicable, for
the account of the Representative (or its designees), which warrant shall have an exercise price of $____2,
subject to adjustment therein, and registered in the name of the Representative, otherwise on the same terms as the Warrants subject to
compliance with the lock-up and transfer restrictions in FINRA Rule 5110(e) and the provisions of Rule 5110(g)(8);
(iv) At
the Closing Date, the Warrant Agency Agreement duly executed by the parties thereto;
_____________________________
2 110% of the public offering price.
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(v) At
the Closing Date, and on each Option Closing Date, if any, a legal opinion of Company Counsel addressed to the Underwriters, including,
without limitation, a negative assurance letter, substantially in form and substance reasonably satisfactory to the Representative and
as to the Closing Date and as to each Option Closing Date, if any, a bring-down opinion from Company Counsel in form and substance reasonably
satisfactory to the Representative, including, without limitation, a negative assurance letter, addressed to the Underwriters and in form
and substance satisfactory to the Representative;
(vi) Contemporaneously
herewith, a cold comfort letter, addressed to the Underwriters and in form and substance satisfactory in all respects to the Representative
from the Company Auditor dated, respectively, as of the date of this Agreement and a bring-down letter dated as of the Closing Date and
each Option Closing Date, if any;
(vii) On
the Closing Date and on each Option Closing Date, the duly executed and delivered Officer’s Certificate, substantially in form and
substance reasonably satisfactory to the Representative;
(viii) On
the Closing Date and on each Option Closing Date, the duly executed and delivered Secretary’s Certificate, substantially in form
and substance reasonably satisfactory to the Representative;
(ix) On
the Closing Date and on each Option Closing Date, the duly executed and delivered certificate (addressed to the Underwriters) of _____
Officer with respect to certain regulatory matters substantially in form and substance reasonably satisfactory to counsel for the Representative;
and
(x) Contemporaneously
herewith, the duly executed and delivered Lock-Up Agreements.
2.4 Closing
Conditions. The respective obligations of each Underwriter hereunder in connection with the Closing and each Option Closing Date are
subject to the following conditions being met:
(i) the
accuracy in all material respects when made and on the date in question (other than representations and warranties of the Company already
qualified by materiality, which shall be true and correct in all respects) of the representations and warranties of the Company contained
herein (unless as of a specific date therein);
(ii) all
obligations, covenants and agreements of the Company required to be performed at or prior to the date in question shall have been performed;
(iii) the
delivery by the Company of the items set forth in Section 2.3 of this Agreement;
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(iv) the
Registration Statement shall be effective on the date of this Agreement and at each of the Closing Date and each Option Closing Date,
if any, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose
shall have been instituted or shall be pending or contemplated by the Commission and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of the Representative;
(v) by
the Execution Date, if required by FINRA, the Underwriters shall have received a notice of no objection from FINRA as to the amount of
compensation allowable or payable to and the terms and arrangements for acting as the Underwriters as described in the Registration Statement;
(vi) the
Shares, the Option Shares and the Warrant Shares have been approved for listing on the Trading Market; and
(vii) prior
to and on each of the Closing Date and each Option Closing Date, if any: (i) there shall have been no material adverse change or development
involving a prospective material adverse change in the condition or prospects or the business activities, financial or otherwise, of the
Company from the latest dates as of which such condition is set forth in the Registration Statement, the General Disclosure Package and
Prospectus; (ii) no action suit or proceeding, at law or in equity, shall have been pending or threatened against the Company or any Affiliate
of the Company before or by any court or federal or state commission, board or other administrative agency wherein an unfavorable decision,
ruling or finding may materially adversely affect the business, operations, prospects or financial condition or income of the Company,
except as set forth in the Registration Statement, the General Disclosure Package and Prospectus; (iii) no stop order applicable to the
Company shall have been issued under the Securities Act and no proceedings therefor shall have been initiated or threatened by the Commission;
(iv) the Company has not incurred any material liabilities or obligations, direct or contingent, nor has it entered into any material
transactions not in the ordinary course of business, other than pursuant to this Agreement and the transactions referred to herein; (v)
the Company has not paid or declared any dividends or other distributions of any kind on any class of its capital stock; (vi) the Company
has not altered its method of accounting; and (vii) the Registration Statement, the General Disclosure Package and the Prospectus 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 rules and regulations thereunder and shall conform in all material respects to the requirements of the Securities
Act and the rules and regulations thereunder, and neither the Registration Statement, the General Disclosure Package nor the Prospectus
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.
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If any of the conditions specified in this Section
2.4 shall not have been fulfilled when and as required by this Agreement, or if any of the certificates, opinions, written statements
or letters furnished to the Representative or to Representative’s counsel pursuant to this Section 2.4 shall not be reasonably satisfactory
in form and substance to the Representative and to Representative’s counsel, all obligations of the Underwriters hereunder may be
cancelled by the Representative at, or at any time prior to, the consummation of the Closing. Notice of such cancellation shall be given
to the Company in writing or orally. Any such oral notice shall be confirmed promptly thereafter in writing.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
3.1 Representations
and Warranties of the Company. Except as set forth in the Disclosure Schedules, which Disclosure Schedules shall be deemed a part
hereof and shall qualify any representation or otherwise made herein to the extent of the disclosure contained in the corresponding section
of the Disclosure Schedules, the Company represents and warrants to the Underwriters as of the Execution Date, as of the Closing Date
and as of each Option Closing Date, if any, as follows:
(a) Subsidiaries.
All of the direct and indirect Subsidiaries of the Company are set forth in the Registration Statement and Prospectus. The Company owns,
directly or indirectly, all of the capital stock or other equity interests of each Subsidiary free and clear of any Liens, and all of
the issued and outstanding shares of capital stock of each Subsidiary are validly issued and are fully paid, non-assessable and free of
preemptive and similar rights to subscribe for or purchase securities. If the Company has no Subsidiaries, all other references to the
Subsidiaries or any of them in the Transaction Documents shall be disregarded.
(b) Organization
and Qualification. The Company and each of the Subsidiaries is an entity duly incorporated or otherwise organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite power and authority to
own and use its properties and assets and to carry on its business as currently conducted. Neither the Company nor any Subsidiary is in
violation nor default of any of the provisions of its respective certificate or articles of incorporation, bylaws or other organizational
or charter documents. Each of the Company and the Subsidiaries is duly qualified to conduct business and is in good standing as a foreign
corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification
necessary, except where the failure to be so qualified or in good standing, as the case may be, could not have or reasonably be expected
to result in: (i) a material adverse effect on the legality, validity or enforceability of any Transaction Document, (ii) a material adverse
effect on the results of operations, assets, business, prospects or condition (financial or otherwise) of the Company and the Subsidiaries,
taken as a whole, or (iii) a material adverse effect on the Company’s ability to perform in any material respect on a timely basis
its obligations under any Transaction Document (any of (i), (ii) or (iii), a “Material Adverse Effect”) and no 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.
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(c) Authorization;
Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated
by this Agreement and each of the other Transaction Documents to which the Company is a party and otherwise to carry out its obligations
hereunder and thereunder. The execution and delivery of this Agreement and each of the other Transaction Documents by the Company and
the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary action on the part
of the Company and no further action is required by the Company, the Board of Directors or the Company’s stockholders in connection
herewith or therewith other than in connection with the Required Approvals. This Agreement and each other Transaction Document to which
the Company is a party has been (or upon delivery will have been) duly executed by the Company and, when delivered in accordance with
the terms hereof and thereof, will constitute the valid and binding obligation of the Company enforceable against the Company in accordance
with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium
and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to
the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution
provisions may be limited by applicable law.
(d) No
Conflicts. The execution, delivery and performance by the Company of this Agreement and the other Transaction Documents to which it
is a party, the issuance and sale of the Securities and the consummation by it of the transactions contemplated hereby and thereby do
not and will not (i) conflict with or violate any provision of the Company’s or any Subsidiary’s certificate or articles of
incorporation, bylaws or other organizational or charter documents, or (ii) conflict with, or constitute a default (or an event that with
notice or lapse of time or both would become a default) under, result in the creation of any Lien upon any of the properties or assets
of the Company or any Subsidiary, or give to others any rights of termination, amendment, anti-dilution or similar adjustments, acceleration
or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument (evidencing
a Company or Subsidiary debt or otherwise) or other understanding to which the Company or any Subsidiary is a party or by which any property
or asset of the Company or any Subsidiary is bound or affected, or (iii) subject to the Required Approvals, conflict with or result in
a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority
to which the Company or a Subsidiary is subject (including federal and state securities laws and regulations), or by which any property
or asset of the Company or a Subsidiary is bound or affected; except in the case of each of clauses (ii) and (iii), such as could not
have or reasonably be expected to result in a Material Adverse Effect.
(e) Filings,
Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of, give any notice to,
or make any filing or registration with, any court or other federal, state, local or other governmental authority or other Person in connection
with the execution, delivery and performance by the Company of the Transaction Documents, other than: (i) the filing with the Commission
of the Prospectus and (ii) such filings as are required to be made under applicable state securities laws (collectively, the “Required
Approvals”).
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(f) Registration
Statement. The Company has filed with the Commission the Registration Statement, including any related Preliminary Prospectus or Prospectuses,
for the registration of the Securities under the Securities Act, which Registration Statement has been prepared by the Company in conformity
with the requirements of the Securities Act and the rules and regulations of the Commission under the Securities Act. The registration
of the Common Stock and Warrants under the Exchange Act has been declared effective by the Commission on the date hereof. Copies of such
Registration Statement and of each amendment thereto, if any, including the related Preliminary Prospectuses, heretofore filed by the
Company with the Commission have been delivered to the Underwriters. The term “Registration Statement” means such registration
statement on Form S-1 (File No. 333-262261), as amended, as of the relevant Effective Date, including financial statements, all exhibits
and any information deemed to be included or incorporated by reference therein, including any information deemed to be included pursuant
to Rule 430A or Rule 430B of the Securities Act and the rules and regulations thereunder, as applicable. If the Company files a registration
statement to register a portion of the Securities and relies on Rule 462(b) of the Securities Act and the rules and regulations thereunder
for such registration statement to become effective upon filing with the Commission (the “Rule 462 Registration Statement”),
then any reference to the “Registration Statement” shall be deemed to include the Rule 462 Registration Statement, as amended
from time to time. The term “Preliminary Prospectus” as used herein means a preliminary prospectus as contemplated
by Rule 430 or Rule 430A of the Securities Act and the rules and regulations thereunder as included at any time as part of, or deemed
to be part of or included in, the Registration Statement. The term “Prospectus” means the final prospectus in connection
with this Offering as first filed with the Commission pursuant to Rule 424(b) of the Securities Act and the rules and regulations thereunder
or, if no such filing is required, the form of final prospectus included in the Registration Statement at the Effective Date, except that
if any revised prospectus or prospectus supplement shall be provided to the Representative by the Company for use in connection with the
Securities which differs from the Prospectus (whether or not such revised prospectus or prospectus supplement is required to be filed
by the Company pursuant to Rule 424(b)), the term “Prospectus” shall also refer to such revised prospectus or prospectus supplement,
as the case may be, from and after the time it is first provided to the Representative for such use. Any reference herein to the terms
“amend”, “amendment” or “supplement” with respect to the Registration Statement, any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include: (i) the filing of any document under the Exchange Act after the Effective Date,
the date of such Preliminary Prospectus or the date of the Prospectus, as the case may be, which is incorporated therein by reference,
and (ii) any such document so filed. All references in this Agreement to the Registration Statement, a Preliminary Prospectus and the
Prospectus, or any amendments or supplements to any of the foregoing shall be deemed to include any copy thereof filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval System (“XXXXX”). The term “General Disclosure
Package” means, collectively, the Permitted Free Writing Prospectus(es) (as defined below) included on Schedule II hereto, the
most recent preliminary prospectus related to this offering, and the information included on Schedule I hereto.
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(g) Issuance
of Securities. The Securities are duly authorized and, when issued and paid for in accordance with the applicable Transaction Documents,
will be duly and validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company. The Warrant Shares
and shares of Common Stock issuable upon exercise of the Representative’s Warrant, when issued in accordance with the terms of the
Warrants and the Representative’s Warrant, respectively, will be validly issued, fully paid and nonassessable, free and clear of
all Liens imposed by the Company. The Company has reserved from its duly authorized capital stock the maximum number of shares of Common
Stock issuable pursuant to this Agreement and the Warrants and Representative’s Warrant. The holder of the Securities will not be
subject to personal liability by reason of being such holders. The Securities 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. All corporate action required to be
taken for the authorization, issuance and sale of the Securities has been duly and validly taken. The Securities conform in all material
respects to all statements with respect thereto contained in the Registration Statement, the General Disclosure Package and the Prospectus.
(h) Capitalization.
The capitalization of the Company is as set forth in the Registration Statement and Prospectus. The Company has not issued any capital
stock since its most recently filed periodic report under the Exchange Act, other than pursuant to the exercise of employee stock options
under the Company’s stock option plans, the issuance of shares of Common Stock to employees pursuant to the Company’s employee
stock purchase plans and pursuant to the conversion and/or exercise of Common Stock Equivalents outstanding as of the date of the most
recently filed periodic report under the Exchange Act. No Person has any right of first refusal, preemptive right, right of participation,
or any similar right to participate in the transactions contemplated by the Transaction Documents. Except as a result of the purchase
and sale of the Securities, there are no outstanding options, warrants, scrip rights to subscribe to, calls or commitments of any character
whatsoever relating to, or securities, rights or obligations convertible into or exercisable or exchangeable for, or giving any Person
any right to subscribe for or acquire, any shares of Common Stock or the capital stock of any Subsidiary, or contracts, commitments, understandings
or arrangements by which the Company or any Subsidiary is or may become bound to issue additional shares of Common Stock or Common Stock
Equivalents or the capital stock of any Subsidiary. The issuance and sale of the Securities will not obligate the Company or any Subsidiary
to issue shares of Common Stock or other securities to any Person (other than the Underwriters). There are no outstanding securities or
instruments of the Company or any Subsidiary with any provision that adjusts the exercise, conversion, exchange or reset price of such
security or instrument upon an issuance of securities by the Company or any Subsidiary. There are no outstanding securities or instruments
of the Company or any Subsidiary that contain any redemption or similar provisions, and there are no contracts, commitments, understandings
or arrangements by which the Company or any Subsidiary is or may become bound to redeem a security of the Company or such Subsidiary.
The Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement.
All of the outstanding shares of capital stock of the Company are duly authorized, validly issued, fully paid and nonassessable, have
been issued in compliance with all federal and state securities laws, and none of such outstanding shares was issued in violation of any
preemptive rights or similar rights to subscribe for or purchase securities. The authorized shares of the Company conform
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in all material respects
to all statements relating thereto contained in the Registration Statement and the Prospectus. The offers and sales of the Company’s
securities were at all relevant times either registered under the Securities Act and the applicable state securities or Blue Sky laws
or, based in part on the representations and warranties of the purchasers, exempt from such registration requirements. No further approval
or authorization of any stockholder, the Board of Directors or others is required for the issuance and sale of the Securities. There are
no stockholders agreements, voting agreements or other similar agreements with respect to the Company’s capital stock to which the
Company is a party or, to the knowledge of the Company, between or among any of the Company’s stockholders.
(i) SEC
Reports; Financial Statements. The Company has filed all reports, schedules, forms, statements and other documents required to be
filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the two
years preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such material) (the foregoing
materials, including the exhibits thereto and documents incorporated by reference therein, together with the Prospectus, being collectively
referred to herein as the “SEC Reports”) on a timely basis or has received a valid extension of such time of filing
and has filed any such SEC Reports prior to the expiration of any such extension. As of their respective dates, the SEC Reports complied
in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable, and none of the SEC Reports,
when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary
in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The Company has
never been an issuer subject to Rule 144(i) under the Securities Act. The financial statements of the Company included in the SEC Reports
comply in all material respects with applicable accounting requirements and the rules and regulations of the Commission with respect thereto
as in effect at the time of filing. Such financial statements have been prepared in accordance with United States generally accepted accounting
principles applied on a consistent basis during the periods involved (“GAAP”), except as may be otherwise specified
in such financial statements or the notes thereto and except that unaudited financial statements may not contain all footnotes required
by GAAP, and fairly present in all material respects the financial position of the Company and its consolidated Subsidiaries as of and
for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements,
to normal, immaterial, year-end audit adjustments. The selected financial data set forth under the caption “Selected Financial Data”
in the SEC Reports and “Summary of Financial Data” in the Registration Statement, General Disclosure Package, and Prospectus
fairly present, on the basis stated in such SEC Reports, Registration Statement, General Disclosure Package, and Prospectus, each as applicable,
the information included therein. The agreements and documents described in the Registration Statement, the Preliminary Prospectus, the
General Disclosure Package, the Prospectus, and the SEC Reports conform in all material aspects to the descriptions thereof contained
therein and there are no agreements or other documents required by the Securities Act and the rules and regulations thereunder to be described
in the Registration Statement, the Preliminary Prospectus, the General Disclosure Package, the Prospectus or the SEC Reports or to be
filed with the Commission as exhibits to the Registration Statement, that have not been so described or filed. Each agreement or other
instrument (however characterized or described) to which the Company is a party or by which it is or
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may be bound or affected
and (i) that is referred to in the Registration Statement, the General Disclosure Package, the Prospectus or the SEC Reports, or
(ii) is material to the Company’s business, has been duly authorized and validly executed by the Company, is in full force
and effect in all material respects and is enforceable against the Company and, to the Company’s knowledge, the other parties thereto,
in accordance with its terms, except (x) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar
laws affecting creditors’ rights generally, (y) as enforceability of any indemnification or contribution provision may be limited
under the federal and state securities laws, and (z) that the remedy of specific performance and injunctive and other forms of equitable
relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefore may be brought.
None of such agreements or instruments has been assigned by the Company, and neither the Company nor, to the best of the Company’s
knowledge, any other party is in default thereunder and, to the best of the Company’s knowledge, no event has occurred that, with
the lapse of time or the giving of notice, or both, would constitute a default thereunder. To the best of the Company’s knowledge,
performance by the Company of the material provisions of such agreements or instruments will not result in a violation of any existing
applicable law, rule, regulation, judgment, order or decree of any governmental agency or court, domestic or foreign, having jurisdiction
over the Company or any of its assets or businesses, including, without limitation, those relating to environmental laws and regulations.
(j) Material
Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest audited financial statements included within
the Registration Statement and Prospectus, except as specifically disclosed in Registration Statement and Prospectus, (i) there has been
no event, occurrence or development that has had or that could reasonably be expected to result in a Material Adverse Effect, (ii) the
Company has not incurred any liabilities (contingent or otherwise) other than (A) trade payables and accrued expenses incurred in the
ordinary course of business consistent with past practice and (B) liabilities not required to be reflected in the Company’s financial
statements pursuant to GAAP or disclosed in filings made with the Commission, (iii) the Company has not altered its method of accounting,
(iv) the Company has not declared or made any dividend or distribution of cash or other property to its stockholders or purchased, redeemed
or made any agreements to purchase or redeem any shares of its capital stock, (v) the Company has not issued any equity securities to
any officer, director or Affiliate, except pursuant to existing Company stock option plans and (vi) no officer or director of the Company
has resigned from any position with the Company. The Company does not have pending before the Commission any request for confidential
treatment of information. Except for the issuance of the Securities contemplated by this Agreement, no event, liability, fact, circumstance,
occurrence or development has occurred or exists or is reasonably expected to occur or exist with respect to the Company or its Subsidiaries
or their respective businesses, prospects, properties, operations, assets or financial condition that would be required to be disclosed
by the Company under applicable securities laws at the time this representation is made or deemed made that has not been publicly disclosed
at least 1 Trading Day prior to the date that this representation is made. Unless otherwise disclosed in the Registration Statement and
Prospectus, the Company has not: (i) issued any securities or incurred any liability or obligation, direct or contingent, for borrowed
money; or (ii) declared or paid any dividend or made any other distribution on or in respect to its capital stock.
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(k) Litigation.
There is no action, suit, inquiry, notice of violation, proceeding or investigation pending or, to the knowledge of the Company, threatened
against or affecting the Company, any Subsidiary or any of their respective properties before or by any court, arbitrator, governmental
or administrative agency or regulatory authority (federal, state, county, local or foreign) (collectively, an “Action”)
which (i) adversely affects or challenges the legality, validity or enforceability of any of the Transaction Documents or the Securities
or (ii) could, if there were an unfavorable decision, have or reasonably be expected to result in a Material Adverse Effect. Neither the
Company nor any Subsidiary, nor any director or officer thereof, is or has been the subject of any Action involving a claim of violation
of or liability under federal or state securities laws or a claim of breach of fiduciary duty. There has not been, and to the knowledge
of the Company, there is not pending or contemplated, any investigation by the Commission involving the Company or any current or former
director or officer of the Company. The Commission has not issued any stop order or other order suspending the effectiveness of any registration
statement filed by the Company or any Subsidiary under the Exchange Act or the Securities Act.
(l) Labor
Relations. No labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the employees of the Company,
which could reasonably be expected to result in a Material Adverse Effect. None of the Company’s or its Subsidiaries’ employees
is a member of a union that relates to such employee’s relationship with the Company or such Subsidiary, and neither the Company
nor any of its Subsidiaries is a party to a collective bargaining agreement, and the Company and its Subsidiaries believe that their relationships
with their employees are good. To the knowledge of the Company, no executive officer of the Company or any Subsidiary, is, or is now expected
to be, in violation of any material term of any employment contract, confidentiality, disclosure or proprietary information agreement
or non-competition agreement, or any other contract or agreement or any restrictive covenant in favor of any third party, and the continued
employment of each such executive officer does not subject the Company or any of its Subsidiaries to any liability with respect to any
of the foregoing matters. The Company and its Subsidiaries are in compliance with all U.S. federal, state, local and foreign laws and
regulations relating to employment and employment practices, terms and conditions of employment and wages and hours, except where the
failure to be in compliance could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(m) Compliance.
Neither the Company nor any Subsidiary: (i) is in default under or in violation of (and no event has occurred that has not been waived
that, with notice or lapse of time or both, would result in a default by the Company or any Subsidiary under), nor has the Company or
any Subsidiary received notice of a claim that it is in default under or that it is in violation of, any indenture, loan or credit agreement
or any other agreement or instrument to which it is a party or by which it or any of its properties is bound (whether or not such default
or violation has been waived), (ii) is in violation of any judgment, decree or order of any court, arbitrator or other governmental authority
or (iii) is or has been in violation of any statute, rule, ordinance or regulation of any governmental authority, including without limitation
all foreign, federal, state and local laws relating to taxes, environmental protection, occupational health and safety, product quality
and safety and employment and labor matters, except in each case as could not have or reasonably be expected to result in a Material Adverse
Effect.
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(n) [Reserved]
(o) Title
to Assets. The Company and the Subsidiaries have good and marketable title in fee simple to, or have valid and marketable rights to
lease or otherwise use, all real property and all personal property that is material to the business of the Company and the Subsidiaries,
in each case free and clear of all Liens, except for (i) Liens as do not materially affect the value of such property and do not materially
interfere with the use made and proposed to be made of such property by the Company and the Subsidiaries and (ii) Liens for the payment
of federal, state or other taxes, for which appropriate reserves have been made therefor in accordance with GAAP, and the payment of which
is neither delinquent nor subject to penalties. Any real property and facilities held under lease by the Company and the Subsidiaries
are held by them under valid, subsisting and enforceable leases with which the Company and the Subsidiaries are in compliance.
(p) Intellectual
Property. The Company and the Subsidiaries have valid, binding and enforceable licenses or other rights or clear title to use, all
patents, patent applications, trademarks, trademark applications, service marks, trade names, trade secrets, inventions, copyrights, licenses
and other intellectual property rights and similar rights necessary or required for use in connection with their respective businesses
as described in the Registration Statement and Prospectus and which the failure to do so could have a Material Adverse Effect (collectively,
the “Intellectual Property Rights”). None of, and neither the Company nor any Subsidiary has received a notice (written
or otherwise) that any of, the Intellectual Property Rights has expired, terminated or been abandoned, or is expected to expire or terminate
or be abandoned, within two (2) years from the date of this Agreement. Neither the Company nor any Subsidiary has received, since the
date of the latest audited financial statements included within the Registration Statement and Prospectus, a written notice of a claim
or otherwise has any knowledge that the Intellectual Property Rights violate or infringe upon the rights of any Person. To the knowledge
of the Company and its Subsidiaries, all such Intellectual Property Rights are valid and enforceable with all required fees and maintenance
fees for the Intellectual Property Rights having been paid. To the knowledge of the Company and its Subsidiaries, the Company, its Subsidiaries,
and their licensors have complied with the duty of candor and disclosure toward the U.S. Patent and Trademark Office or any similar foreign
patent office (collectively, the “Patent Offices”) for each of the patents and patent applications included in the
Intellectual Property Rights; and has not received notice by the Patent Offices of any adverse proceeding with respect to the Intellectual
Property Rights; and all owned Intellectual Property Rights have been assigned to the Company and its Subsidiaries with assignments of
all patents and patent applications included in the Intellectual Property Rights have been recorded with Patent Offices as required; and
there is no existing infringement by another Person of any of the Intellectual Property Rights. The Company and its Subsidiaries have
taken reasonable security measures to protect the secrecy, confidentiality and value of all of their intellectual properties, except where
failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
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(q) Insurance.
The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such
amounts as are prudent and customary in the businesses in which the Company and the Subsidiaries are engaged, including, but not limited
to, directors and officers insurance coverage. Neither the Company nor any Subsidiary has any reason to believe that it will not be able
to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may
be necessary to continue its business without a significant increase in cost.
(r) Transactions
With Affiliates and Employees. Except as set forth in the Registration Statement and Prospectus, none of the officers or directors
of the Company or any Subsidiary and, to the knowledge of the Company, none of the employees of the Company or any Subsidiary is presently
a party to any transaction with the Company or any Subsidiary (other than for services as employees, officers and directors), including
any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal
property to or from, providing for the borrowing of money from or lending of money to or otherwise requiring payments to or from, any
officer, director or such employee or, to the knowledge of the Company, any entity in which any officer, director, or any such employee
has a substantial interest or is an officer, director, trustee, stockholder, member or partner, in each case in excess of $120,000 other
than for (i) payment of salary or consulting fees for services rendered, (ii) reimbursement for expenses incurred on behalf of the Company
and (iii) other employee benefits, including stock option agreements under any stock option plan of the Company.
(s) Xxxxxxxx-Xxxxx;
Internal Accounting Controls. The Company and the Subsidiaries are in compliance with any and all applicable requirements of the Xxxxxxxx-Xxxxx
Act of 2002 that are effective as of the date hereof, and any and all applicable rules and regulations promulgated by the Commission thereunder
that are effective as of the date hereof and as of the Closing Date. The Company and the Subsidiaries maintain a system of internal accounting
controls sufficient to provide reasonable assurance that: (i) transactions are executed in accordance with management’s general
or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with
GAAP and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management’s general or specific
authorization, and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences. The Company and the Subsidiaries have established disclosure controls and procedures
(as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company and the Subsidiaries and designed such disclosure controls
and procedures to ensure that information required to be disclosed by the Company in the reports it files or submits under the Exchange
Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and forms. The
Company’s certifying officers have evaluated the effectiveness of the disclosure controls and procedures of the Company and the
Subsidiaries as of the end of the period covered by the most recently filed periodic report under the Exchange Act (such date, the “Evaluation
Date”). The Company presented in its most recently filed periodic report under the Exchange Act the conclusions of the certifying
officers about the effectiveness of the disclosure controls and procedures based on their evaluations as of the Evaluation Date. Since
the Evaluation Date, there have been no changes in the internal control over financial
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reporting (as such term
is defined in the Exchange Act) of the Company and its Subsidiaries that have materially affected, or is reasonably likely to materially
affect, the internal control over financial reporting of the Company and its Subsidiaries.
(t) Certain
Fees. Except as set forth in the Registration Statement and Prospectus, no brokerage or finder’s fees or commissions are or
will be payable by the Company, any Subsidiary or Affiliate of the Company to any broker, financial advisor or consultant, finder, placement
agent, investment banker, bank or other Person with respect to the transactions contemplated by the Transaction Documents. Except as set
forth in the Registration Statement and Prospectus, there are no other arrangements, agreements or understandings of the Company or, to
the Company’s knowledge, any of its stockholders that may affect the Underwriters’ compensation, as determined by FINRA. Other
than payments to the Underwriters for this Offering and except as set forth in the Registration Statement and Prospectus, the Company
has not made and has no agreements, arrangements or understandings to make any direct or indirect payments (in cash, securities or otherwise)
to: (i) any person, as a finder’s fee, consulting fee or otherwise, in consideration of such person raising capital for the
Company or introducing to the Company persons who raised or provided capital to the Company; (ii) any FINRA member; or (iii) any
person or entity that has any direct or indirect affiliation or association with any FINRA member, within the 180 day period preceding
the initial filing of the Registration Statement through the 60 day period after the commencement of sales of the Offering. 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 authorized
herein.
(u) Investment
Company. The Company is not, and is not an Affiliate of, and immediately after receipt of payment for the Securities will not be or
be an Affiliate of, an “investment company” within the meaning of the Investment Company Act of 1940, as amended. The Company
shall conduct its business in a manner so that it will not become an “investment company” subject to registration under the
Investment Company Act of 1940, as amended.
(v) Registration
Rights. No Person has any right to cause the Company or any Subsidiary to effect the registration under the Securities Act of any
securities of the Company or any Subsidiary.
(w) Listing
and Maintenance Requirements. The Common Stock is registered pursuant to Section 12(b) of the Exchange Act, and the Company has taken
no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration of the Common Stock under
the Exchange Act nor has the Company received any notification that the Commission is contemplating terminating such registration. The
Company has not, in the 12 months preceding the date hereof, received notice from any Trading Market on which the Common Stock is or has
been listed or quoted to the effect that the Company is not in compliance with the listing or maintenance requirements of such Trading
Market. The Company is, and has no reason to believe that it will not in the foreseeable future continue to be, in compliance with all
such listing and maintenance requirements. The Common Stock is currently eligible for electronic transfer through the Depository Trust
Company or another established clearing corporation and the Company is current in payment of the fees of the Depository Trust Company
(or such other established clearing corporation) in connection with such electronic transfer.
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(x) Application
of Takeover Protections. The Company and the Board of Directors have taken all necessary action, if any, in order to render inapplicable
any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or other similar
anti-takeover provision under the Company’s certificate of incorporation (or similar charter documents) or the laws of its state
of incorporation that is or could become applicable as a result of the Underwriters and the Company fulfilling their obligations or exercising
their rights under the Transaction Documents.
(y) Disclosure;
10b-5. The Registration Statement (and any further documents to be filed with the Commission) contains all exhibits and schedules
as required by the Securities Act. Each of the Registration Statement and any post-effective amendment thereto, if any, at the time it
became effective, complied in all material respects with the Securities Act and the Exchange Act and the applicable rules and regulations
under the Securities Act and did not and, as amended or supplemented, if applicable, will not, contain 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 not misleading. The Preliminary
Prospectus and the Prospectus, each as of its respective date, comply in all material respects with the Securities Act and the Exchange
Act and the applicable rules and regulations. The Prospectus, as amended or supplemented, did not and will not contain as of the date
thereof any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading. As of its date and the date hereof, the General Disclosure Package
did not and does not include any untrue statement of a material fact or omitted to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were made, not misleading. The SEC Reports, when they were
filed with the Commission, conformed in all material respects to the requirements of the Securities Act and the Exchange Act, as applicable,
and the applicable rules and regulations, and none of such documents, when they were filed with the Commission, contained any untrue statement
of a material fact or omitted to state a material fact necessary to make the statements therein (with respect to the SEC Reports incorporated
by reference in the Prospectus), in light of the circumstances under which they were made not misleading; and any further documents so
filed and incorporated by reference in the Prospectus, when such documents are filed with the Commission, will conform in all material
respects to the requirements of the Exchange Act and the applicable rules and regulations, as applicable, and will not contain any untrue
statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances
under which they were made not misleading. No post-effective amendment to the Registration Statement reflecting any facts or events arising
after the date thereof which represent, individually or in the aggregate, a fundamental change in the information set forth therein is
required to be filed with the Commission. There are no documents required to be filed with the Commission in connection with the transaction
contemplated hereby that (x) have not been filed as required pursuant to the Securities Act or (y) will not be filed within the requisite
time period. There are no contracts or other documents required to be described in the Preliminary Prospectus or Prospectus, or to be
filed as exhibits or schedules to the Registration Statement, which have not been described or filed as required. The press releases disseminated
by the Company during the twelve months preceding the date of this Agreement taken as a whole do not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary in order to make the
- 21 -
statements therein, in
light of the circumstances under which they were made and when made, not misleading. The statistical and market-related data included
in each of the General Disclosure Package and the Prospectus are based on or derived from sources that the Company reasonably and in good
faith believes are reliable and accurate or represent the Company’s good faith estimates that are made on the basis of data derived
from such sources. To the extent required, the Company has obtained all consents required for the inclusion of such statistical and market-related
data in each of the General Disclosure Package and the Prospectus. No forward-looking statement (within the meaning of Section 27A of
the Securities Act and Section 21E of the Exchange Act) contained in the General Disclosure Package or the Prospectus has been made or
reaffirmed without a reasonable basis or has been disclosed other than in good faith. No Integrated Offering. Neither the
Company, nor any of its Affiliates, nor any Person acting on its or their behalf has, directly or indirectly, made any offers or sales
of any security or solicited any offers to buy any security, under circumstances that would cause this offering of the Securities to be
integrated with prior offerings by the Company for purposes of any applicable shareholder approval provisions of any Trading Market on
which any of the securities of the Company are listed or designated.
(z) Solvency.
Based on the consolidated financial condition of the Company as of the Closing Date, after giving effect to the receipt by the Company
of the proceeds from the sale of the Securities hereunder, (i) the fair saleable value of the Company’s assets exceeds the amount
that will be required to be paid on or in respect of the Company’s existing debts and other liabilities (including known contingent
liabilities) as they mature, (ii) the Company’s assets do not constitute unreasonably small capital to carry on its business as
now conducted and as proposed to be conducted including its capital needs taking into account the particular capital requirements of the
business conducted by the Company, consolidated and projected capital requirements and capital availability thereof, and (iii) the current
cash flow of the Company, together with the proceeds the Company would receive, were it to liquidate all of its assets, after taking into
account all anticipated uses of the cash, would be sufficient to pay all amounts on or in respect of its liabilities when such amounts
are required to be paid. The Company does not intend to incur debts beyond its ability to pay such debts as they mature (taking into account
the timing and amounts of cash to be payable on or in respect of its debt). The Company has no knowledge of any facts or circumstances
which lead it to believe that it will file for reorganization or liquidation under the bankruptcy or reorganization laws of any jurisdiction
within one year from the Closing Date. The Registration Statement and Prospectus sets forth as of the date hereof all outstanding secured
and unsecured Indebtedness of the Company or any Subsidiary, or for which the Company or any Subsidiary has commitments. Neither the Company
nor any Subsidiary is in default with respect to any Indebtedness.
(aa) Tax
Status. Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result in a Material
Adverse Effect, the Company and its Subsidiaries each (i) has made or filed all United States federal, state and local income and all
foreign income and franchise tax returns, reports and declarations required by any jurisdiction to which it is subject, (ii) has paid
all taxes and other governmental assessments and charges that are material in amount, shown or determined to be due on such returns, reports
and declarations and (iii) has set aside on its books provision reasonably adequate for the payment of all material taxes for periods
subsequent to the periods to which such returns, reports or declarations apply. There are
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no unpaid taxes in any
material amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company or of any Subsidiary know
of no basis for any such claim. The provisions for taxes payable, if any, shown on the financial statements filed with or as part of the
Registration Statement are sufficient for all accrued and unpaid taxes, whether or not disputed, and for all periods to and including
the dates of such consolidated financial statements. The term “taxes” mean all federal, state, local, foreign, and other net
income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding,
payroll, employment, excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties or other taxes, fees,
assessments, or charges of any kind whatsoever, together with any interest and any penalties, additions to tax, or additional amounts
with respect thereto. The term “returns” means all returns, declarations, reports, statements, and other documents required
to be filed in respect to taxes.
(bb) Foreign
Corrupt Practices. Neither the Company nor any Subsidiary, nor to the knowledge of the Company or any Subsidiary, any agent or other
person acting on behalf of the Company or any Subsidiary, has (i) directly or indirectly, used any funds for unlawful contributions, gifts,
entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful payment to foreign
or domestic government officials or employees or to any foreign or domestic political parties or campaigns from corporate funds, (iii)
failed to disclose fully any contribution made by the Company or any Subsidiary (or made by any person acting on its behalf of which the
Company is aware) which is in violation of law, or (iv) violated in any material respect any provision of FCPA. The Company has taken
reasonable steps to ensure that its accounting controls and procedures are sufficient to cause the Company to comply in all material respects
with the FCPA.
(cc) Accountants.
To the knowledge and belief of the Company, the Company Auditor (i) is an independent registered public accounting firm as required by
the Exchange Act and (ii) shall express its opinion with respect to the financial statements to be included in the Company’s Annual
Report for the fiscal year ending December 31, 2020.
(dd) [Reserved].
(ee) Stock
Option Plans. Each stock option granted by the Company under the Company’s stock option plan was granted (i) in accordance with
the terms of the Company’s stock option plan and (ii) with an exercise price at least equal to the fair market value of the Common
Stock on the date such stock option would be considered granted under GAAP and applicable law. No stock option granted under the Company’s
stock option plan has been backdated. The Company has not knowingly granted, and there is no and has been no Company policy or practice
to knowingly grant, stock options prior to, or otherwise knowingly coordinate the grant of stock options with, the release or other public
announcement of material information regarding the Company or its Subsidiaries or their financial results or prospects.
(ff) Office
of Foreign Assets Control. Neither the Company nor any Subsidiary nor, to the Company's knowledge, any director, officer, agent, employee
or affiliate of the Company or any Subsidiary is currently subject to any U.S. sanctions administered by the Office of Foreign Assets
Control of the U.S. Treasury Department.
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(gg) U.S.
Real Property Holding Corporation. The Company is not and has never been a U.S. real property holding corporation within the meaning
of Section 897 of the Internal Revenue Code of 1986, as amended, and the Company shall so certify upon the Representative’s request.
(hh) Bank
Holding Company Act. Neither the Company nor any of its Subsidiaries or Affiliates is subject to the Bank Holding Company Act of 1956,
as amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve System (the “Federal
Reserve”). Neither the Company nor any of its Subsidiaries or Affiliates owns or controls, directly or indirectly, five percent
(5%) or more of the outstanding shares of any class of voting securities or twenty-five percent (25%) or more of the total equity of a
bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve. Neither the Company nor any of its Subsidiaries
or Affiliates exercises a controlling influence over the management or policies of a bank or any entity that is subject to the BHCA and
to regulation by the Federal Reserve.
(ii) Money
Laundering. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance with applicable
financial record-keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, applicable
money laundering statutes and applicable rules and regulations thereunder (collectively, the “Money Laundering Laws”),
and no Action or Proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or
any Subsidiary with respect to the Money Laundering Laws is pending or, to the knowledge of the Company or any Subsidiary, threatened.
(jj) D&O
Questionnaires. To the Company’s knowledge, all information contained in the questionnaires completed by each of the Company’s
directors and officers immediately prior to the Offering and in the Lock-Up Agreement provided to the Underwriters is true and correct
in all respects and the Company has not become aware of any information which would cause the information disclosed in such questionnaires
become inaccurate and incorrect.
(kk) FINRA
Affiliation. No officer, director or any beneficial owner of 5% or more of the Company’s unregistered securities has any direct
or indirect affiliation or association with any FINRA member (as determined in accordance with the rules and regulations of FINRA) that
is participating in the Offering. The Company will advise the Representative and SRF if it learns that any officer, director or owner
of 10% or more of the Company’s outstanding shares of Common Stock or Common Stock Equivalents is or becomes an affiliate or associated
person of a FINRA member firm.
(ll) Officers’
Certificate. Any certificate signed by any duly authorized officer of the Company and delivered to the Representative or SRF shall
be deemed a representation and warranty by the Company to the Underwriters as to the matters covered thereby.
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(mm) Board
of Directors. The Board of Directors is comprised of the persons set forth under the heading of the Prospectus captioned “Management.”
The qualifications of the persons serving as board members and the overall composition of the Board of Directors comply with the Xxxxxxxx-Xxxxx
Act of 2002 and the rules promulgated thereunder applicable to the Company and the rules of the Trading Market. At least one member of
the Board of Directors qualifies as a “financial expert” as such term is defined under the Xxxxxxxx-Xxxxx Act of 2002 and
the rules promulgated thereunder and the rules of the Trading Market. In addition, at least a majority of the persons serving on the Board
of Directors qualify as “independent” as defined under the rules of the Trading Market.
(nn) Environmental
Laws. The Company and its Subsidiaries (i) are in compliance with all federal, state, local and foreign
laws relating to pollution or protection of human health or the environment (including ambient air, surface water, groundwater, land surface
or subsurface strata), including laws relating to emissions, discharges, releases or threatened releases of chemicals, pollutants, contaminants,
or toxic or hazardous substances or wastes (collectively, “Hazardous Materials”) into the environment, or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials,
as well as all authorizations, codes, decrees, demands, or demand letters, injunctions, judgments, licenses, notices or notice letters,
orders, permits, plans or regulations, issued, entered, promulgated or approved thereunder (“Environmental Laws”);
(ii) have received all permits licenses or other approvals required of them under applicable Environmental Laws to conduct their respective
businesses; and (iii) are in compliance with all terms and conditions of any such permit, license or approval where in each clause (i),
(ii) and (iii), the failure to so comply could be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect.
ARTICLE IV.
OTHER AGREEMENTS OF THE PARTIES
4.1 Amendments
to Registration Statement. The Company has delivered, or will as promptly as practicable deliver, to the Underwriters complete conformed
copies of the Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereof, and conformed
copies of the Registration Statement (without exhibits), the Prospectus, as amended or supplemented, and the General Disclosure Package
in such quantities and at such places as an Underwriter reasonably requests. Neither the Company nor any of its directors and officers
has distributed and none of them will distribute, prior to the Closing Date, any offering material in connection with the offering and
sale of the Securities other than the Prospectus, the General Disclosure Package, and the Registration Statement. The Company shall not
file any such amendment or supplement to which the Representative shall reasonably object in writing.
4.2 Federal
Securities Laws.
(a) Compliance.
During the time when a Prospectus is required to be delivered under the Securities Act, the Company will use its best efforts to comply
with all requirements imposed upon it by the Securities Act and the rules and regulations thereunder and the Exchange Act and the rules
and regulations thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the
Securities in accordance with the provisions hereof and the Prospectus. If at any time
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when a Prospectus relating
to the Securities is required to be delivered under the Securities Act, any event shall have occurred as a result of which, in the opinion
of counsel for the Company or counsel for the Underwriters, the Prospectus, as then amended or supplemented, includes an untrue statement
of a material fact or omits 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, or if it is necessary at any time to amend the Prospectus to comply with
the Securities Act, the Company will notify the Underwriters promptly and prepare and file with the Commission, subject to Section 4.1
hereof, an appropriate amendment or supplement in accordance with Section 10 of the Securities Act.
(b) Filing
of Final Prospectus. The Company will file the Prospectus (in form and substances reasonably satisfactory to the Representative) with
the Commission pursuant to the requirements of Rule 424.
(c) Exchange
Act Registration. For a period of three years from the Execution Date, the Company will use its best efforts to maintain the registration
of the Common Stock and Warrants under the Exchange Act. The Company will not deregister the Common Stock and Warrants under the Exchange
Act without the prior written consent of the Representative.
(d) Free
Writing Prospectuses. The Company represents and agrees that it has not made and will not make any offer relating to the Securities
that would constitute an issuer free writing prospectus, as defined in Rule 433 of the rules and regulations under the Securities Act,
without the prior written consent of the Representative. Any such free writing prospectus consented to by the Representative is herein
referred to as a “Permitted Free Writing Prospectus.” The Company represents that it will treat each Permitted
Free Writing Prospectus as an “issuer free writing prospectus” as defined in rule and regulations under the Securities Act,
and has complied and will comply with the applicable requirements of Rule 433 of the Securities Act, including timely Commission filing
where required, legending and record keeping.
4.3 Delivery
to the Underwriters of Prospectuses. The Company will deliver to the Underwriters, without charge, from time to time during the period
when the Prospectus is required to be delivered under the Securities Act or the Exchange Act such number of copies of each Prospectus
as the Underwriters may reasonably request and, as soon as the Registration Statement or any amendment or supplement thereto becomes effective,
deliver to you two original executed Registration Statements, including exhibits, and all post-effective amendments thereto and copies
of all exhibits filed therewith or incorporated therein by reference and all original executed consents of certified experts.
4.4 Effectiveness
and Events Requiring Notice to the Underwriters. The Company will use its best efforts to cause the Registration Statement to remain
effective with a current prospectus until the later of nine (9) months from the Execution Date and the date on which the Warrants are
no longer outstanding, and will notify the Underwriters and holders of the Warrants immediately and confirm the notice in writing: (i) of
the effectiveness of the Registration Statement and any amendment thereto; (ii) of the issuance by the Commission of any stop order
or of the initiation, or the threatening, of any proceeding for that purpose; (iii) of the issuance by any state securities commission
of any proceedings for the suspension of the qualification of the Securities for offering or sale in any jurisdiction or of the initiation,
or the threatening, of any
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proceeding for that purpose; (iv) of
the mailing and delivery to the Commission for filing of any amendment or supplement to the Registration Statement or Prospectus; (v) of
the receipt of any comments or request for any additional information from the Commission; and (vi) of the happening of any event
during the period described in this Section 4.4 that, in the judgment of the Company, makes any statement of a material fact made in the
Registration Statement, the General Disclosure Package or the Prospectus untrue or that requires the making of any changes in the Registration
Statement, the General Disclosure Package or the Prospectus in order to make the statements therein, in light of the circumstances under
which they were made, not misleading. If the Commission or any state securities commission shall enter a stop order or suspend such qualification
at any time, the Company will make every reasonable effort to obtain promptly the lifting of such order.
4.5 Review
of Financial Statements. For a period of five (5) years from the Execution Date, the Company, at its expense, shall cause its regularly
engaged independent registered public accountants to review (but not audit) the Company’s financial statements for each of the first
three fiscal quarters prior to the announcement of quarterly financial information.
4.6 Reports
to the Underwriters Expenses of the Offering.
(a) Periodic
Reports, etc. For a period of three (3) years from the Execution Date, the Company will furnish or make available to the Underwriters
copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders
of any class of its securities and also promptly furnish or make available to the Underwriters: (i) a copy of each periodic report the
Company shall be required to file with the Commission; (ii) a copy of every press release and every news item and article with respect
to the Company or its affairs which was released by the Company; (iii) a copy of each Form 8-K prepared and filed by the Company; (iv)
a copy of each registration statement filed by the Company under the Securities Act; (v) such additional documents and information with
respect to the Company and the affairs of any future Subsidiaries of the Company as the Representative may from time to time reasonably
request; provided that the Underwriters shall each sign, if requested by the Company, a Regulation FD compliant confidentiality agreement
which is reasonably acceptable to the Representative in connection with such Underwriter’s receipt of such information. Documents
filed with the Commission pursuant to its XXXXX system shall be deemed to have been delivered to the Underwriters pursuant to this Section.
(b) Transfer
Sheets. For a period of three (3) years from the Execution Date, the Company shall retain the Transfer Agent or a transfer and registrar
agent acceptable to the Representative and will furnish to the Underwriters at the Company’s sole cost and expense such transfer
sheets of the Company’s securities as an Underwriter may reasonably request, including the daily and monthly consolidated transfer
sheets of the Transfer Agent and the DTC.
(c) Trading
Reports. During such time as the Closing Shares, Option Shares and Warrant Shares are listed on the Trading Market, the Company shall
provide to the Underwriters, at the Company’s expense, such reports published by the Trading Market relating to price and trading
of such shares, as the Underwriters shall reasonably request.
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(d) General
Expenses Related to the Offering. The Company hereby agrees to pay on each of the Closing Date and each Option Closing Date, if any,
to the extent not paid at the Closing Date, all expenses incident to the performance of the obligations of the Company under this Agreement,
including, but not limited to: (a) all filing fees and communication expenses relating to the registration of the Securities to be sold
in the Offering (including the Option Securities) with the Commission; (b) all FINRA Public Offering Filing System fees associated with
the review of the Offering by FINRA; all fees and expenses relating to the listing of such Closing Shares, Option Shares and Warrant Shares
on the Trading Market and such other stock exchanges as the Company and the Representative together determine; (c) all fees, expenses
and disbursements relating to the registration or qualification of such Securities under the “blue sky” securities laws of
such states and other foreign jurisdictions as the Representative may reasonably designate; (d) the costs of all mailing and printing
of the underwriting documents (including, without limitation, the Underwriting Agreement, any Blue Sky Surveys and, if appropriate, any
Agreement Among Underwriters, Selected Dealers’ Agreement, Underwriters’ Questionnaire and Power of Attorney), Registration
Statements, Prospectuses and all amendments, supplements and exhibits thereto and as many preliminary and final Prospectuses as the Representative
may reasonably deem necessary; (e) the costs and expenses of the Company’s public relations firm; (f) the costs of preparing, printing
and delivering the Securities; (g) fees and expenses of the Transfer Agent for the Securities (including, without limitation, any fees
required for same-day processing of any instruction letter delivered by the Company); (h) stock transfer and/or stamp taxes, if any, payable
upon the transfer of securities from the Company to the Underwriters; (i) the fees and expenses of the Company’s accountants; (j)
the fees and expenses of the Company’s legal counsel and other agents and representatives; (k) the Underwriters’ costs of
mailing prospectuses to prospective investors; (l) for the fees and expenses of SRF; (m) all fees, expenses and disbursements relating
to background checks of the Company’s officers and directors in an amount not to exceed $5,000 per individual; (n)
the aggregate in the costs associated with bound volumes of the public offering materials as well as commemorative mementos and
lucite tombstones, each of which the Company or its designee will provide within a reasonable time after the Closing in such quantities
as the Underwriters may reasonably request; (o) the Underwriters’ use of i-Deal’s book-building, prospectus tracking and compliance
software (or other similar software) for the Offering; and (p) the Underwriters’ actual “road show” expenses for the
Offering. The Underwriters’ expenses under clauses (n) and (q) shall not exceed in the aggregate $_____ without the Company’s
prior written approval, which shall not be unreasonably withheld. The Underwriters may also deduct from the net proceeds of the Offering
payable to the Company on the Closing Date, or each Option Closing Date, if any, the expenses set forth herein to be paid by the Company
to the Underwriters.
4.7 Application
of Net Proceeds. The Company will apply the net proceeds from the Offering received by it in a manner consistent with the application
described under the caption “Use of Proceeds” in the Prospectus.
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4.8 Delivery
of Earnings Statements to Security Holders. The Company will make generally available to its security holders as soon as practicable,
but not later than the first day of the fifteenth full calendar month following the Execution Date, an earnings statement (which need
not be certified by independent public or independent certified public accountants unless required by the Securities Act or the rules
and regulations under the Securities Act, but which shall satisfy the provisions of Rule 158(a) under Section 11(a) of the Securities
Act) covering a period of at least twelve consecutive months beginning after the Execution Date.
4.9 Stabilization.
Neither the Company, nor, to its knowledge, any of its employees, directors or shareholders (without the consent of the Representative)
has taken or will take, directly or indirectly, any action designed to or that has constituted or that might reasonably be expected to
cause or result in, under 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 Securities.
4.10 Internal
Controls. The Company will 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.
4.11 Accountants.
The Company shall continue to retain a nationally recognized independent certified public accounting firm for a period of at least three
years after the Execution Date. The Underwriters acknowledge that the Company Auditor is acceptable to the Underwriters.
4.12 FINRA.
The Company shall advise the Underwriters (who shall make an appropriate filing with FINRA) if it is aware that any officer, director,
10% or greater shareholder of the Company or Person that received the Company’s unregistered securities in the 180 days prior to
the initial filing of the Registration Statement is or becomes an affiliate or associated person of an Underwriter.
4.13 No
Fiduciary Duties. The Company acknowledges and agrees that the Underwriters’ responsibility to the Company is solely contractual
and commercial in nature, based on arms-length negotiations and that neither the Underwriters nor their affiliates or any selected dealer
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. Notwithstanding anything in this Agreement to
the contrary, the Company acknowledges that the Underwriters may have financial interests in the success of the Offering that are not
limited to the difference between the price to the public and the purchase price paid to the Company by the Underwriters for the shares
and the Underwriters have no obligation to disclose, or account to the Company for, any of such additional financial interests. The Company
hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Underwriters with
respect to any breach or alleged breach of fiduciary duty.
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4.14 Warrant
Shares. If all or any portion of a Warrant is exercised at a time when there is an effective registration statement to cover the issuance
of the Warrant Shares or if the Warrant is exercised via cashless exercise, the Warrant Shares issued pursuant to any such exercise shall
be issued free of all restrictive legends. If at any time following the date hereof the Registration Statement (or any subsequent registration
statement registering the sale or resale of the Warrant Shares) is not effective or is not otherwise available for the sale of the Warrant
Shares, the Company shall immediately notify the holders of the Warrants in writing that such registration statement is not then effective
and thereafter shall promptly notify such holders when the registration statement is effective again and available for the sale of the
Warrant Shares (it being understood and agreed that the foregoing shall not limit the ability of the Company to issue, or any holder thereof
to sell, any of the Warrant Shares in compliance with applicable federal and state securities laws).
4.15 Board
Composition and Board Designations. The Company shall ensure that: (i) the qualifications of the persons serving as board members
and the overall composition of the Board of Directors comply with the Xxxxxxxx-Xxxxx Act of 2002 and the rules promulgated thereunder
and with the listing requirements of the Trading Market and (ii) if applicable, at least one member of the Board of Directors qualifies
as a “financial expert” as such term is defined under the Xxxxxxxx-Xxxxx Act of 2002 and the rules promulgated thereunder.
4.16 Securities
Laws Disclosure; Publicity. At the request of the Representative, by 9:00 a.m. (New York City time) on the date hereof, the Company
shall issue a press release disclosing the material terms of the Offering. The Company and the Representative shall consult with each
other in issuing any other press releases with respect to the Offering, and neither the Company nor any Underwriter shall issue any such
press release nor otherwise make any such public statement without the prior consent of the Company, with respect to any press release
of such Underwriter, or without the prior consent of such Underwriter, with respect to any press release of the Company, which consent
shall not unreasonably be withheld or delayed, except if such disclosure is required by law, in which case the disclosing party shall
promptly provide the other party with prior notice of such public statement or communication. The Company will not issue press releases
or engage in any other publicity, without the Representative’s prior written consent, for a period ending at 5:00 p.m. (New York
City time) on the first business day following the 45th day following the Closing Date, other than normal and customary releases issued
in the ordinary course of the Company’s business.
4.17 Shareholder
Rights Plan. No claim will be made or enforced by the Company or, with the consent of the Company, any other Person, that any Underwriter
of the Securities is an “Acquiring Person” under any control share acquisition, business combination, poison pill (including
any distribution under a rights agreement) or similar anti-takeover plan or arrangement in effect or hereafter adopted by the Company,
or that any Underwriter of Securities could be deemed to trigger the provisions of any such plan or arrangement, by virtue of receiving
Securities.
4.18 Reservation
of Common Stock. As of the date hereof, the Company has reserved and the Company shall continue to reserve and keep available at all
times, free of preemptive rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to issue Option
Shares pursuant to the Over-Allotment Option, Warrant Shares pursuant to any exercise of the Warrants and shares of Common Stock issuable
upon exercise of the Representative’s Warrant pursuant to any exercise of the same.
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4.19 Listing
of Common Stock and Warrants. The Common Stock and Warrants have been approved for trading on the Trading Market. The Company agrees
to use its best efforts to effect and maintain the trading of the Common Stock and Warrants on the Trading Market for at least three (3)
years after the Closing Date.
4.20 Right
of First Refusal. The Company agrees that if the Securities are sold in accordance with the terms of this Agreement, the Representative
shall have an irrevocable preferential right for a period of twelve (12) months from the commencement of sales of the Offering to act
as lead manager and bookrunner, or sole placement agent, for any and all future public and private equity, equity-linked and debt (excluding
commercial bank debt) offerings.
4.21 Subsequent
Equity Sales.
(a) From
the date hereof until _________________, neither the Company nor any Subsidiary shall issue, enter into any agreement to issue or announce
the issuance or proposed issuance of any shares of Common Stock or Common Stock Equivalents or file any registration statement or supplement
or amendment thereto (other than in connection with this offering).
(b) From
the date hereof until _______, the Company shall be prohibited from effecting or entering into an agreement to effect any issuance by
the Company or any of its Subsidiaries of Common Stock or Common Stock Equivalents (or a combination of units thereof) involving a Variable
Rate Transaction. “Variable Rate Transaction” means a transaction in which the Company (i) issues or sells any debt
or equity securities that are convertible into, exchangeable or exercisable for, or include the right to receive, additional shares of
Common Stock either (A) at a conversion price, exercise price or exchange rate or other price that is based upon, and/or varies with,
the trading prices of or quotations for the shares of Common Stock at any time after the initial issuance of such debt or equity securities
or (B) with a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance of
such debt or equity security or upon the occurrence of specified or contingent events directly or indirectly related to the business of
the Company or the market for the Common Stock or (ii) enters into, or effects a transaction under, any agreement, including, but not
limited to, an equity line of credit, whereby the Company may issue securities at a future determined price. Any Underwriter shall be
entitled to obtain injunctive relief against the Company to preclude any such issuance, which remedy shall be in addition to any right
to collect damages.
(c) Notwithstanding
the foregoing, this Section 4.21 shall not apply in respect of an Exempt Issuance, except that no Variable Rate Transaction shall be an
Exempt Issuance.
4.22 Capital
Changes. Until ___________, the Company shall not undertake a reverse or forward stock split or reclassification of the Common Stock
without the prior written consent of the Representative.
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4.23 Research
Independence. 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 and/or publish research reports
with respect to the Company and/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.
ARTICLE V.
DEFAULT BY UNDERWRITERS
If
on the Closing Date or any Option Closing Date, if any, any Underwriter shall fail to purchase and pay for the portion of the Closing
Securities or Option Securities, as the case may be, which such Underwriter has agreed to purchase and pay for on such date (otherwise
than by reason of any default on the part of the Company), the Representative, or if the Representative is the defaulting Underwriter,
the non-defaulting Underwriters, shall use their reasonable efforts to procure within 36 hours thereafter one or more of the other Underwriters,
or any others, to purchase from the Company such amounts as may be agreed upon and upon the terms set forth herein, the Closing Securities
or Option Securities , as the case may be, which the defaulting Underwriter or Underwriters failed to purchase. If during such 36 hours
the Representative shall not have procured such other Underwriters, or any others, to purchase the Closing Securities or Option Securities,
as the case may be, agreed to be purchased by the defaulting Underwriter or Underwriters, then (a) if the aggregate number of Closing
Securities or Option Securities, as the case may be, with respect to which such default shall occur does not exceed 10% of the Closing
Securities or Option Securities, as the case may be, covered hereby, the other Underwriters shall be obligated, severally, in proportion
to the respective numbers of Closing Securities or Option Securities, as the case may be, which they are obligated to purchase hereunder,
to purchase the Closing Securities or Option Securities, as the case may be, which such defaulting Underwriter or Underwriters failed
to purchase, or (b) if the aggregate number of Closing Securities or Option Securities, as the case may be, with respect to which such
default shall occur exceeds 10% of the Closing Securities or Option Securities, as the case may be, covered hereby, the Company or the
Representative will have the right to terminate this Agreement without liability on the part of the non-defaulting Underwriters or of
the Company except to the extent provided in Article VI hereof. In the event of a default by any Underwriter or Underwriters, as set forth
in this Article V, the applicable Closing Date may be postponed for such period, not exceeding seven days, as the Representative, or if
the Representative is the defaulting Underwriter, the non-defaulting Underwriters, may determine in order that the required changes in
the Prospectus or in any other documents or arrangements may be effected. The term “Underwriter” includes any Person substituted
for a defaulting Underwriter. Any action taken under this Section shall not relieve any defaulting Underwriter from liability in respect
of any default of such Underwriter under this Agreement.
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ARTICLE VI.
INDEMNIFICATION
6.1 Indemnification
of the Underwriters. Subject to the conditions set forth below, the Company agrees to indemnify and hold harmless the Underwriters,
and each dealer selected by each Underwriter that participates in the offer and sale of the Securities (each a “Selected Dealer”)
and each of their respective directors, officers and employees and each Person, if any, who controls such Underwriter or any Selected
Dealer (“Controlling Person”) within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, against any and all loss, liability, claim, damage and expense whatsoever (including but not limited to any and all legal or other
expenses reasonably incurred in investigating, preparing or defending against any litigation, commenced or threatened, or any claim whatsoever,
whether arising out of any action between such Underwriter and the Company or between such Underwriter and any third party or otherwise)
to which they or any of them may become subject under the Securities Act, the Exchange Act or any other statute or at common law or otherwise
or under the laws of foreign countries, arising out of or based upon any untrue statement or alleged untrue statement of a material fact
contained in (i) any Preliminary Prospectus, if any, the Registration Statement or the Prospectus (as from time to time each may be amended
and supplemented); (ii) any materials or information provided to investors by, or with the approval of, the Company in connection with
the marketing of the offering of the Securities, including any “road show” or investor presentations made to investors by
the Company (whether in person or electronically); or (iii) any application or other document or written communication (in this Article
VI, collectively called “application”) executed by the Company or based upon written information furnished by the Company
in any jurisdiction in order to qualify the Securities under the securities laws thereof or filed with the Commission, any state securities
commission or agency, Trading Market or any securities exchange; or the omission or alleged omission therefrom of a 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,
unless such statement or omission was made in reliance upon and in conformity with written information furnished to the Company with respect
to the applicable Underwriter by or on behalf of such Underwriter expressly for use in any Preliminary Prospectus, if any, the Registration
Statement or Prospectus, or any amendment or supplement thereto, or in any application, as the case may be. With respect to any untrue
statement or omission or alleged untrue statement or omission made in the Preliminary Prospectus, if any, the indemnity agreement contained
in this Section 6.1 shall not inure to the benefit of an Underwriter to the extent that any loss, liability, claim, damage or expense
of such Underwriter results from the fact that a copy of the Prospectus was not given or sent to the Person asserting any such loss, liability,
claim or damage at or prior to the written confirmation of sale of the Securities to such Person as required by the Securities Act and
the rules and regulations thereunder, and if the untrue statement or omission has been corrected in the Prospectus, unless such failure
to deliver the Prospectus was a result of non-compliance by the Company with its obligations under this Agreement. The Company agrees
promptly to notify each Underwriter of the commencement of any litigation or proceedings against the Company or any of its officers, directors
or Controlling Persons in connection with the issue and sale of the Public Securities or in connection with the Registration Statement
or Prospectus.
- 33 -
6.2 Procedure.
If any action is brought against an Underwriter, a Selected Dealer or a Controlling Person in respect of which indemnity may be sought
against the Company pursuant to Section 6.1, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, 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 and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may be) and
payment of actual expenses. Such Underwriter, such Selected Dealer 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, such Selected Dealer
or Controlling Person unless (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by
the Company in connection with the defense of such action, or (ii) the Company shall not have employed counsel to have charge of the defense
of such action, or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it
or them which 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 the reasonable fees and expenses
of not more than one additional firm of attorneys selected by such Underwriter (in addition to local counsel), Selected Dealer and/or
Controlling Person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected
Dealer or Controlling Person shall assume the defense of such action as provided above, the Company shall have the right to approve the
terms of any settlement of such action which approval shall not be unreasonably withheld.
6.3 Indemnification
of the Company. Each Underwriter severally and not jointly agrees to indemnify and hold harmless the Company, its directors, officers
and employees and agents who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act against any and all loss, liability, claim, damage and expense described in the foregoing indemnity from the Company to such Underwriter,
as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions made in any Preliminary
Prospectus, if any, the Registration Statement or Prospectus or any amendment or supplement thereto or in any application, in reliance
upon, and in strict conformity with, written information furnished to the Company with respect to such Underwriter by or on behalf of
such Underwriter expressly for use in such Preliminary Prospectus, if any, the Registration Statement or Prospectus or any amendment or
supplement thereto or in any such application. In case any action shall be brought against the Company or any other Person so indemnified
based on any Preliminary Prospectus, if any, the Registration Statement or Prospectus or any amendment or supplement thereto or any application,
and in respect of which indemnity may be sought against such Underwriter, such Underwriter shall have the rights and duties given to the
Company, and the Company and each other Person so indemnified shall have the rights and duties given to such Underwriter by the provisions
of this Article VI. Notwithstanding the provisions of this Section 6.3, no Underwriter shall be required to indemnify the Company for
any amount in excess of the underwriting discounts and commissions applicable to the Securities purchased by such Underwriter. The Underwriters'
obligations in this Section 6.3 to indemnify the Company are several in proportion to their respective underwriting obligations and not
joint.
- 34 -
6.4 Contribution.
(a) Contribution
Rights. In order to provide for just and equitable contribution under the Securities Act in any case in which (i) any Person entitled
to indemnification under this Article VI makes a claim for indemnification pursuant hereto but it is judicially determined (by the entry
of a final judgment or decree by a court of competent jurisdiction and the expiration of time to appeal or the denial of the last right
of appeal) that such indemnification may not be enforced in such case notwithstanding the fact that this Article VI provides for indemnification
in such case, or (ii) contribution under the Securities Act, the Exchange Act or otherwise may be required on the part of any such Person
in circumstances for which indemnification is provided under this Article VI, then, and in each such case, the Company and each Underwriter,
severally and not jointly, shall contribute to the aggregate losses, liabilities, claims, damages and expenses of the nature contemplated
by said indemnity agreement incurred by the Company and such Underwriter, as incurred, in such proportions that such Underwriter is responsible
for that portion represented by the percentage that the underwriting discount appearing on the cover page of the Prospectus bears to the
initial offering price appearing thereon and the Company is responsible for the balance; provided, that, no Person guilty of a 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. For purposes of this Section, each director, officer and employee of such Underwriter
or the Company, as applicable, and each Person, if any, who controls such Underwriter or the Company, as applicable, within the meaning
of Section 15 of the Securities Act shall have the same rights to contribution as such Underwriter or the Company, as applicable. Notwithstanding
the provisions of this Section 6.4, no Underwriter shall be required to contribute any amount in excess of the underwriting discounts
and commissions applicable to the Securities purchased by such Underwriter. The Underwriters' obligations in this Section 6.4 to contribute
are several in proportion to their respective underwriting obligations and not joint.
(b) Contribution
Procedure. Within fifteen days after receipt by any party to this Agreement (or its representative) of notice of the commencement
of any action, suit or proceeding, such party will, if a claim for contribution in respect thereof is to be made against another party
(“contributing party”), notify the contributing party of the commencement thereof, but the failure to so notify the
contributing party will not relieve it from any liability which it may have to any other party other than for contribution hereunder.
In case any such action, suit or proceeding is brought against any party, and such party notifies a contributing party or its representative
of the commencement thereof within the aforesaid fifteen days, the contributing party will be entitled to participate therein with the
notifying party and any other contributing party similarly notified. Any such contributing party shall not be liable to any party seeking
contribution on account of any settlement of any claim, action or proceeding affected by such party seeking contribution without the written
consent of such contributing party. The contribution provisions contained in this Section 6.4 are intended to supersede, to the extent
permitted by law, any right to contribution under the Securities Act, the Exchange Act or otherwise available.
- 35 -
ARTICLE VII.
MISCELLANEOUS
7.1 Termination.
(a) Termination
Right. The Representative shall have the right to terminate this Agreement at any time prior to any Closing Date, (i) if any
domestic or international event or act or occurrence has materially disrupted, or in its opinion will in the immediate future materially
disrupt, general securities markets in the United States; or (ii) if trading on any Trading Market shall have been suspended or materially
limited, or minimum or maximum prices for trading shall have been fixed, or maximum ranges for prices for securities shall have been required
by FINRA or by order of the Commission or any other government authority having jurisdiction, or (iii) if the United States shall
have become involved in a new war or an increase in major hostilities, or (iv) if a banking moratorium has been declared by a New
York State or federal authority, or (v) if a moratorium on foreign exchange trading has been declared which materially adversely
impacts the United States securities markets, or (vi) if the Company shall have sustained a material loss by fire, flood, accident,
hurricane, earthquake, theft, sabotage or other calamity or malicious act which, whether or not such loss shall have been insured, will,
in the Representative’s opinion, make it inadvisable to proceed with the delivery of the Securities, or (vii) if the Company
is in material breach of any of its representations, warranties or covenants hereunder, or (viii) if the Representative shall have
become aware after the date hereof of such a material adverse change in the conditions or prospects of the Company, or such adverse material
change in general market conditions as in the Representative’s judgment would make it impracticable to proceed with the offering,
sale and/or delivery of the Securities or to enforce contracts made by the Underwriters for the sale of the Securities.
(b) Expenses.
In the event this Agreement shall be terminated pursuant to Section 7.1(a), within the time specified herein or any extensions thereof
pursuant to the terms herein, the Company shall be obligated to pay to the Representative its actual and accountable out of pocket expenses
related to the transactions contemplated herein then due and payable, including the fees and disbursements of SRF up to $100,000 in the
event of the Closing, and shall not exceed $40,000 in the event that there is not a Closing (provided,
however, that such expense cap in no way limits or impairs the indemnification and contribution provisions of this Agreement).
(c) Indemnification.
Notwithstanding any contrary provision contained in this Agreement, any election hereunder or any termination of this Agreement, and whether
or not this Agreement is otherwise carried out, the provisions of Article VI shall not be in any way effected by such election or termination
or failure to carry out the terms of this Agreement or any part hereof.
7.2 Entire
Agreement. The Transaction Documents, together with the exhibits and schedules thereto, any Preliminary Prospectus and the Prospectus,
contain the entire understanding of the parties with respect to the subject matter hereof and thereof and supersede all prior agreements
and understandings, oral or written, with respect to such matters, which the parties acknowledge have been merged into such documents,
exhibits and schedules. Notwithstanding anything herein to the contrary, the Engagement Agreement, dated October 13,
- 36 -
2021, as amended on April 4, 2022
(“Engagement Agreement”), by and between the Company and the Representative, shall continue to be effective and the
terms therein shall continue to survive and be enforceable by the Representative in accordance with its terms, provided that, in the event
of a conflict between the terms of the Engagement Agreement and this Agreement, the terms of this Agreement shall prevail.
7.3 Notices.
Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall
be deemed given and effective on the earliest of: (a) the time of transmission, if such notice or communication is delivered via facsimile
at the facsimile number or e-mail attachment at the email address set forth on the signature pages attached hereto at or prior to 5:30
p.m. (New York City time) on a Trading Day, (b) the next Trading Day after the time of transmission, if such notice or communication is
delivered via facsimile at the facsimile number or e-mail attachment at the e-mail address as set forth on the signature pages attached
hereto on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (c) the second (2nd)
Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service or (d) upon actual receipt
by the party to whom such notice is required to be given. The address for such notices and communications shall be as set forth on the
signature pages attached hereto.
7.4 Amendments;
Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument signed, in
the case of an amendment, by the Company and the Representative. No waiver of any default with respect to any provision, condition or
requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver
of any other provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder
in any manner impair the exercise of any such right.
7.5 Headings.
The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any
of the provisions hereof.
7.6 Successors
and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns.
7.7 Governing
Law. All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents shall be governed
by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts
of law thereof. Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of the transactions
contemplated by this Agreement and any other Transaction Documents (whether brought against a party hereto or its respective affiliates,
directors, officers, shareholders, partners, members, employees or agents) shall be commenced exclusively in the state and federal courts
sitting in the City of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting
in the City of New York, Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein (including with respect to the enforcement of any of the Transaction Documents), and hereby irrevocably
waives, and agrees not to assert in any action or proceeding, any claim that it is not personally subject to the jurisdiction of any such
court, that such action or proceeding is improper or is an inconvenient venue for such proceeding. Each party hereby irrevocably waives
personal service of process and consents to process being served in any such action or
- 37 -
proceeding by mailing a copy thereof
via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices
to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law. If either party
shall commence an action or proceeding to enforce any provisions of the Transaction Documents, then, in addition to the obligations of
the Company under Article VI, the prevailing party in such action or proceeding shall be reimbursed by the other party for its reasonable
attorneys’ fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action or proceeding.
7.8 Survival.
The representations and warranties contained herein shall survive the Closing and the Option Closing, if any, and the delivery of the
Securities.
7.9 Execution.
This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement
and shall become effective when counterparts have been signed by each party and delivered to each other party, it being understood that
the parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or by e-mail delivery
of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party executing (or on whose
behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original
thereof.
7.10 Severability.
If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force
and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially reasonable efforts
to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable.
7.11 Remedies.
In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, the Underwriters
and the Company will be entitled to specific performance under the Transaction Documents. The parties agree that monetary damages may
not be adequate compensation for any loss incurred by reason of any breach of obligations contained in the Transaction Documents and hereby
agree to waive and not to assert in any action for specific performance of any such obligation the defense that a remedy at law would
be adequate.
7.12 Saturdays,
Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of
any right required or granted herein shall not be a Business Day, then such action may be taken or such right may be exercised on the
next succeeding Business Day.
- 38 -
7.13 Construction.
The parties agree that each of them and/or their respective counsel have reviewed and had an opportunity to revise the Transaction Documents
and, therefore, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall
not be employed in the interpretation of the Transaction Documents or any amendments thereto. In addition, each and every reference to
share prices and shares of Common Stock in any Transaction Document shall be subject to adjustment for reverse and forward stock splits,
stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the date of this Agreement.
7.14 WAIVER
OF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, THE PARTIES EACH KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT
PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY AND EXPRESSLY WAIVE FOREVER ANY RIGHT TO TRIAL BY JURY.
(Signature Pages Follow)
- 39 -
If the foregoing correctly sets
forth the understanding between the Underwriters and the Company, please so indicate in the space provided below for that purpose, whereupon
this letter shall constitute a binding agreement among the Company and the several Underwriters in accordance with its terms.
Very truly yours,
AUTO PARTS 4LESS GROUP, INC.
By: _______________________________________
Name:
Title:
Address for Notice:
Copy to:
Accepted on the date first above written.
MAXIM GROUP LLC
As the Representative of the several
Underwriters listed on Schedule I
MAXIM GROUP LLC
By: _______________________________________
Name:
Title:
Address for Notice:
Maxim Group LLC
000 Xxxxxxxxx Xxxxxx, 0xx
Xxxxx
Xxx Xxxx, XX 00000
Copy to:
Xxxxxxxxx Xxxx Xxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx
Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxx, Esq.
- 40 -
SCHEDULE I
Schedule of
Underwriters
Underwriters |
Closing Shares |
Closing Warrants |
Closing Purchase Price |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
|
- 41 -
EXHIBIT A
FORM OF LOCK-UP AGREEMENT
- 42 -
EXHIBIT B
FORM OF WARRANT
- 43 -
EXHIBIT C
FORM OF WARRANT AGENCY AGREEMENT
- 44-