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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
December 14, 2023
EOS ENERGY ENTERPRISES, INC.
(Exact name of registrant as specified in its charter)
Delaware |
|
001-39291 |
|
84-4290188 |
(State or other jurisdiction
of
incorporation) |
|
(Commission File
Number)
|
|
(IRS Employer
Identification
No.) |
3920 Park Avenue
Edison, New Jersey 08820
(Address of principal executive offices, including
zip code)
Registrant’s
telephone number, including area code: (732) 225-8400
N/A
(Former name or former address, if changed since
last report)
Check the appropriate box
below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following
provisions:
| ☐ | Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ☐ | Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ☐ | Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b)
of the Act:
Title of each class |
|
Trading Symbol(s) |
|
Name of each exchange on which registered |
Common stock, par value $0.0001 per share |
|
EOSE |
|
The Nasdaq Stock Market LLC |
Warrants, each exercisable for one share of common stock |
|
EOSEW |
|
The Nasdaq Stock Market LLC |
Indicate by check mark whether
the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule
12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging
growth company ☐
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01 Entry into a Material Definitive Agreement.
On December 14, 2023, Eos Energy Enterprises,
Inc. (the “Company”) entered into an underwriting agreement (the “Underwriting Agreement”) with
Cowen and Company, LLC and Stifel, Nicolaus & Company, Incorporated as representatives of the several underwriters named therein (collectively,
the “Underwriters”), relating to an underwritten public offering (the “Offering”) of 34,482,759
common shares (the “Shares”) of the Company’s common stock , par value $0.0001 per share (the “Common
Stock”) and 34,482,759 warrants (the “Warrants”) to purchase up to an aggregate of 34,482,759 shares of Common
Stock (the “Warrant Shares”), at a combined public offering price of $1.45 per Share and accompanying Warrant. The
Warrants have an exercise price of $1.60 per share, are immediately exercisable and expire five years from the date of issuance. After
underwriting discounts and commissions, the Company expects to receive net proceeds from the Offering of approximately $47.5 million.
The Shares, Warrants, and Warrant Shares issuable
upon the exercise of the Warrants will be issued pursuant to the Company’s shelf registration statement on Form S-3 (Registration
Statement No. 333-275863) previously filed with the Securities and Exchange Commission (the “Commission”) and declared
effective by the Commission on December 10, 2023. A preliminary prospectus supplement and the accompanying prospectus relating to the
Offering have been filed with the Commission. The Offering is expected to close on or about December 19, 2023, subject to satisfaction
of customary closing conditions.
The Underwriting Agreement contains customary
representations and warranties, agreements and obligations, conditions to closing and termination provisions. The Underwriting Agreement
provides for indemnification by the Underwriters of the Company, its directors and certain of its executive officers, and by the Company
of the Underwriters, for certain liabilities, including liabilities arising under the Securities Act of 1933, as amended, and affords
certain rights of contribution with respect thereto. The foregoing descriptions of the Underwriting Agreement and Warrants are qualified
in their entirety by reference to the Underwriting Agreement and form of Warrant, which are attached hereto as Exhibits 1.1 and 4.1, respectively,
to this Current Report on Form 8-K (the “Report”).
Item 7.01 Regulation FD.
On December 14, 2023,
the Company issued a press release announcing the commencement of the Offering. A copy of the press release is attached as Exhibit 99.1
to this Report and is hereby incorporated by reference herein.
On December 14, 2023,
the Company issued a press release announcing the pricing of the Offering. A copy of the press release is attached as Exhibit 99.2 to
this Report and is hereby incorporated by reference herein.
The information furnished
under this Item 7.01 and in the accompanying Exhibits 99.1 and 99.2 shall not be deemed “filed” for purposes of Section 18
of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or incorporated by reference in any filing under
the Securities Act of 1933, as amended, or the Exchange Act regardless of any general incorporation language in such filing, unless expressly
incorporated by specific reference in such filing.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
| * | Certain schedules and exhibits to this agreement have been omitted
pursuant to Item 601(a)(5) of Regulation S-K. A copy of any omitted exhibit or schedule will be furnished supplementally to the SEC or
its staff upon request. |
SIGNATURES
Pursuant to the requirements
of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
|
EOS ENERGY ENTERPRISES, INC. |
|
|
|
Dated: December 15, 2023 |
By: |
/s/ Nathan Kroeker |
|
|
Name: |
Nathan Kroeker |
|
|
Title: |
Chief Financial Officer |
2
Exhibit 1.1
EOS ENERGY ENTERPRISES, INC.
34,482,759 Shares of Common Stock (par value
$0.0001 per share)
Warrants to Purchase 34,482,759 Shares of Common
Stock
UNDERWRITING AGREEMENT
December 14, 2023
Cowen and
Company, LLC
Stifel,
Nicolaus & Company, Incorporated
As Representatives of the several Underwriters
c/o Cowen and Company, LLC
599 Lexington Avenue
New York, New York 10022
c/o Stifel, Nicolaus & Company, Incorporated
787 Seventh Avenue, 11th Floor
New York, New York 10019
Dear Sirs:
1. Introductory.
Eos Energy Enterprises, Inc., a Delaware corporation (the “Company”), proposes to sell, pursuant to the terms
of this Agreement, to the several underwriters named in Schedule A hereto (the “Underwriters,” or, each,
an “Underwriter”), (i) an aggregate of 34,482,759 shares its of common stock (the “Shares”),
par value $0.0001 per share (the “Common Stock”) and (ii) warrants to purchase an aggregate of 34,482,759 shares
of Common Stock (the “Warrants”). Each Share is being sold together with one Warrant; and each full Warrant
is exercisable for one Share of Common Stock at an exercise price of $1.60 per whole share. The Shares to be sold by the Company and the
Warrants to be sold by the Company are collectively called the “Securities.” As used herein, “Warrant
Shares” means the Shares of Common Stock issuable upon the exercise of the Warrants. Cowen and Company, LLC (“Cowen”)
and Stifel, Nicolaus & Company, Incorporated (“Stifel”) are acting as representatives of the several Underwriters
and in such capacity are hereinafter referred to as the “Representatives.”
2. Representations
and Warranties
(i) The
Company represents and warrants to the several Underwriters, as of the date hereof and as of the Closing Date (as defined below), and
agrees with the several Underwriters, that:
(a) Registration
Statement. A registration statement of the Company on Form S-3 (File No. 333-275863) (including all amendments thereto, the
“Initial Registration Statement”) in respect of the Securities has been filed with the Securities and
Exchange Commission (the “Commission”) pursuant to Rule 415 under the Securities Act of 1933, as amended
(the “Securities Act”). The Company meets the requirements for use of Form S-3 under the Securities Act,
and the rules and regulations of the Commission thereunder (the “Rules and Regulations”). The Initial
Registration Statement and any post-effective amendment thereto, each in the form heretofore delivered to you, and, excluding
exhibits thereto, to you for each of the other Underwriters, have been declared effective by the Commission in such form and meet
the requirements of the Securities Act, and the Rules and Regulations. The proposed offering of the Securities may be made pursuant
to General Instruction I.B.1 of Form S-3. Other than (i) the Initial Registration Statement, (ii) a registration statement, if any,
increasing the size of the offering filed pursuant to Rule 462(b) under the Securities Act and the Rules and Regulations (a
“Rule 462(b) Registration Statement”), (iii) any Preliminary Prospectus (as defined below), (iv) the
Prospectus (as defined below) contemplated by this Agreement to be filed pursuant to Rule 424(b) of the Rules and Regulations in
accordance with Section 4(i)(a) hereof and (v) any Issuer Free Writing Prospectus (as defined below), no other document with respect
to the offer or sale of the Securities has heretofore been filed with the Commission. No stop order suspending the effectiveness of
the Initial Registration Statement, any post-effective amendment thereto or the Rule 462(b) Registration Statement, if any, has been
issued and no proceeding for that purpose or pursuant to Section 8A of the Securities Act has been initiated or, to the
Company’s Knowledge, threatened by the Commission (any preliminary prospectus included in the Initial Registration Statement
or filed with the Commission pursuant to Rule 424 of the Rules and Regulations is hereinafter called a “Preliminary
Prospectus”). The Initial Registration Statement including all exhibits thereto and including the information
contained in the Prospectus filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations and deemed by virtue of
Rule 430B under the Securities Act to be part of the Initial Registration Statement at the time it became effective is hereinafter
collectively called the “Registration Statement.” If the Company has filed a Rule 462(b) Registration
Statement, then any reference herein to the term “Registration Statement” shall be deemed to include such Rule 462
Registration Statement. The base prospectus included in the Initial Registration Statement at the time of effectiveness thereof, as
supplemented by the final prospectus supplement relating to the offer and sale of the Securities, in the form filed pursuant to and
within the time limits described in Rule 424(b) under the Rules and Regulations, is hereinafter called the
“Prospectus.”
Any reference herein
to the Registration Statement, Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated
by reference therein. Any reference to any amendment or supplement to any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include any documents filed after the date of such Preliminary Prospectus or the Prospectus under the Securities Exchange
Act of 1934, as amended (the “Exchange Act”), and incorporated by reference in such Preliminary Prospectus or
Prospectus, as the case may be. Any reference to (i) the Registration Statement shall be deemed to refer to and include the annual report
of the last completed fiscal year of the Company on Form 10-K filed under Section 13(a) or 15(d) of the Exchange Act prior to the date
hereof and (ii) the effective date of such Registration Statement shall be deemed to refer to and include the date such Registration Statement
became effective and, if later, the date such Form 10-K was so filed. Any reference to any amendment to the Registration Statement shall
be deemed to refer to and include any annual report of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after
the date of this Agreement that is incorporated by reference in the Registration Statement.
(b) General
Disclosure Package. As of the Applicable Time (as defined below) and as of the Closing Date, as the case may be, neither (i) the General
Use Free Writing Prospectus(es) (as defined below) issued at or prior to the Applicable Time, the Pricing Prospectus (as defined below)
and the information included on Schedule C hereto, all considered together (collectively, the “General Disclosure Package”),
(ii) any individual Limited Use Free Writing Prospectus (as defined below), nor (iii) the bona fide electronic roadshow (as defined in
Rule 433(h)(5) of the Rules and Regulations), when considered together with the General Disclosure Package, included or will include any
untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no representations
or warranties as to information contained in or omitted from the Pricing Prospectus or any Issuer Free Writing Prospectus (as defined
below), in reliance upon, and in conformity with, written information furnished to the Company through the Representatives by or on behalf
of any Underwriter specifically for inclusion therein, which information the parties hereto agree is limited to the Underwriters’
Information (as defined in Section 18). As used in this paragraph (b) and elsewhere in this Agreement:
“Applicable Time”
means [6:45] P.M., New York time, on the date of this Agreement or such other time as agreed to by the Company and the Representatives.
“Pricing Prospectus”
means the Preliminary Prospectus relating to the Securities that is included in the Registration Statement immediately prior to the Applicable
Time, including any document incorporated by reference therein.
“Issuer Free Writing
Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations
relating to the Securities in the form filed or required to be filed with the Commission or, if not required to be filed, in the form
retained in the Company’s records pursuant to Rule 433(g) of the Rules and Regulations.
“General Use Free
Writing Prospectus” means any Issuer Free Writing Prospectus that is identified on Schedule B to this Agreement.
“Limited Use Free
Writing Prospectuses” means any Issuer Free Writing Prospectus that is not a General Use Free Writing Prospectus.
(c) No
Stop Orders; No Material Misstatements. No order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing
Prospectus or the Prospectus relating to the proposed offering of the Securities has been issued by the Commission, and no proceeding
for that purpose or pursuant to Section 8A of the Securities Act has been instituted or, to the Company’s Knowledge, threatened
by the Commission, and each Preliminary Prospectus, at the time of filing thereof, conformed in all material respects to the requirements
of the Securities Act and the Rules and Regulations, and did not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Company makes no representations or warranties as to information contained in
or omitted from any Preliminary Prospectus, in reliance upon, and in conformity with, written information furnished to the Company through
the Representatives by or on behalf of any Underwriter specifically for inclusion therein, which information the parties hereto agree
is limited to the Underwriters’ Information.
(d) Registration
Statement and Prospectus Contents. At the respective times, the Registration Statement and any amendments thereto became or become
effective as to the Underwriters and at the Closing Date, the Registration Statement and any amendments thereto conformed and will conform
in all material respects to the requirements of the Securities Act and the Rules and Regulations and did not and will not contain any
untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements
therein not misleading; and the Prospectus and any amendments or supplements thereto, at the time the Prospectus or any amendment or supplement
thereto was issued and at the Closing Date, conformed and will conform in all material respects to the requirements of the Securities
Act and the Rules and Regulations and did not and will not contain an 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; provided,
however, that the foregoing representations and warranties in this paragraph (d) shall not apply to information contained in or
omitted from the Registration Statement or the Prospectus, or any amendment or supplement thereto, in reliance upon, and in conformity
with, written information furnished to the Company through the Representatives by or on behalf of any Underwriter specifically for inclusion
therein, which information the parties hereto agree is limited to the Underwriters’ Information.
(e) Issuer
Free Writing Prospectus. Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times through the completion
of the public offer and sale of the Securities or until any earlier date that the Company notified or notifies the Representatives as
described in Section 4(i)(e), did not, does not and will not include any information that conflicted, conflicts or will conflict with
the information contained in the Registration Statement, Pricing Prospectus or the Prospectus, including any document incorporated by
reference therein and any prospectus supplement deemed to be a part thereof that has not been superseded or modified, or included or would
include an untrue statement of a material fact or omitted or would omit 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, provided,
however, that the foregoing representations and warranties in this paragraph (e) shall not apply to information contained in or
omitted from the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus, or any amendment or supplement thereto,
in reliance upon, and in conformity with, written information furnished to the Company through the Representatives by or on behalf of
any Underwriter specifically for inclusion therein, which information the parties hereto agree is limited to the Underwriters’ Information.
(f) Documents
Incorporated by Reference. The documents incorporated by reference in the Prospectus, when they became effective or were filed with
the Commission, as the case may be, conformed in all material respects to the requirements of the Securities Act or the Exchange Act,
as applicable, and the rules and regulations of the Commission thereunder and none of such documents contained any untrue statement of
a material fact or omitted to state any material fact required to be stated therein, or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated by reference
in the Prospectus, when such documents are filed with Commission will conform in all material respects to the requirements of the Securities
Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder and will not contain any untrue statement
of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(g) Distribution
of Offering Materials. The Company has not, directly or indirectly, distributed and will not distribute any offering material in connection
with the offering and sale of the Securities other than any Preliminary Prospectus, the Prospectus and other materials, if any, permitted
under the Securities Act and consistent with Section 4(i)(b) below. The Company will file with the Commission all Issuer Free Writing
Prospectuses (other than a “road show” as described in Rule 433(d)(8) of the Rules and Regulations) in the time and manner
required under Rules 163(b)(2) and 433(d) of the Rules and Regulations.
(h) Not
an Ineligible Issuer. (A) At the time of filing the Initial Registration Statement, any Rule 462(b) Registration Statement and any
post-effective amendments thereto, and at the date hereof, the Company was not, and the Company currently is not, an “ineligible
issuer,” as defined in Rule 405 of the Rules and Regulations.
(i) Organization
and Good Standing. The Company and each of its subsidiaries (as defined in Section 16) have been duly organized and are validly existing
as corporations or other legal entities in good standing (or the foreign equivalent thereof) under the laws of their respective jurisdictions
of organization (to the extent that the concept of good standing is applicable in such jurisdiction). The Company and each of its subsidiaries
are duly qualified to do business and are in good standing as foreign corporations or other legal entities in each jurisdiction in which
their respective ownership or lease of property or the conduct of their respective businesses requires such qualification and have all
power and authority (corporate or other) necessary to own or hold their respective properties and to conduct the businesses in which they
are engaged, except where the failure to so qualify or have such power or authority would not (i) have, singularly or in the aggregate,
a material adverse effect on the business, properties, financial position, results of operations or prospects of the Company and its subsidiaries
taken as a whole, or (ii) impair in any material respect the ability of the Company to perform its obligations under this Agreement or
to consummate any transactions contemplated by this Agreement, the General Disclosure Package or the Prospectus (any such effect as described
in clauses (i) or (ii), a “Material Adverse Effect”). The Company does not own or control, directly or indirectly,
any significant corporation, association or other entity other than the subsidiaries listed in Exhibit 21 to the annual report of the
last completed fiscal year of the Company on Form 10-K filed under Section 13(a) or 15(d) of the Exchange Act prior to the date hereof.
(j) Underwriting
Agreement. This Agreement has been duly authorized, executed and delivered by the Company.
(k) The
Shares and Warrant Shares. The Shares to be issued and sold by the Company to the Underwriters hereunder have been duly and validly
authorized and, when issued and delivered against payment therefor as provided herein, will be duly and validly issued, fully paid and
non-assessable and will conform to the descriptions thereof in the Registration Statement, the General Disclosure Package and the Prospectus;
and the issuance of the Shares is not subject to any preemptive or similar rights. The Warrants have been duly authorized for issuance
and sale pursuant to this Agreement and, when executed and delivered by the Company, will be valid and binding obligations of the Company,
enforceable against the Company in accordance with their respective terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general
principles. The Warrant Shares have been duly authorized and validly reserved for issuance upon exercise of the Warrants in a number sufficient
to meet the current exercise requirements. The Warrant Shares, when issued and delivered upon exercise of the Warrants in accordance therewith,
will be validly issued, fully paid and nonassessable, and the issuance of the Warrant Shares is not subject to any preemptive or similar
rights. The Common Stock, the Shares, the Warrants and the Warrant Shares conform to the descriptions thereof contained in the Registration
Statement, the General Disclosure Package and the Prospectus.
(l) Capitalization.
The Company has an authorized capitalization as set forth in the General Disclosure Package, and all of the issued shares of capital stock
of the Company, have been duly and validly authorized and issued, are fully paid and non-assessable, have been issued in compliance with
federal and state securities laws, and conform to the description thereof contained in the General Disclosure Package and the Prospectus.
All of the Company’s options, warrants and other rights to purchase or exchange any securities for shares of the Company’s
capital stock have been duly authorized and validly issued and were issued in compliance with federal and state securities laws. As of
the date hereof, the authorized capital stock of the Company consists of (A) 300,000,000 shares of Common Stock, of which 164,643,277
shares are issued and outstanding and (B) 1,000,000 shares of preferred stock, par value $0.0001 per share, of which no shares are issued
and outstanding. None of the outstanding shares of Common Stock were issued in violation of any preemptive rights, rights of first refusal
or other similar rights to subscribe for or purchase securities of the Company. As of the date set forth in the General Disclosure Package,
there were no authorized or outstanding shares of capital stock, options, warrants, preemptive rights, rights of first refusal or other
rights to purchase, or equity or debt securities convertible into or exchangeable or exercisable for, any capital stock of the Company
or any of its subsidiaries other than those described above or accurately described in the General Disclosure Package. Since such date,
the Company has not issued any securities other than Common Stock issued pursuant to the exercise of warrants or upon the exercise or
vesting of stock options or other awards outstanding under the Company’s stock option plans, options or other securities granted
or issued pursuant to the Company’s existing equity compensation plans or other plans, the issuance of Common Stock pursuant to
employee stock purchase plans and the issuance of Common Stock upon the exercise of warrants or the conversion of convertible debt. The
description of the Company’s stock option, stock bonus and other stock plans or arrangements, and the options or other rights granted
thereunder, as described in the General Disclosure Package and the Prospectus, accurately and fairly present the information required
to be shown with respect to such plans, arrangements, options and rights.
(m) Capitalization
of Subsidiaries. All the outstanding shares of capital stock (if any) of each subsidiary of the Company have been duly authorized
and validly issued, are fully paid and nonassessable and, except to the extent set forth in the General Disclosure Package or the Prospectus,
are owned by the Company directly or indirectly through one or more wholly-owned subsidiaries, free and clear of any claim, lien, encumbrance,
security interest, restriction upon voting or transfer or any other claim of any third party.
(n) No
Conflicts. The execution, delivery and performance of this Agreement and the Warrants by the Company, the issue and sale of the Securities
by the Company and the consummation of the transactions contemplated hereby will not (with or without notice or lapse of time or both)
(i) conflict with or result in a breach or violation of any of the terms or provisions of, constitute a default or, except as set forth
in the General Disclosure Package, a Debt Repayment Triggering Event (as defined below) under, or result in the creation or imposition
of any lien, encumbrance, security interest, claim or charge upon any property or assets of the Company or any subsidiary pursuant to,
any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries
is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any
of its subsidiaries is subject, (ii) result in any violation of the provisions of the charter or by-laws (or analogous governing instruments,
as applicable) of the Company or any of its subsidiaries or (iii) result in the violation of any law, statute, rule, regulation, judgment,
order or decree of any court or governmental or regulatory agency or body, domestic or foreign, having jurisdiction over the Company or
any of its subsidiaries or any of their properties or assets except, in the case of clauses (i) and (iii) above, for any such conflict,
breach, violation or default that would not, individually or in the aggregate, have a Material Adverse Effect. A “Debt Repayment
Triggering Event” means any event or condition that gives, or with the giving of notice or lapse of time would give the
holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require
the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company of any of its subsidiaries.
(o) No
Consents Required. Except for the registration of the Securities under the Securities Act and applicable state securities laws, and
such consents, approvals, authorizations, orders and registrations or qualifications as may be required by the Financial Industry Regulatory
Authority (“FINRA”) and the Nasdaq Stock Market LLC in connection with the purchase and distribution of the
Securities by the Underwriters and the listing of the Shares on the Nasdaq Stock Market LLC, no consent, approval, authorization or order
of, or filing, qualification or registration (each an “Authorization”) with, any court, governmental or regulatory
agency or body, foreign or domestic, which has not been made, obtained or taken and is not in full force and effect, is required for the
execution, delivery and performance of this Agreement or the Warrants by the Company, the issuance and sale of the Securities or the consummation
of the transactions contemplated hereby; and no event has occurred that allows or results in, or after notice or lapse of time or both
would allow or result in, revocation, suspension, termination or invalidation of any such Authorization or any other impairment of the
rights of the holder or maker of any such Authorization.
(p) Independent
Auditors. Deloitte & Touche LLP, who have certified certain financial statements and related schedules of the Company and its
subsidiaries included or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus, is
an independent registered public accounting firm with respect to the Company and its subsidiaries within the meaning of Article 2-01 of
Regulation S-X and the Public Company Accounting Oversight Board (United States) (the “PCAOB”).
(q) Financial
Statements. The financial statements, together with the related notes and schedules, included or incorporated by reference in the
General Disclosure Package, the Prospectus and in the Registration Statement fairly present the financial position and the results of
operations and changes in financial position of the Company and its consolidated subsidiaries and other consolidated entities at the respective
dates or for the respective periods therein specified. Such statements and related notes and schedules have been prepared in accordance
with the generally accepted accounting principles in the United States (“GAAP”) applied on a consistent basis
throughout the periods involved except as may be set forth in the related notes included or incorporated by reference in the General Disclosure
Package. The financial statements, together with the related notes and schedules, included or incorporated by reference in the General
Disclosure Package and the Prospectus comply in all material respects with Regulation S-X. No other financial statements or supporting
schedules or exhibits are required by Regulation S-X to be described, included or incorporated by reference in the Registration Statement,
the General Disclosure Package or the Prospectus. The summary and selected financial data included or incorporated by reference in the
General Disclosure Package, the Prospectus and the Registration Statement fairly present the information shown therein as at the respective
dates and for the respective periods specified and are derived from the consolidated financial statements set forth incorporated by reference
in the Registration Statement, the Pricing Prospectus and the Prospectus and other financial information. All information contained in
the Registration Statement, the General Disclosure Package and the Prospectus regarding “non-GAAP financial measures” (as
defined in Regulation G) complies with Regulation G and Item 10 of Regulations S-K, to the extent applicable.
(r) eXtensible
Business Reporting Language. The interactive data in eXtensible Business Reporting Language included or incorporated by reference
in the Registration Statement fairly presents the information called for in all material respects and has been prepared in accordance
with the Commission’s rules and guidelines applicable thereto.
(s) No
Material Adverse Change. The Company and its subsidiaries, taken as a whole, have not sustained, since the date of the latest audited
financial statements included or incorporated by reference in the General Disclosure Package, (i) any material loss or interference with
its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or action,
order or decree of any court or governmental or regulatory authority, otherwise than as set forth or contemplated in the General Disclosure
Package; or (ii) any change in the capital stock (other than the issuance of shares of Common Stock upon exercise of stock options and
warrants or conversion of debt described as outstanding in, and the grant or vesting of options and awards under existing equity incentive
plans described in, the Registration statement, the General Disclosure Package and the Prospectus) or long-term debt of the Company or
any of its subsidiaries, or any dividend or distribution of any kind declared, set aside for payment, paid or made by the Company on any
class of capital stock, or any material adverse changes, or any development involving a prospective material adverse change, in or affecting
the business, properties, assets, general affairs, management, financial position, prospects, stockholders’ equity or results of
operations of the Company and its subsidiaries taken as a whole, otherwise than as set forth or contemplated in the General Disclosure
Package.
(t) Legal
Proceedings. Except as set forth in the General Disclosure Package, there is no legal or governmental proceeding pending to which
the Company or any of its subsidiaries is a party or of which any property or assets of the Company or any of its subsidiaries is the
subject that is required to be described in the Registration Statement, the General Disclosure Package or the Prospectus or a document
incorporated by reference therein and is not described therein, or which, singularly or in the aggregate, if determined adversely to the
Company or any of its subsidiaries, could reasonably be expected to have a Material Adverse Effect; and no such proceedings are threatened
or, to the Company’s knowledge after reasonable investigation and due diligence inquiry (“Knowledge”),
contemplated by governmental or regulatory authorities or threatened by others.
(u) No
Violation or Default. Neither the Company nor any of its subsidiaries is (i) in violation of its charter or by-laws (or analogous
governing instrument, as applicable), (ii) in default in any respect, and no event has occurred which, with notice or lapse of time or
both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it is bound or to which
any of its property or assets is subject or (iii) in violation in any respect of any law, ordinance, governmental rule, regulation or
court order, decree or judgment to which it or its property or assets may be subject, except in the case of clauses (ii) and (iii) that
would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
(v) Licenses
or Permits. The Company and each of its subsidiaries possess all licenses, certificates, authorizations and permits issued by, and
have made all declarations and filings with, the appropriate local, state, federal or foreign governmental or regulatory agencies or bodies
that are necessary for the ownership or lease of their respective properties or the conduct of their respective businesses as described
in the General Disclosure Package and the Prospectus (collectively, the “Governmental Permits”) except where
any failures to possess or make the same would not, singularly or in the aggregate, have a Material Adverse Effect. The Company and its
subsidiaries are in compliance with all such Governmental Permits; all such Governmental Permits are valid and in full force and effect,
except where the validity or failure to be in full force and effect would not, singularly or in the aggregate, have a Material Adverse
Effect. Neither the Company nor any subsidiary has received notification of any revocation, modification, suspension, termination or invalidation
(or proceedings related thereto) of any such Governmental Permit and the Company has no reason to believe that any such Governmental Permit
will not be renewed.
(w) Investment
Company Act. Neither the Company nor any of its subsidiaries is or, after giving effect to the offering of the Securities and the
application of the proceeds thereof as described in the General Disclosure Package and the Prospectus, will be required to register as
an “investment company” or an entity “controlled” by an “investment company” within the meaning of
the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission thereunder.
(x)
No Stabilization. Neither the Company nor, to the Company’s Knowledge, any of its officers, directors or affiliates has taken
or will take, directly or indirectly, any action designed or intended to stabilize or manipulate the price of any security of the Company,
or which caused or resulted in, or which might in the future reasonably be expected to cause or result in, stabilization or manipulation
of the price of any security of the Company.
(y)
Intellectual Property. Except as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse
Effect, the Company and its subsidiaries own or possess the valid right to use, or can acquire the rights to use on reasonable terms all
(i) all patents, patent applications, trademarks, trademark registrations, service marks, service mark registrations, Internet domain
name registrations, copyrights, copyright registrations, licenses, trade secret rights (“Intellectual Property Rights”)
and (ii) inventions, software, works of authorships, trademarks, service marks, trade names, databases, formulae, know how, Internet domain
names and other intellectual property (including trade secrets and other unpatented and/or unpatentable proprietary confidential information,
systems, or procedures) (collectively, “Intellectual Property Assets”) necessary to conduct their respective businesses
as currently conducted, and as described as proposed to be conducted in the General Disclosure Package and the Prospectus. The Company
and its subsidiaries have not received any opinion from their legal counsel concluding that any activities of their respective businesses
infringe, misappropriate, or otherwise violate, valid and enforceable Intellectual Property Rights of any other person, and have not received
written notice of any challenge, which is to their Knowledge still pending, by any other person to the rights of the Company and its subsidiaries
with respect to any Intellectual Property Rights or Intellectual Property Assets owned or used by the Company or its subsidiaries. Except
as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect to the Company’s Knowledge,
the Company and its subsidiaries’ respective businesses as now conducted do not give rise to any infringement of, any misappropriation
of, or other violation of, any valid and enforceable Intellectual Property Rights of any other person. Except as would not reasonably
be expected, individually or in the aggregate, to have a Material Adverse Effect, all licenses for the use of the Intellectual Property
Rights described in the General Disclosure Package and the Prospectus are valid, binding upon, and enforceable by or against the parties
thereto in accordance to its terms. Except as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse
Effect, the Company has complied in all material respects with, and is not in breach nor has received any asserted or threatened claim
of breach of any Intellectual Property license, and the Company has no knowledge of any breach or anticipated breach by any other person
to any Intellectual Property license. Except as described in the General Disclosure Package, or as would not be expected to have a Material
Adverse Effect, no claim has been made against the Company alleging the infringement by the Company of any patent, trademark, service
mark, trade name, copyright, trade secret, license in or other intellectual property right or franchise right of any person. The Company
has taken all commercially reasonable steps to protect, maintain and safeguard its Intellectual Property Rights, including the execution
of appropriate nondisclosure and confidentiality agreements. The consummation of the transactions contemplated by this Agreement will
not result in the loss or impairment of or payment of any additional amounts with respect to, nor require the consent of any other person
in respect of, the Company’s right to own, use, or hold for use any of the material Intellectual Property Rights as owned, used
or held for use in the conduct of the business as currently conducted. With respect to the use of the software in the Company’s business
as it is currently conducted, the Company has not experienced or has no Knowledge of any material defects in such software including any
material error or omission in the processing of any transactions other than defects which have been corrected, and to the Company’s
Knowledge, no such software contains any device or feature designed to disrupt, disable, or otherwise impair the functioning of any software
or is subject to the terms of any “open source” or other similar license that provides for the source code of the software to
be publicly distributed or dedicated to the public.
(z) IT
Systems. (i)(x) Except as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, there
has been no security breach or attack or other compromise of or relating to any of the Company’s and its subsidiaries’ information
technology and computer systems, networks, hardware, software, data (including the data of their respective customers, employees, suppliers,
vendors and any third party data maintained by or on behalf of them), equipment or technology (“IT Systems and Data”),
and (y) the Company and its subsidiaries have not been notified of, and have no knowledge of any event or condition that would reasonably
be expected to result in any security breach, attack or compromise to their IT Systems and Data, (ii) the Company and its subsidiaries
have complied, and are presently in compliance with, all applicable laws, statutes or any judgment, order, rule or regulation of any court
or arbitrator or governmental or regulatory authority and all contractual obligations relating to the privacy and security of IT Systems
and Data and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation or modification and (iii) the
Company and its subsidiaries have implemented backup and disaster recovery technology.
(aa) Title
to Real and Personal Property. The Company and each of its subsidiaries have good and marketable title in and (in the case of real
property) to, or have valid and marketable rights to lease or otherwise use, all items of real or personal property which are material
to the business of the Company and its subsidiaries taken as a whole, in each case free and clear of all liens, encumbrances, security
interests, claims and defects that (i) do not, singularly or in the aggregate, 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 or any of its subsidiaries or (ii) could
not reasonably be expected, singularly or in the aggregate, to have a Material Adverse Effect.
(bb) No
Labor Dispute. There is (A) no significant unfair labor practice complaint pending against the Company, or any of its
subsidiaries, nor to the Company’s Knowledge, threatened against it or any of its subsidiaries, before the National Labor
Relations Board, any state or local labor relation board or any foreign labor relations board, and no significant grievance or
significant arbitration proceeding arising out of or under any collective bargaining agreement is so pending against the Company or
any of its subsidiaries, or, to the Company’s Knowledge, threatened against it and (B) no labor disturbance by or dispute
with, employees of the Company or any of its subsidiaries exists or, to the Company’s Knowledge, is contemplated or
threatened, and the Company is not aware of any existing or imminent labor disturbance by the employees of any of its or its
subsidiaries’ principal suppliers, manufacturers, customers or contractors, that could reasonably be expected, singularly or
in the aggregate, to have a Material Adverse Effect. The Company is not aware that any key employee or significant group of
employees of the Company or any subsidiary plans to terminate employment with the Company or any such subsidiary.
(cc) Compliance
with ERISA. No “prohibited transaction” (as defined in Section 406 of the Employee Retirement Income Security Act of
1974, as amended, including the regulations and published interpretations thereunder (“ERISA”), or Section
4975 of the Internal Revenue Code of 1986, as amended from time to time (the “Code”)) or
“accumulated funding deficiency” (as defined in Section 302 of ERISA) or any of the events set forth in Section 4043(b)
of ERISA (other than events with respect to which the thirty (30)-day notice requirement under Section 4043 of ERISA has been
waived) has occurred or could reasonably be expected to occur with respect to any employee benefit plan of the Company or any of its
subsidiaries which could, singularly or in the aggregate, have a Material Adverse Effect. Each employee benefit plan of the Company
or any of its subsidiaries is in compliance in all material respects with applicable law, including ERISA and the Code. The Company
and its subsidiaries have not incurred and could not reasonably be expected to incur liability under Title IV of ERISA with respect
to the termination of, or withdrawal from, any pension plan (as defined in ERISA). Each pension plan for which the Company or any of
its subsidiaries would have any liability that is intended to be qualified under Section 401(a) of the Code is so qualified, and
nothing has occurred, whether by action or by failure to act, which could, singularly or in the aggregate, cause the loss of such
qualification.
(dd) Environmental
Laws and Hazardous Materials. Except as would not reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect, the Company and its subsidiaries are in compliance with all foreign, federal, state and local rules, laws and
regulations relating to the use, treatment, storage and disposal of hazardous or toxic substances or waste and protection of health
and safety or the environment which are applicable to their businesses (“Environmental Laws”), there has
been no storage, generation, transportation, handling, treatment, disposal, discharge, emission, or other release of any kind of
toxic or other wastes or other hazardous substances by, due to, or caused by the Company or any of its subsidiaries (or, to the
Company’s Knowledge, any other entity for whose acts or omissions the Company or any of its subsidiaries is or may otherwise
be liable) upon any of the property now or previously owned or leased by the Company or any of its subsidiaries, or upon any other
property, in violation of any law, statute, ordinance, rule, regulation, order, judgment, decree or permit or which would, under any
law, statute, ordinance, rule (including rule of common law), regulation, order, judgment, decree or permit, give rise to any
liability; and there has been no disposal, discharge, emission or other release of any kind onto such property or into the
environment surrounding such property of any toxic or other wastes or other hazardous substances with respect to which the Company
or any of its subsidiaries has knowledge.
(ee) Taxes.
The Company and its subsidiaries (i) have filed all necessary federal, state, local and foreign tax returns or have properly
requested extensions thereof, and all such returns were true, complete and correct, (ii) have paid all federal, state and foreign
taxes, for which it is liable, including, without limitation, all sales and use taxes and all taxes which the Company or any of its
subsidiaries is obligated to withhold from amounts owing to employees, creditors and third parties, and (iii) do not have any tax
deficiency or claims outstanding or assessed or, to its Knowledge, proposed against any of them, except those, in each of the cases
described in clauses (i), (ii) and (iii) above, that would not, singularly or in the aggregate, have a Material Adverse Effect or as
may be contested in good faith and by appropriate procedures.
(ff) Insurance.
The Company and each of its subsidiaries carry, or are covered by, insurance in such amounts and covering such risks as the Company
reasonably believes to be prudent and customary for the conduct of their respective businesses and the value of their respective
properties. Neither the Company nor any of its subsidiaries has any reason to believe that it will not be able to renew its existing
insurance coverage as and when such coverage expires or to obtain comparable coverage from similar insurers as may be necessary to
continue its business at a cost that would not reasonably be expected to have a Material Adverse Effect. Neither the Company nor any
of its subsidiaries has received written notice from any insurer, agent of such insurer or the broker of the Company or any of its
subsidiaries that any material capital improvements or any other material expenditures (other than premium payments) are required or
necessary to be made in order to continue such insurance.
(gg) Accounting
Controls. The Company and each of its subsidiaries maintains a system of “internal control over financial reporting”
(as such term is defined in Rule 13a-15(f) of the General Rules and Regulations under the Exchange Act (the “Exchange
Act Rules”)) that complies with the requirements of the Exchange Act and has been designed by their respective
principal executive and principal financial officers, or under their supervision, to provide reasonable assurances 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 accountability for assets; (iii)
access to assets is permitted only in accordance with management’s general or specific authorization; (iv) the recorded
accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to
any differences and (v) interactive data in eXtensible Business Reporting Language included or incorporated by reference in the
Registration Statement fairly presents the Commission’s rules and guidelines applicable thereto. As of the date hereof, to the
Company’s Knowledge, the Company’s internal control over financial reporting is effective. Except as described in the
General Disclosure Package, since the end of the Company’s most recent audited fiscal year, there has been (A) no material
weakness in the Company’s internal control over financial reporting (whether or not remediated) and (B) no change in the
Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially
affect, the Company’s internal control over financial reporting.
(hh) Disclosure
Controls. The Company maintains disclosure controls and procedures (as such is defined in Rule 13a-15(e) of the Exchange Act
Rules) that have been designed to ensure that information required to be disclosed by the Company and its subsidiaries in reports
that they file or submit under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in
the Commission’s rules and forms, including controls and procedures designed to ensure that such information is accumulated
and communicated to the Company’s management to allow timely decisions regarding disclosures. The Company has conducted
evaluations of the effectiveness of their disclosure controls as required by Rule 13a-15 of the Exchange Act.
(ii) Minute
Books. The minute books of the Company and each of its subsidiaries have been made available to the Underwriters and counsel for
the Underwriters, and such books (i) contain a complete summary of all meetings and actions of the board of directors (including each
board committee) and stockholders of the Company (or analogous governing bodies and interest holders, as applicable), and each of its
subsidiaries since the time of its respective incorporation or organization through the date of the latest meeting and action, and (ii)
accurately in all material respects reflect all transactions referred to in such minutes.
(jj) No
Undisclosed Relationships. No relationship, direct or indirect, exists between or among the Company or any of its subsidiaries
on the one hand, and the directors, officers, stockholders (or analogous interest holders), customers or suppliers of the Company or
any of its affiliates on the other hand, which is required to be described in the General Disclosure Package and the Prospectus or a
document incorporated by reference therein and which is not so described.
(kk) No
Registration Rights. No person or entity has the right to require registration of shares of Common Stock or other securities of
the Company or any of its subsidiaries because of the filing or effectiveness of the Registration Statement or otherwise, except for
persons and entities who have expressly waived such right in writing or who have been given timely and proper written notice and
have failed to exercise such right within the time or times required under the terms and conditions of such right. Except as
described in the General Disclosure Package, there are no persons with registration rights or similar rights to have any securities
registered by the Company or any of its subsidiaries under the Securities Act.
(ll) Margin
Rules. The application of the proceeds received by the Company from the issuance, sale and delivery of the Securities as
described in the General Disclosure Package and the Prospectus will not violate Regulation T, U or X of the Board of Governors of
the Federal Reserve system or any other regulation of such Board of Governors.
(mm) No
Broker’s Fees. Neither the Company nor any of its subsidiaries is a party to any contract, agreement or understanding with
any person (other than this Agreement) that would give rise to a valid claim against the Company or any of its subsidiaries or the
Underwriters for a brokerage commission, finder’s fee or like payment in connection with the offering and sale of the
Securities or any transaction contemplated by this Agreement, the Registration Statement, the General Disclosure Package or the
Prospectus.
(nn) No
Restrictions on Subsidiaries. Except as described in the General Disclosure Package and the Prospectus, no subsidiary of the
Company is currently prohibited, directly or indirectly, under any agreement or other instrument to which it is a party or is
subject, from paying any dividends to the Company, from making any other distribution on such subsidiary’s capital stock, from
repaying to the Company any loans or advances to such subsidiary from the Company or from transferring any of such
subsidiary’s properties or assets to the Company or any other subsidiary of the Company.
(oo) PFIC.
The Company is not a Passive Foreign Investment Company (“PFIC”) within the meaning of Section 1296 of the
United States Internal Revenue Code of 1966, and the Company is not likely to become a PFIC.
(pp) Forward-Looking
Statements. No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange
Act) contained in either 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.
(qq) Listing.
The Company is subject to and in compliance in all material respects with the reporting requirements of Section 13 or Section 15(d) of
the Exchange Act. The Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange Act and is listed on the Nasdaq Stock
Market LLC (the “Exchange”), and the Company has taken no action designed to, or reasonably likely to have the
effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from the Exchange, nor
has the Company received any notification in writing that the Commission or the FINRA is contemplating terminating such registration or
listing.
(rr) Sarbanes-Oxley
Act. There is and has been no failure on the part of the company or, to the Company’s Knowledge, any of the Company’s
officers or directors, in their capacities as such, to comply with any provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations
promulgated in connection therewith (the “Sarbanes-Oxley Act”), including Section 402 related to loans and Sections
302 and 906 related to certifications.
(ss) No Unlawful
Payments. Neither the Company nor any of its subsidiaries nor, to the Company’s Knowledge, any director, officer, employee,
agent, affiliate or other person acting on behalf of the Company or any subsidiary, has (i) used any corporate funds for unlawful contributions,
gifts, entertainment or other unlawful expenses relating to political activity, (ii) made any direct or indirect unlawful payment to foreign
or domestic government officials or employees, political parties or campaigns, political party officials, or candidates for political
office from corporate funds, (iii) violated or is in violation of any provision of the U.S. Foreign Corrupt Practices Act of 1977, as
amended, or any applicable anti-corruption laws, rules, or regulation of any other jurisdiction in which the Company or any subsidiary
conducts business, or (iv) made any other unlawful bribe, rebate, payoff, influence payment, kickback, or other unlawful payment to any
person.
(tt) Statistical
and Market Data. The statistical and market related data included in the Registration Statement, the General Disclosure Package and
the Prospectus are based on or derived from sources that the Company believes to be reliable and accurate, and such data agree with the
sources from which they are derived.
(uu) Compliance
with Money Laundering Laws. The operations of the Company and its subsidiaries are and have been conducted at all times in compliance
with all applicable financial recordkeeping and reporting requirements, including those of the U.S. Bank Secrecy Act, as amended by Title
III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA
PATRIOT Act), and the applicable anti-money laundering statutes of jurisdictions where the Company and its subsidiaries conduct business,
the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by
any governmental agency (collectively, the “Anti-Money Laundering Laws”), and no action, suit or proceeding
by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with
respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(vv) Compliance
with OFAC.
(A) Neither the Company nor any of
its subsidiaries, nor any director, officer or employee thereof, nor, to the Company’s knowledge, any agent, affiliate, representative
or other person acting on behalf of the Company or any of its subsidiaries, is an individual or entity (“Person”)
that is, or is owned or controlled by a Person that is: (i) the subject of any sanctions administered or enforced by the U.S. Department
of Treasury’s Office of Foreign Assets Control (“OFAC”), the United Nations Security Council (“UNSC”),
the European Union (“EU”), His Majesty’s Treasury (“HMT”), or other relevant
sanctions authority (collectively, “Sanctions”), nor (ii) located, organized or resident in a country or territory
that is the subject of a U.S. government embargo (including, without limitation, the so-called Donetsk People’s Republic, the so-called
Luhansk People’s Republic, the Crimea Region of Ukraine, Cuba, Iran, North Korea, Syria and the non-government controlled areas
of the Zaporizhzhia and Kherson Regions).
(B)
The Company will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such
proceeds to any subsidiary, joint venture partner or other Person: (i) to fund or facilitate any activities or business of or with any
Person that, at the time of such funding or facilitation, is the subject of Sanctions, or in any country or territory that, at the time
of such funding or facilitation, is the subject of a U.S. government embargo; or (ii) in any other manner that will result in a violation
of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(C)
For the past five (5) years, the Company and its subsidiaries have not knowingly engaged in, are not now knowingly engaged in, and will
not engage in, any direct or indirect dealings or transactions with any Person that at the time of the dealing or transaction is or was
the subject of Sanctions or any country or territory that, at the time of the dealing or transaction is or was, to the Company’s
knowledge, the subject of a U.S. government embargo.
(ww) No Associated
Persons; FINRA Matters. Neither the Company nor any of its affiliates (within the meaning of FINRA Rule 5121(f)(1)) directly or indirectly
controls, is controlled by, or is under common control with, or is an associated person (within the meaning of Article I, Section 1(ee)
of the By-laws of FINRA) of, any member firm of FINRA, other than as described on Schedule D hereof. The Company qualifies as an
“experienced issuer” (within the meaning of FINRA Conduct Rule 5110(j)(6)) for purposes of the exemption from filing under
FINRA Conduct Rule 5110(h)(1)(C).
(xx) No
Acquisitions or Dispositions. Except as are described in the Registration Statement, the General Disclosure Package and the Prospectus,
there are no contracts, letters of intent, term sheets, agreement, arrangements or understandings with respect to the direct or indirect
acquisition or disposition by the Company of material interests in real or personal property.
(yy) Registration
Statement for Warrants. The Company shall, at all times while any Warrants are outstanding, use its commercially reasonable efforts
to maintain a registration statement covering the issue and sale of the Warrant Shares upon exercise of the Warrants such that the Warrant
Shares, when issued, will not be subject to resale and restrictions under the Securities Act except to the extent that the Warrant Shares
are owned by affiliates.
(zz) Reserve
for Warrant Shares. The Company shall, at all times while any Warrants are outstanding, reserve and keep available out of the aggregate
of its authorized but unissued and otherwise unreserved Common Stock, solely for the purpose of enabling it to issue Warrant Shares upon
exercise of such Warrants, the number of Warrant Shares that are initially issuable and deliverables upon the then-outstanding Warrants.
Any certificate signed by or on behalf of the
Company and delivered to the Representatives or to counsel for the Underwriters shall be deemed to be a representation and warranty by
the Company to each Underwriter as to the matters covered thereby.
3. Purchase,
Sale and Delivery of Offered Securities. On the basis of the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Company agrees to sell to the Underwriters, and the Underwriters agree, severally
and not jointly, to purchase from the Company the respective numbers of Shares set forth opposite the names of the Underwriters in Schedule
A hereto.
The purchase price per Share
and accompanying one Warrant to be paid by the Underwriters to the Company will be $1.3775 per share and accompanying one Warrant (the
“Purchase Price”).
The Company will (a) deliver
the Shares to the Representatives for the respective accounts of the several Underwriters, through the facilities of The Depository Trust
Company, and (b) physically deliver, or cause to be delivered, to the purchasers thereof the Warrants in accordance with the Underwriters’
instructions, or, in each case, at the election of the Representatives, in the form of definitive certificates, in each such case, issued
in such names and in such denominations as the Representatives may direct by notice in writing to the Company given at or prior to 12:00
Noon, New York time, on the second (2nd) full business day preceding the Closing Date against payment of the aggregate Purchase
Price therefor by wire transfer in federal (same day) funds to an account at a bank specified by the Company payable to the order of the
Company. Time shall be of the essence, and delivery at the time and place specified pursuant to this Agreement is a further condition
of the obligations of each Underwriter hereunder. The time and date of the delivery and closing shall be at 10:00 A.M., New York time,
on December 19, 2023, in accordance with Rule 15c6-1 of the Exchange Act. The time and date of such payment and delivery are herein referred
to as the “Closing Date”. The Closing Date and the location of delivery of, and the form of payment for, the
Shares and Warrants may be varied by agreement between the Company and the Representatives.
The several Underwriters propose
to offer the Securities for sale upon the terms and conditions set forth in the Prospectus.
4. Further
Agreements
(i) The
Company agrees with the several Underwriters:
(a) Required
Filings; Amendments or Supplements; Notice to the Representatives. To prepare the Rule 462(b) Registration Statement, if necessary,
in a form approved, which approval may not be unreasonably withheld, conditioned or delayed, by the Representatives and file such Rule
462(b) Registration Statement with the Commission by 10:00 P.M., New York time, on the date hereof, and the Company shall at the time
of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for
the payment of such fee pursuant to Rule 111(b) under the Rules and Regulations; to prepare the Prospectus in a form approved, which approval
may not be unreasonably withheld, conditioned or delayed, by the Representatives containing information previously omitted at the time
of effectiveness of the Registration Statement in reliance on Rules 430A, 430B or 430C of the Rules and Regulations and to file such Prospectus
pursuant to Rule 424(b) of the Rules and Regulations not later than the second business (2nd) day following the execution and
delivery of this Agreement or, if applicable, such earlier time as may be required by the Securities Act; to notify the Representatives
promptly of the Company’s intention to file or prepare any supplement or amendment to the Registration Statement or to the Prospectus
and to make no amendment or supplement to the Registration Statement, the General Disclosure Package or to the Prospectus to which the
Representatives shall reasonably object in a timely manner by notice to the Company after a reasonable period to review; to advise the
Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed
or becomes effective or any supplement to the General Disclosure Package or the Prospectus or any amended Prospectus or any Issuer Free
Writing Prospectus has been filed and to furnish the Underwriters with copies thereof; to file promptly all material required to be filed
by the Company with the Commission pursuant to Rules 433(d) or 163(b)(2) of the Rules and Regulations, as the case may be; to file promptly
all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus
(or in lieu thereof, the notice referred to in Rule 173(a) of the Rules and Regulations) is required in connection with the offering or
sale of the Securities; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of
any stop order or of any order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus, the
Prospectus, of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, of the initiation or threatening
of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement,
the General Disclosure Package or the Prospectus or for additional information; and, in the event of the issuance of any stop order or
of any order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus or suspending
any such qualification, and promptly to use its reasonable best efforts to obtain the withdrawal of such order.
(b) Permitted
Free Writing Prospectus. The Company represents and agrees that, unless it obtains the prior consent of the Representatives, not to
be unreasonably withheld, conditioned or delayed, and each Underwriter represents and agrees that, unless it obtains the prior consent
of the Company and the Representatives, not to be unreasonably withheld, conditioned or delayed, it has not made and will not, other than
the final term sheet prepared and filed pursuant to Section 4(d) hereof, make any offer relating to the Securities that would constitute
a “free writing prospectus” as defined in Rule 405 of the Rules and Regulations unless the prior written consent of the Representatives
has been received (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent
of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectuses included in Schedule
B hereto. The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an Issuer
Free Writing Prospectus, comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Issuer Free
Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping and will not
take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d)
of the Rules and Regulations a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would
not have been required to file thereunder.
(c) Ongoing
Compliance. If at any time prior to the date when a prospectus relating to the Securities is required to be delivered (or in lieu
thereof, the notice referred to in Rule 173(a) under the Securities Act) any event occurs or condition exists as a result of which the
Prospectus as then amended or supplemented would include any untrue statement of a material fact, or omit to state any material fact necessary
to make the statements therein, in light of the circumstances under which they were made when the Prospectus is delivered (or in lieu
thereof, the notice referred to in Rule 173(a) of the Rules and Regulations), not misleading, or if it is necessary at any time to amend
or supplement the Registration Statement or the Prospectus or to file under the Exchange Act any document incorporated by reference in
the Prospectus to comply with the Securities Act or the Exchange Act, that the Company will promptly notify the Representatives thereof
and upon their request will prepare an appropriate amendment or supplement or upon their request make an appropriate filing pursuant to
Section 13 or 14 of the Exchange Act in form and substance reasonably satisfactory to the Representatives which will correct such
statement or omission or effect such compliance and will use commercially reasonable efforts to have any amendment to the Registration
Statement declared effective as soon as possible. The Company will furnish without charge to each Underwriter and to any dealer in securities
as many copies as the Representatives may from time to time reasonably request of such amendment or supplement. In case any Underwriter
is required to deliver a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) of the Rules and Regulations) relating
to the Securities, the Company upon the request of the Representatives will prepare promptly an amended or supplemented Prospectus as
may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Securities Act and deliver to such Underwriter
as many copies as such Underwriter may reasonably request of such amended or supplemented Prospectus complying with Section 10(a)(3) of
the Securities Act.
(d) Amendment
to General Disclosure Package. If the General Disclosure Package is being used to solicit offers to buy the Securities at a time when
the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company
or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order
to make the statements therein, in the light of the circumstances then prevailing, not misleading, or to make the statements therein not
conflict with the information contained or incorporated by reference in the Registration Statement then on file and not superseded or
modified, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company
promptly will either (i) prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate
amendment or supplement to the General Disclosure Package or (ii) prepare and file with the Commission an appropriate filing under the
Exchange Act which shall be incorporated by reference in the General Disclosure Package so that the General Disclosure Package as so amended
or supplemented will not, in the light of the circumstances then prevailing, be misleading or conflict with the Registration Statement
then on file, or so that the General Disclosure Package will comply with law.
(e) Amendment
to Issuer Free Writing Prospectus. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs
an event or development as a result of which such Issuer Free Writing Prospectus conflicted or will conflict with the information contained
in the Registration Statement, Pricing Prospectus or Prospectus, including any document incorporated by reference therein and any prospectus
supplement deemed to be a part thereof and not superseded or modified or included or would include an untrue statement of a material fact
or omitted or would omit 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 prevailing at the subsequent time, not misleading, the Company has promptly notified or will promptly
notify the Representatives so that any use of the Issuer Free Writing Prospectus may cease until it is amended or supplemented and has
promptly amended or will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct
such conflict, untrue statement or omission. The foregoing sentence does not apply to statements in or omissions from any Issuer Free
Writing Prospectus in reliance upon, and in conformity with, written information furnished to the Company through the Representatives
by or on behalf of any Underwriter specifically for inclusion therein, which information the parties hereto agree is limited to the Underwriters’
Information.
(f) Delivery
of Registration Statement. To the extent not available on the Commission’s Electronic Data Gathering, Analysis and Retrieval
system or any successor system (“EDGAR”), upon the request of the Representatives, to furnish promptly to the
Representatives and to counsel for the Underwriters a signed copy of the Registration Statement as originally filed with the Commission,
and of each amendment thereto filed with the Commission, including all consents and exhibits filed therewith.
(g) Delivery
of Copies. Upon request of the Representatives, to the extent not available on EDGAR, to deliver promptly to the Representatives in
New York City such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration
Statement as originally filed with the Commission (in each case excluding exhibits), (ii) each Preliminary Prospectus, (iii) any Issuer
Free Writing Prospectus, (iv) the Prospectus (the delivery of the documents referred to in clauses (i), (ii), (iii) and (iv) of this paragraph
(g) to be made not later than 10:00 A.M., New York time, on the business day following the execution and delivery of this Agreement),
(v) conformed copies of any amendment to the Registration Statement (excluding exhibits), (vi) any amendment or supplement to the General
Disclosure Package or the Prospectus (the delivery of the documents referred to in clauses (v) and (vi) of this paragraph (g) to be made
not later than 10:00 A.M., New York City time, on the business day following the date of such amendment or supplement) and (vii) any document
incorporated by reference in the General Disclosure Package or the Prospectus (excluding exhibits thereto) (the delivery of the documents
referred to in clause (vi) of this paragraph (g) to be made not later than 10:00 A.M., New York City time, on the business day following
the date of such document).
(h) Earnings
Statement. To make generally available to its stockholders as soon as practicable, but in any event not later than sixteen (16) months
after the effective date of the Registration Statement (as defined in Rule 158(c) of the Rules and Regulations), an earnings statement
of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act (including, at the
option of the Company, Rule 158), provided that the Company will be deemed to have furnished such statement to its stockholders to the
extent it is filed on EDGAR.
(i) Blue
Sky Compliance. To take promptly from time to time such actions as the Representatives may reasonably request to qualify the Shares
and Warrants for offering and sale under the securities or Blue Sky laws of such jurisdictions (domestic or foreign) as the Representatives
may reasonably designate and to continue such qualifications in effect, and to comply with such laws, for so long as required to permit
the offer and sale of Shares and Warrants in such jurisdictions; provided that the Company and its subsidiaries shall not be obligated
to (i) qualify as foreign corporations in any jurisdiction in which they are not so qualified, (ii) file a general consent to service
of process in any jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not otherwise so subject.
(j) Reports.
Upon request, during the period of three (3) years from the date hereof, to deliver to each of the Underwriters, (i) as soon as they are
available, copies of all reports or other communications (financial or other) furnished to stockholders, and (ii) as soon as they are
available, copies of any reports and financial statements furnished or filed with the Commission or any national securities exchange on
which the Securities are listed. However, so long as the Company is subject to the reporting requirements of either Section 13 or Section
15(d) of the Exchange Act and is timely filing reports via EDGAR, it is not required to furnish such reports or statements to the Underwriters.
(k) Lock-Up.
During the period commencing on and including the date hereof and ending on and including the 60th day following the date of
this Agreement, (the “Lock-Up Period”) the Company will not, without the prior written consent of Cowen (which
consent may be withheld at the sole discretion of Cowen), directly or indirectly offer, sell (including, without limitation, any short
sale), assign, transfer, pledge, contract to sell, establish an open “put equivalent position” within the meaning of Rule
16a-1(h) under the Exchange Act, or otherwise dispose of, or announce the offering of, or submit or file any registration statement under
the Securities Act in respect of, any Common Stock, options, rights or warrants to acquire Common Stock or securities exchangeable or
exercisable for or convertible into Common Stock (other than is contemplated by this Agreement with respect to the Securities) or publicly
announce any intention to do any of the foregoing; provided, however, that the Company may (i) issue Common Stock, options to purchase
Common Stock, restricted stock units and other equity awards, shares of Common Stock underlying options, restricted stock units and other
securities, each pursuant to any director or employee equity incentive plan, stock ownership plan or dividend reinvestment plan of the
Company in effect on the date hereof and described in the General Disclosure Package or pursuant to an inducement grant within the meaning
of Nasdaq Listing Rule 5635(c)(4); (ii) issue Common Stock pursuant to the exercise (including net exercise) of an option or warrant or
the exercise, conversion or exchange of securities, or upon the vesting of restricted stock units, which securities, warrants, options
or restricted stock units are outstanding on the date hereof and described in the General Disclosure Package, as well as the Warrant Shares
upon exercise of the Warrants; (iii) issue shares of Common Stock or other securities issued in connection with a transaction with a third
party that includes a bona fide commercial relationship (including joint ventures, marketing or distribution arrangements, collaboration
agreements or intellectual property license agreements) or any acquisition of assets of not less than a majority or controlling portion
of the equity of another entity, provided that (x) the aggregate number of shares of Common Stock that the Company may sell or issue or
agree to sell or issue shall not exceed 5% of the total number of shares of Common Stock issued and outstanding as of the date of this
Agreement and (y) each recipient of shares of Common Stock or securities convertible into or exercisable for Common Stock shall execute
a “lock-up” agreement, substantially in the form of Exhibit A hereto (iv) adopt a new equity incentive plan, and file
a registration statement on Form S-8 under the Securities Act to register the offer and sale of securities to be issued pursuant to such
new equity incentive plan, and issue securities pursuant to such new equity incentive plan (including, without limitation, the issuance
of shares of Common Stock upon the exercise of options or other securities issued pursuant to such new equity incentive plan), provided
that (1) such new equity incentive plan satisfies the transaction requirements of General Instruction A.1 of Form S-8 under the Securities
Act and (2) this clause (iv) shall not be available unless each recipient of shares of Common Stock, or securities exchangeable or exercisable
for or convertible into Common Stock, pursuant to such new equity incentive plan shall be contractually prohibited from selling, offering,
disposing of or otherwise transferring any such shares or securities during the remainder of the Lock-Up Period. The Company will cause
each person and entity listed in Schedule D to furnish to Cowen, prior to the Closing Date, a “lock-up” agreement,
substantially in the form of Exhibit A hereto. In addition, the Company will direct the transfer agent to place stop transfer restrictions
upon any such securities of the Company that are bound by such “lock-up” agreements.
(l) Delivery
of SEC Correspondence. To supply the Underwriters with copies of all formal written correspondence to and from, and all documents
issued to and by, the Commission in connection with the registration of the Shares and Warrants under the Securities Act or any of the
Registration Statement, any Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto or document incorporated
by reference therein.
(m) Press
Releases. Prior to the Closing Date, not to issue any press release or other public communication directly or indirectly or hold any
press conference with respect to the Company, its condition, financial or otherwise, or earnings, business affairs or business prospects
(except for routine oral marketing communications in the ordinary course of business and consistent with the past practices of the Company
and of which the Representatives is notified), without the prior consent of the Representatives (which consent shall not be unreasonably
withheld), unless in the judgment of the Company and its counsel, and after notification to the Representatives, such press release or
communication is required by law.
(n) Compliance
with Regulation M. Until the Underwriters shall have notified the Company of the completion of the resale of the Shares and Warrants,
that the Company will not, and will use commercially reasonable efforts to cause its affiliated purchasers (as defined in Regulation M
under the Exchange Act) not to, either alone or with one or more other persons, bid for or purchase, for any account in which it or any
of its affiliated purchasers has a beneficial interest, any Shares and Warrants, or attempt to induce any person to purchase any Shares
and Warrants; and not to, and to use commercially reasonable efforts to cause its affiliated purchasers not to, make bids or purchase
for the purpose of creating actual, or apparent, active trading in or of raising the price of the Shares and Warrants.
(o) Registrar
and Transfer Agent. To maintain, at its expense, a registrar and transfer agent for the Shares and Warrant Shares.
(p) Use
of Proceeds. To apply the net proceeds from the sale of the Securities as set forth in the Registration Statement, the General Disclosure
Package and the Prospectus under the heading “Use of Proceeds,” and except as disclosed in the General Disclosure Package,
the Company does not intend to use any of the proceeds from the sale of the Securities hereunder to repay any outstanding debt owed to
any affiliate of any Underwriter.
(q) Exchange
Listing. To use its reasonable best efforts to list the Shares and Warrant Shares on the Exchange.
(r) Performance
of Covenants and Satisfaction of Conditions. To use commercially reasonable efforts to do and perform all things required to be done
or performed under this Agreement by the Company prior to the Closing Date and to satisfy all conditions precedent to the delivery of
the Shares.
(s) Registration
Statement for Warrants. The Company will, at all times while any Warrants are outstanding, use its commercially reasonable efforts
to maintain a registration statement covering the issue and sale of the Warrant Shares upon exercise of the Warrants such that the Warrant
Shares, when issued, will not be subject to resale and restrictions under the Securities Act except to the extent that the Warrant Shares
are owned by affiliates.
5. Payment
of Expenses. The Company agrees to pay, or reimburse if paid by any Underwriter, whether or not the transactions contemplated
hereby are consummated or this Agreement is terminated: (a) the costs incident to the authorization, issuance, sale, preparation and delivery
of the Securities and any taxes payable in that connection; (b) the costs incident to the registration of the Securities under the Securities
Act; (c) the costs incident to the preparation, printing and distribution of the Registration Statement, any Preliminary Prospectus, any
Issuer Free Writing Prospectus, the General Disclosure Package, the Prospectus, any amendments, supplements and exhibits thereto or any
document incorporated by reference therein and the costs of printing, reproducing and distributing, the “Agreement Among Underwriters”
between the Representatives and the Underwriters, the Master Selected Dealers’ Agreement, the Underwriters’ Questionnaire,
this Agreement and any closing documents by mail, telex or other means of communications; (d) the fees and expenses (including related
fees and expenses of counsel for the Underwriters reasonably incurred) incurred in connection with securing any required review by FINRA
of the terms of the sale of the Securities and any filings made with FINRA; (e) any applicable listing or other fees; (f) the fees and
expenses (including related fees and expenses of counsel to the Underwriters reasonably incurred) of qualifying the Securities under the
securities laws of the several jurisdictions as provided in Section 4(i)(i)) and of preparing, printing and distributing wrappers, Blue
Sky Memoranda and Legal Investment Surveys (provided, that, the amount payable by the Company with respect to fees and expenses of counsel
to the Underwriters contained in clauses (d) and (f) shall not exceed $20,000 in the aggregate); (g) the cost of preparing and printing
stock certificates; (h) all fees and expenses of the registrar and transfer agent of the Shares; (i) the costs and expenses of the Company
relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Securities,
including, without limitation, expenses associated with the preparation or dissemination of any electronic road show, expenses associated
with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations
with the prior approval of the Company, travel and lodging expenses of the officers of the Company and such consultants, including the
cost of any aircraft chartered in connection with the road show with the prior written approval of the Company, and (j) all other costs
and expenses of the Company incident to the offering of the Securities or the performance of the obligations of the Company under this
Agreement (including, without limitation, the fees and expenses of the Company’s counsel and the Company’s independent accountants);
provided that, except to the extent otherwise provided in this Section 5 and in Sections 9 and 10, the Underwriters shall pay their
own costs and expenses, including the fees and expenses of their counsel not contemplated herein, any transfer taxes on the resale of
any Securities by them and the expenses of advertising any offering of the Securities made by the Underwriters.
6. Conditions
of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder are subject to the accuracy,
when made and as of the Applicable Time and on the Closing Date, of the representations and warranties of the Company contained herein,
to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder, and to each of the following additional terms and conditions:
(a) Registration
Compliance; No Stop Orders. The Registration Statement has become effective under the Securities Act, and no stop order suspending
the effectiveness of the Registration Statement or any part thereof, preventing or suspending the use of, any Preliminary Prospectus,
the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose
or pursuant to Section 8A under the Securities Act shall have been initiated or threatened by the Commission, and all requests for additional
information on the part of the Commission (to be included or incorporated by reference in the Registration Statement or the Prospectus
or otherwise) shall have been complied with to the reasonable satisfaction of the Representatives; the Rule 462(b) Registration Statement,
if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable time period
prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(i)(a), and the Rule
462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have
raised no unresolved objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby.
(b) No
Material Misstatements. None of the Underwriters shall have discovered and disclosed to the Company on or prior to the Closing Date
that the Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of
counsel for the Underwriters, is material or omits to state any fact which, in the opinion of such counsel, is material and is required
to be stated therein or is necessary to make the statements therein not misleading, or that the General Disclosure Package, any Issuer
Free Writing Prospectus or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, in the opinion
of such counsel, is material or omits to state any fact which, in the reasonable opinion of such counsel, is material and is necessary
in order to make the statements, in the light of the circumstances in which they were made, not misleading.
(c) Corporate
Proceedings. All corporate proceedings incident to the authorization, form and validity of each of this Agreement, the Securities,
the Registration Statement, the General Disclosure Package, each Issuer Free Writing Prospectus and the Prospectus and the transactions
contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have
furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Opinion
and 10b-5 Statement of Counsel for the Company. Haynes and Boone, LLP shall have furnished to the Representatives such counsel’s
written opinion and 10b-5 Statement, as counsel to the Company, addressed to the Underwriters and dated the Closing Date, in form and
substance reasonably satisfactory to the Representatives, to the effect set forth in Exhibit II hereto.
(e) Opinion
and 10b-5 Statement of Counsel for the Underwriters. The Representatives shall have received from Duane Morris LLP, counsel for the
Underwriters, such opinion or opinions and 10b-5 Statement, dated the Closing Date, with respect to such matters as the Underwriters may
reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon
such matters.
(f) Comfort
Letter. At the time of the execution of this Agreement, the Representatives shall have received from Deloitte & Touche LLP a letter,
addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representatives (i) confirming
that they are an independent registered accounting firm with respect to the Company and its subsidiaries within the meaning of the Securities
Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, of the type ordinarily included
in accountants’ “comfort letters” to underwriters, with respect to the financial statements and certain financial information
contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus.
(g) Bring
Down Comfort. On the effective date of any post-effective amendment to the Registration Statement and on the Closing Date, the Representatives
shall have received a letter (the “bring-down letter”) from Deloitte & Touche LLP addressed to the Underwriters
and dated the Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments
since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus,
as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and
findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect
to the financial information and other matters covered by its letter delivered to the Representatives concurrently with the execution
of this Agreement pursuant to paragraph (f) of this Section 6.
(h) Officer’s
Certificate. The Company shall have furnished to the Representatives a certificate, dated the Closing Date, of its Chief Executive
Officer and its Chief Financial Officer stating in their respective capacities as officers of the Company on behalf of the Company that
(i) no stop order suspending the effectiveness of the Registration Statement (including, for avoidance of doubt, any Rule 462(b) Registration
Statement), or any post-effective amendment thereto, shall be in effect and no proceedings for such purpose shall have been instituted
or, to their knowledge, threatened by the Commission, (ii) for the period from and including the date of this Agreement through and including
such Closing Date, there has not occurred any Material Adverse Effect, (iii) to their knowledge, after reasonable investigation, as of
such Closing Date, the representations and warranties of the Company in this Agreement are true and correct in all material respects (except
for such representations and warranties that are qualified by materiality, which shall be true and correct) and the Company has complied
with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to such Closing Date,
and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference
in the General Disclosure Package, any Material Adverse Effect in the financial position or results of operations of the Company, or any
change or development that, singularly or in the aggregate, would reasonably be expected to involve a Material Adverse Effect, except
as set forth in the General Disclosure Package and the Prospectus.
(i) No
Material Adverse Effect. Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated
by reference in the General Disclosure Package as of the date hereof, (i) neither the Company nor any of its subsidiaries shall have sustained
Material Adverse Effect, and (ii) there shall not have been any change in the capital stock or long-term debt of the Company or any of
its subsidiaries, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause
(i) or (ii) of this paragraph (i), is, in the judgment of the Representatives, so material and adverse as to make it impracticable or
inadvisable to proceed with the sale or delivery of the Securities on the terms and in the manner contemplated in the General Disclosure
Package.
(j) No
Legal Impediment to Issuance. No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted,
adopted or issued by any governmental or regulatory agency or body which would prevent the issuance or sale of the Securities; and no
injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued
which would prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely
affect the business or operations of the Company.
(k) No
Downgrade. Subsequent to the execution and delivery of this Agreement (i) no downgrading shall have occurred in the Company’s
corporate credit rating or the rating accorded the Company’s debt securities by any “nationally recognized statistical rating
organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) of the Rules and Regulations and (ii) no
such organization shall have publicly announced that it has under surveillance or review (other than an announcement with positive implications
of a possible upgrading), the Company’s corporate credit rating or the rating of any of the Company’s debt securities.
(l) Market
Conditions. Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading
in any of the Company’s securities shall have been suspended or materially limited by the Commission or the Exchange, or trading
in securities generally on the New York Stock Exchange, NASDAQ Stock Market LLC NASDAQ Global Select Market, NASDAQ Global Market, NASDAQ
Capital Market or the NYSE MKT LLC or in the over-the-counter market, or trading in any securities of the Company on any exchange or in
the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices
shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory
body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities
or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii)
the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak
of or escalation in hostilities involving the United States, or there shall have been a declaration of a national emergency or war by
the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions
(or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment
of the Representatives, impracticable or inadvisable to proceed with the sale or delivery of the Securities on the terms and in the manner
contemplated in the General Disclosure Package and the Prospectus.
(m) Exchange
Listing. The Company shall have filed a Listing of Additional Shares Notification Form with Nasdaq with respect to the Shares and
Warrant Shares.
(n) Good
Standing. The Representatives shall have received on and as of the Closing Date satisfactory evidence of the good standing of the
Company in its jurisdiction of organization and its good standing as a foreign entity in such other jurisdictions as the Representatives
may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities
of such jurisdictions.
(o) Lock
Up Agreements. Cowen shall have received the written agreements, substantially in the form of Exhibit I hereto, of the
officers and directors, of the Company listed in Schedule D to this Agreement.
(p) Secretary’s
Certificate. The Company shall have furnished to the Representatives a Secretary’s Certificate of the Company, in form and substance
reasonably satisfactory to counsel for the Underwriters and customary for the type of offering contemplated by this Agreement.
(q) Additional
Document. On or prior to the Closing Date, the Company shall have furnished to the Representatives such further certificates and documents
as the Representatives may reasonably request.
All opinions, letters, evidence
and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if
they are in form and substance reasonably satisfactory to counsel for the Underwriters.
7. Indemnification
and Contribution.
(a) Indemnification
of Underwriters by the Company. The Company shall indemnify and hold harmless:
each Underwriter, its
affiliates, directors, officers, managers, members, employees, representatives and agents and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively the “Underwriter Indemnified
Parties,” and each an “Underwriter Indemnified Party”) against any loss, claim, damage, expense
or liability whatsoever (or any action, investigation or proceeding in respect thereof), joint or several, to which such Underwriter Indemnified
Party may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, expense, liability, action, investigation
or proceeding arises out of or is based upon (A) any untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, any Issuer Free Writing Prospectus, any “issuer information” filed or required to be filed pursuant
to Rule 433(d) of the Rules and Regulations, the Registration Statement, the Prospectus, or in any amendment or supplement thereto or
document incorporated by reference therein or in any materials or information provided to investors by, or with the approval of, the Company
in connection with the marketing of the offering of the Common Stock, including any roadshow or investor presentations made to investors
by the Company (whether in person or electronically) (“Marketing Materials”) or (B) the omission or alleged
omission to state in any Preliminary Prospectus, any Issuer Free Writing Prospectus, any “issuer information” filed or required
to be filed pursuant to Rule 433(d) of the Rules and Regulations, the Registration Statement or the Prospectus, or in any amendment or
supplement thereto or document incorporated by reference therein, or in any Marketing Materials, a material fact required to be stated
therein or necessary to make the statements therein not misleading, in light of the circumstances in which they were made (other than
with respect to the Registration Statement), and shall reimburse each Underwriter Indemnified Party promptly upon demand for any documented
legal fees or other expenses reasonably incurred by that Underwriter Indemnified Party in connection with investigating, or preparing
to defend, or defending against, or appearing as a third party witness in respect of, or otherwise incurred in connection with, any such
loss, claim, damage, expense, liability, action, investigation or proceeding, as such fees and expenses are incurred; provided,
however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage, expense or liability
arises out of or is based upon an untrue statement or alleged untrue statement in, or omission or alleged omission from any Preliminary
Prospectus, the Registration Statement or the Prospectus, or any such amendment or supplement thereto, any Issuer Free Writing Prospectus
or any Marketing Materials made in reliance upon and in conformity with written information furnished to the Company through the Representatives
by or on behalf of any Underwriter specifically for use therein, which information the parties hereto agree is limited to the Underwriters’
Information.
The indemnity agreement in this Section
7(a) is not exclusive and is in addition to each other liability which the Company might have under this Agreement or otherwise, and shall
not limit any rights or remedies which may otherwise be available under this Agreement, at law or in equity to any Underwriter Indemnified
Party.
(b) Indemnification
of Company by the Underwriters. Each Underwriter, severally and not jointly, shall indemnify and hold harmless the Company and its
directors, its officers who signed the Registration Statement and each person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively the “Company Indemnified Parties”
and each a “Company Indemnified Party”) against any loss, claim, damage, expense or liability whatsoever (or
any action, investigation or proceeding in respect thereof), joint or several, to which such Company Indemnified Party may become subject,
under the Securities Act or otherwise, insofar as such loss, claim, damage, expense, liability, action, investigation or proceeding arises
out of or is based upon (i) any untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus,
any Issuer Free Writing Prospectus, any “issuer information” filed or required to be filed pursuant to Rule 433(d) of the
Rules and Regulations, the Registration Statement or the Prospectus, or in any amendment or supplement thereto, or (ii) the omission or
alleged omission to state in any Preliminary Prospectus, any Issuer Free Writing Prospectus, any “issuer information” filed
or required to be filed pursuant to Rule 433(d) of the Rules and Regulations, the Registration Statement or the Prospectus, or in any
amendment or supplement thereto, a material fact required to be stated therein or necessary to make the statements therein not misleading,
in light of the circumstances in which they were made (other than with respect to the Registration Statement), but in each case only to
the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity
with written information furnished to the Company through the Representatives by or on behalf of that Underwriter specifically for use
therein, which information the parties hereto agree is limited to the Underwriters’ Information, and shall reimburse the Company
Indemnified Parties for any legal or other expenses reasonably incurred by such party in connection with investigating or preparing to
defend or defending against or appearing as third party witness in connection with any such loss, claim, damage, liability, action, investigation
or proceeding, as such fees and expenses are incurred. This indemnity agreement is not exclusive and will be in addition to any liability
which the Underwriters might otherwise have and shall not limit any rights or remedies which may otherwise be available under this Agreement,
at law or in equity to the Company Indemnified Parties.
(c) Promptly
after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, the indemnified party shall, if
a claim in respect thereof is to be made against an indemnifying party under this Section 7, notify such indemnifying party in writing
of the commencement of that action; provided, however, that the failure to notify the indemnifying party shall not relieve it from
any liability which it may have under this Section 7 except to the extent it has been materially prejudiced by such failure; and, provided,
further, that the failure to notify an indemnifying party shall not relieve it from any liability which it may have to an indemnified
party otherwise than under this Section 7. If any such action shall be brought against an indemnified party, and it shall notify the indemnifying
party thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense of such action with counsel reasonably satisfactory to the indemnified party
(which counsel shall not, except with the written consent of the indemnified party, be counsel to the indemnifying party). After notice
from the indemnifying party to the indemnified party of its election to assume the defense of such action, except as provided herein,
the indemnifying party shall not be liable to the indemnified party under Section 7 for any legal or other expenses subsequently incurred
by the indemnified party in connection with the defense of such action other than reasonable costs of investigation; provided, however,
that any indemnified party shall have the right to employ separate counsel in any such action and to participate in the defense of such
action but the fees and expenses of such counsel (other than reasonable costs of investigation) shall be at the expense of such indemnified
party unless (i) the employment thereof has been specifically authorized in writing by the Company in the case of a claim for indemnification
under Section 7(a) or the Representatives in the case of a claim for indemnification under Section 7(b), (ii) such indemnified party shall
have been advised by its counsel that there may be one or more legal defenses available to it which are different from or additional to
those available to the indemnifying party, or (iii) the indemnifying party has failed to assume the defense of such action and employ
counsel reasonably satisfactory to the indemnified party within a reasonable period of time after notice of the commencement of the action
or the indemnifying party does not diligently defend the action after assumption of the defense, in which case, if such indemnified party
notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying
party shall not have the right to assume the defense of (or, in the case of a failure to diligently defend the action after assumption
of the defense, to continue to defend) such action on behalf of such indemnified party and the indemnifying party shall be responsible
for legal or other expenses subsequently incurred by such indemnified party in connection with the defense of such action; provided,
however, that the indemnifying party shall not, in connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees
and expenses of more than one separate firm of attorneys at any time for all such indemnified parties (in addition to any local counsel),
which firm shall be designated in writing by the Representatives if the indemnified parties under this Section 7 consist of any Underwriter
Indemnified Party or by the Company if the indemnified parties under this Section 7 consist of any Company Indemnified Parties. Subject
to this Section 7(c), the amount payable by an indemnifying party under Section 7 shall include, but not be limited to, (x) reasonable
legal fees and expenses of counsel to the indemnified party and any other expenses in investigating, or preparing to defend or defending
against, or appearing as a third party witness in respect of, or otherwise incurred in connection with, any action, investigation, proceeding
or claim, and (y) all amounts paid in settlement of any of the foregoing. No indemnifying party shall, without the prior written consent
of the indemnified parties (which consent shall not be unreasonably withheld, conditioned or delayed), settle or compromise or consent
to the entry of judgment with respect to any pending or threatened action or any claim whatsoever, in respect of which indemnification
or contribution could be sought under this Section 7 (whether or not the indemnified parties are actual or potential parties thereto),
unless such settlement, compromise or consent (i) includes an unconditional release of each indemnified party in form and substance reasonably
satisfactory to such indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as
to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party. Subject to the provisions of the
following sentence, no indemnifying party shall be liable for settlement of any pending or threatened action or any claim whatsoever that
is effected without its written consent (which consent shall not be unreasonably withheld or delayed), but if settled with its written
consent, if its consent has been unreasonably withheld or delayed or if there be a judgment for the plaintiff in any such matter, the
indemnifying party agrees to indemnify and hold harmless any indemnified party from and against any loss or liability by reason of such
settlement or judgment. In addition, if at any time an indemnified party shall have requested that an indemnifying party reimburse the
indemnified party for reasonable fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement
of the nature contemplated by Section 7(a) effected without its written consent if (i) such settlement is entered into more than forty-five
(45) days after receipt by such indemnifying party of the request for reimbursement, (ii) such indemnifying party shall have received
notice of the terms of such settlement at least thirty (30) days prior to such settlement being entered into and (iii) such indemnifying
party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
(d) If
the indemnification provided for in this Section 7 is unavailable or insufficient to hold harmless an indemnified party under Section
7(a) or 7(b), then each indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid, payable or otherwise incurred by such indemnified party as a result of such loss, claim, damage, expense
or liability (or any action, investigation or proceeding in respect thereof), as incurred, (i) in such proportion as shall be appropriate
to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other from the offering of the Securities,
or (ii) if the allocation provided by clause (i) of this Section 7(d) is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) of this Section 7(d) but also the relative fault of the Company on
the one hand and the Underwriters on the other with respect to the statements, omissions, acts or failures to act which resulted in such
loss, claim, damage, expense or liability (or any action, investigation or proceeding in respect thereof) as well as any other relevant
equitable considerations. The relative benefits received by the Company on the one hand and the Underwriters on the other with respect
to such offering shall be deemed to be in the same proportion as the total net proceeds from the offering of the Securities purchased
under this Agreement (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received
by the Underwriters with respect to the Securities purchased under this Agreement, in each case as set forth in the table on the cover
page of the Prospectus. The relative fault of the Company on the one hand and the Underwriters on the other shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company on the one hand or the Underwriters on the other, the intent of the parties
and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement, omission, act or failure
to act; provided that the parties hereto agree that the written information furnished to the Company through the Representatives
by or on behalf of the Underwriters for use in the Preliminary Prospectus, the Registration Statement or the Prospectus, or in any amendment
or supplement thereto, consists solely of the Underwriters’ Information.
(e) The
Company and the Underwriters agree that it would not be just and equitable if contributions pursuant to Section 7(d) above were to be
determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred
to Section 7(d) above. The amount paid or payable by an indemnified party as a result of the loss, claim, damage, expense, liability,
action, investigation or proceeding referred to in Section 7(d) above shall be deemed to include, subject to the limitations set forth
above, any documented legal or other expenses reasonably incurred and documented by such indemnified party in connection with investigating,
preparing to defend or defending against or appearing as a third party witness in respect of, or otherwise incurred in connection with,
any such loss, claim, damage, expense, liability, action, investigation or proceeding. Notwithstanding the provisions of this Section
7, no Underwriters shall be required to contribute any amount in excess of the amount by which the total underwriting discounts and commissions
received by such Underwriter with respect to the offering of the Securities exceeds the amount of any damages which the Underwriter has
otherwise paid or become liable to pay by reason of any untrue or alleged untrue statement, omission or alleged omission, act or alleged
act or failure to act or alleged failure to act. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The
Underwriters’ obligations to contribute as provided in this Section 7 are several in proportion to their respective underwriting
obligations and not joint.
8. Termination.
The obligations of the Underwriters hereunder may be terminated by the Representatives, in their absolute discretion by notice given to
the Company prior to delivery of and payment for the Securities if, prior to that time, any of the events described in Sections 6(j),
6(l) or 6(m) have occurred or if the Underwriters shall decline to purchase the Securities for any reason permitted under this Agreement.
9. Reimbursement
of Underwriters’ Expenses. Notwithstanding anything to the contrary in this Agreement, if (a) this Agreement shall have
been terminated pursuant to Section 8 or 10, (b) the Company shall fail to tender the Securities for delivery to the Underwriters for
any reason not permitted under this Agreement, (c) the Underwriters shall decline to purchase the Securities for any reason permitted
under this Agreement or (d) the sale of the Securities is not consummated because any condition to the obligations of the Underwriters
set forth herein is not satisfied or because of the refusal, inability or failure on the part of the Company to perform any agreement
herein or to satisfy any condition or to comply with the provisions hereof, then in addition to the payment of amounts in accordance with
Section 5, the Company shall, pro rata based on the number of shares of Securities it agreed to sell hereunder reimburse the Underwriters
for the reasonable and documented fees and expenses of Underwriters’ counsel and for such other out-of-pocket expenses as shall
have been reasonably incurred by them in connection with this Agreement and the proposed purchase of the Securities, including, without
limitation, travel and lodging expenses of the Underwriters, and upon demand the Company shall pay the full amount thereof to the Representatives;
provided that if this Agreement is terminated pursuant to Section 10 by reason of the default of one or more Underwriters, the
Company shall not be obligated to reimburse any defaulting Underwriter on account of expenses to the extent incurred by such defaulting
Underwriter, provided further that the foregoing shall not limit any reimbursement obligation of the Company to any non-defaulting
Underwriter under this Section 9.
10. Substitution
of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Securities
hereunder on any Closing Date and the aggregate number of shares which such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date, the
other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares which
such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters shall
so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the
total number of shares to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the Representatives and
the Company for the purchase of such shares by other persons are not made within forty-eight (48) hours after such default, this Agreement
shall terminate.
If the remaining Underwriters
or substituted Underwriters are required hereby or agree to take up all or part of the shares of Securities of a defaulting Underwriter
or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing
Date for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly
to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the
respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of
their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of
its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement
pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter or the Company, except that the representations,
warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to
be paid or reimbursed pursuant to Sections 5 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate
and shall remain in full force and effect.
11. Absence
of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) each
Underwriter’s responsibility to the Company is solely contractual in nature, the Representatives have been retained solely to act
as underwriters in connection with the sale of the Securities and no fiduciary, advisory or agency relationship between the Company and
the Representatives have been created in respect of any of the transactions contemplated by this Agreement, irrespective of whether either
of the Representatives have advised or is advising the Company on other matters;
(b) the
price of the Securities set forth in this Agreement was established by the Company following discussions and arms-length negotiations
with the Representatives, and the Company is capable of evaluating and understanding, and understands and accepts, the terms, risks and
conditions of the transactions contemplated by this Agreement;
(c) it
has been advised that the Representatives and their affiliates are engaged in a broad range of transactions which may involve interests
that differ from those of the Company and that the Representatives have no obligation to disclose such interests and transactions to the
Company by virtue of any fiduciary, advisory or agency relationship; and
(d) it
waives, to the fullest extent permitted by law, any claims it may have against the Representatives for breach of fiduciary duty or alleged
breach of fiduciary duty and agrees that the Representatives shall have no liability (whether direct or indirect) to the Company in respect
of such a fiduciary duty claim or to any person asserting a fiduciary duty claim on behalf of or in right of the Company, including stockholders,
employees or creditors of the Company;
12. Successors;
Persons Entitled to Benefit of Agreement. This Agreement shall inure to the benefit of and be binding upon the several Underwriters,
the Company and their respective successors and assigns. Nothing expressed or mentioned in this Agreement is intended or shall be construed
to give any person, other than the persons mentioned in the preceding sentence, any legal or equitable right, remedy or claim under or
in respect of this Agreement, or any provisions herein contained, this Agreement and all conditions and provisions hereof being intended
to be and being for the sole and exclusive benefit of such persons and for the benefit of no other person; except that the representations,
warranties, covenants, agreements and indemnities of the Company contained in this Agreement shall also be for the benefit of the Underwriter
Indemnified Parties, and the indemnities of the several Underwriters shall be for the benefit of the Company Indemnified Parties. It is
understood that each Underwriter’s responsibility to the Company is solely contractual in nature and the Underwriters do not owe
the Company, or any other party, any fiduciary duty as a result of this Agreement. No purchaser of any of the Securities from any Underwriter
shall be deemed to be a successor or assign by reason merely of such purchase.
13. Survival
of Indemnities, Representations, Warranties, etc. The respective indemnities, covenants, agreements, representations,
warranties and other statements of the Company and the several Underwriters, as set forth in this Agreement or made by them respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless of any investigation made by or on behalf of any Underwriter,
the Company or any person controlling any of them and shall survive delivery of and payment for the Securities. Notwithstanding any termination
of this Agreement, including without limitation any termination pursuant to Section 8 or Section 10, the indemnities, covenants, agreements,
representations, warranties and other statements forth in Sections 2, 5, 7 and 9 and Sections 11 through 21, inclusive, of this Agreement
shall not terminate and shall remain in full force and effect at all times.
14. Recognition
of the U.S. Special Resolution Regimes
(a)
In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the
transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the
same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation,
were governed by the laws of the United States or a state of the United States.
(b) In
the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under
a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to
be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement
were governed by the laws of the United States or a state of the United States.
15. Notices.
All statements, requests, notices and agreements hereunder shall be in writing, and:
(a) if
to the Underwriters, shall be delivered or sent by mail, telex, facsimile transmission or email to Cowen and Company, LLC, Attention:
Head of Equity Capital Markets, Fax: a copy to the General Counsel, Fax: ; and Stifel, Nicolaus & Company, Incorporated, Attention:
Equity Syndicate, One South Street, 15th Floor, Baltimore, MD 21202; and
(b) if
to the Company shall be delivered or sent by mail, telex, facsimile transmission or email to Eos Energy Enterprises, Inc. Attention: General
Counsel, email: and , with a copy to (which shall not constitute notice): Haynes and Boone, LLP, Attention:
Matthew L. Fry, email: .
provided, however, that any notice to an
Underwriter pursuant to Section 7 shall be delivered or sent by mail, or facsimile transmission to such Underwriter at its address set
forth in its acceptance telex to the Representatives, which address will be supplied to any other party hereto by the Representatives
upon request. Any such statements, requests, notices or agreements shall take effect at the time of receipt thereof.
16. Definition
of Certain Terms. For purposes of this Agreement, (a) “affiliate” has the meaning set forth in Rule
405 under the Securities Act, (b) “business day” means any day on which the New York Stock Exchange, Inc. is
open for trading (c) “subsidiary” has the meaning set forth in Rule 405 of the Rules and Regulations; (d)
“BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted
in accordance with, 12 U.S.C. § 1841(k), (e) “Covered Entity” means any of the following: (i) a “covered
entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank”
as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as
that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b), (f) “Default Right”
has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as
applicable, (g) “U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the
regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations
promulgated thereunder.
17. Governing
Law, Jurisdiction, Waiver of Jury Trial. This Agreement and any claim, controversy or dispute arising under or related to this
Agreement shall be governed by and construed in accordance with the laws of the State of New York, including without limitation Section
5-1401 of the New York General Obligations. Each of the parties irrevocably (a) submits to the exclusive jurisdiction of the Federal and
state courts in the Borough of Manhattan in The City of New York for the purpose of any suit, action or other proceeding arising out of
this Agreement or the transactions contemplated by this Agreement, the Registration Statement and any Preliminary Prospectus or the Prospectus,
(b) agrees that all claims in respect of any such suit, action or proceeding may be heard and determined by any such court, (c) waives
to the fullest extent permitted by applicable law, any immunity from the jurisdiction of any such court or from any legal process, (d)
agrees not to commence any such suit, action or proceeding other than in such courts, and (e) waives, to the fullest extent permitted
by applicable law, any claim that any such suit, action or proceeding is brought in an inconvenient forum. Each of the parties to this
Agreement hereby waives any right to trial by jury in any suit or proceeding arising out of or relating to this Agreement.
18. Underwriters’
Information. The parties hereto acknowledge and agree that, for all purposes of this Agreement, the Underwriters’
Information consists solely of the following information in the Prospectus: the statements concerning the Underwriters contained in the
seventh and tenth paragraphs under the heading “Underwriting.”
19. Authority
of the Representatives. In connection with this Agreement, the Representatives will act for and on behalf of the several Underwriters,
and any action taken under this Agreement by the Representatives, will be binding on all the Underwriters.
20. Partial
Unenforceability. The invalidity or unenforceability of any section, paragraph, clause or provision of this Agreement shall
not affect the validity or enforceability of any other section, paragraph, clause or provision hereof. If any section, paragraph, clause
or provision of this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such minor
changes (and only such minor changes) as are necessary to make it valid and enforceable.
21. General.
This Agreement constitutes the entire agreement of the parties to this Agreement and supersedes all prior written or oral and all contemporaneous
oral agreements, understandings and negotiations with respect to the subject matter hereof. In this Agreement, the masculine, feminine
and neuter genders and the singular and the plural include one another. The section headings in this Agreement are for the convenience
of the parties only and will not affect the construction or interpretation of this Agreement. This Agreement may be amended or modified,
and the observance of any term of this Agreement may be waived, only by a writing signed by the Company and the Representatives.
22. Counterparts.
This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument. This Agreement may be delivered via facsimilie, electronic mail (including pdf or any
electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com or www.echosign.com) or other transmission
method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
If the foregoing is in accordance
with your understanding please indicate your acceptance of this Agreement by signing in the space provided for that purpose below.
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Very truly yours, |
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EOS ENERGY ENTERPRISES, INC. |
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By: |
/s/ Nathan Kroeker |
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Name: |
Nathan Kroeker |
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Title: |
CFO |
Accepted as of the date first above written: |
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Cowen and Company, LLC |
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Stifel, Nicolaus & Company, Incorporated |
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Acting on their own behalf and as Representatives of several Underwriters listed on Schedule A to this Agreement. |
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By: |
Cowen and Company, LLC |
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By: |
/s/ Chris Weekes |
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Name: |
Chris Weekes |
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Title: |
Managing Director |
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By: |
Stifel, Nicolaus & Company, Incorporated |
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By: |
/s/ Lewis Chia |
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Name: |
Lewis Chia |
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Title: |
Managing Director |
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SCHEDULE A
SCHEDULE B
General Use Free Writing Prospectuses
SCHEDULE C
Pricing Information
Shares to be Sold: 34,482,759 shares of Common
Stock
Warrants to be Sold: Warrants to purchase 34,482,759
shares of Common Stock
Combined Offering Price per Share and one accompanying
Warrant: $1.45
Underwriting Discounts and Commissions: 5.00%
Warrant exercise price: $1.60
Estimated Net Proceeds to the Company (after underwriting
discounts and commissions, but before transaction expenses): $47,500,000
SCHEDULE D
List of officers and directors, subject to Section
4(i)(k)
Exhibit I
Form of Lock-Up Agreement
Annex A
Form of Warrant
COMMON STOCK PURCHASE WARRANT
EOS ENERGY ENTERPRISES, INC.
Warrant Shares: [______] |
Initial Issue Date: December 19, 2023 |
THIS COMMON STOCK PURCHASE WARRANT (the “Warrant”)
certifies that, for value received, [________] or its assigns (the “Holder”) is entitled, upon the terms and subject
to the limitations on exercise and the conditions hereinafter set forth, at any time on or after the date hereof (the “Initial
Exercisability Date”) and on or prior to 5:00 p.m. (New York City time) on the date five (5) years following the Initial Exercisability
Date (the “Termination Date”) but not thereafter, to subscribe for and purchase from Eos Energy Enterprises, Inc.,
a Delaware corporation (the “Company”), up to [________] shares (as subject to adjustment hereunder, the “Warrant
Shares”) of the Company’s common stock, $0.0001 par value per share (the Common Stock).” The purchase price
of one share of Common Stock under this Warrant shall be equal to the Exercise Price, as defined in Section 2(b).
Section 1. Definitions.
Capitalized terms used and not otherwise defined herein shall have the meanings set forth in that certain Underwriting Agreement (the
“Underwriting Agreement”), dated December 14, 2023, among the Company, Cowen and Company, LLC, as Representative of
the several Underwriters.
Section 2. Exercise.
(a) Exercise
of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any time or times on
or after the Initial Exercisability Date and on or before the Termination Date by delivery to the Company of a duly executed PDF copy
submitted by e-mail (or e-mail attachment) of the Notice of Exercise in the form annexed hereto (the “Notice of Exercise”).
Within the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined
in Section 2(e)(i) herein) following the date of exercise as aforesaid, the Holder shall deliver the aggregate Exercise Price for the
shares specified in the applicable Notice of Exercise by wire transfer or cashier’s check drawn on a United States bank unless the
cashless exercise procedure specified in Section 2(c) below is specified in the applicable Notice of Exercise. No ink-original Notice
of Exercise shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise
be required. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to
the Company until the Holder has purchased all of the Warrant Shares available hereunder and the Warrant has been exercised in full, in
which case, the Holder shall surrender this Warrant to the Company for cancellation within three (3) Trading Days of the date on which
the final Notice of Exercise is delivered to the Company. Partial exercises of this Warrant resulting in purchases of a portion of the
total number of Warrant Shares available hereunder shall have the effect of lowering the outstanding number of Warrant Shares purchasable
hereunder in an amount equal to the applicable number of Warrant Shares purchased. The Holder and the Company shall maintain records showing
the number of Warrant Shares purchased and the date of such purchases. The Company shall deliver any objection to any Notice of Exercise
within one (1) Business Day of receipt of such notice. The Holder and any assignee, by acceptance of this Warrant, acknowledge and
agree that, by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant Shares hereunder, the
number of Warrant Shares available for purchase hereunder at any given time may be less than the amount stated on the face hereof.
(b) Exercise
Price. The exercise price per share of Common Stock under this Warrant shall be $1.60, subject to adjustment hereunder (the “Exercise
Price”).
(c) Cashless
Exercise. If at the time of exercise hereof there is no effective registration statement registering, or the prospectus contained
therein is not available for the issuance of the Warrant Shares to the Holder, then this Warrant may also be exercised, in whole or in
part, at such time by means of a “cashless exercise” in which the Holder shall be entitled to receive a number of Warrant
Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A), where:
| (A) = | as applicable: (i) the VWAP on the Trading Day immediately preceding the date of the applicable Notice
of Exercise if such Notice of Exercise is (1) both executed and delivered pursuant to Section 2(a) hereof on a day that is not a Trading
Day or (2) both executed and delivered pursuant to Section 2(a) hereof on a Trading Day prior to the opening of “regular trading
hours” (as defined in Rule 600(b) of Regulation NMS promulgated under the federal securities laws) on such Trading Day, (ii) at
the option of the Holder, either (y) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise or
(z) the Bid Price of the Common Stock on the principal Trading Market as reported by Bloomberg L.P. (“Bloomberg”) as
of the time of the Holder’s execution of the applicable Notice of Exercise if such Notice of Exercise is executed during “regular
trading hours” on a Trading Day and is delivered within two (2) hours thereafter (including until two (2) hours after the close
of “regular trading hours” on a Trading Day) pursuant to Section 2(a) hereof or (iii) the VWAP on the date of the applicable
Notice of Exercise if the date of such Notice of Exercise is a Trading Day and such Notice of Exercise is both executed and delivered
pursuant to Section 2(a) hereof after the close of “regular trading hours” on such Trading Day; |
| (B) = | the Exercise Price of this Warrant, as adjusted hereunder; and |
| (X) = | the number of Warrant Shares that would be issuable upon exercise of this Warrant in accordance with the
terms of this Warrant if such exercise were by means of a cash exercise rather than a cashless exercise. |
If Warrant Shares are issued in such a cashless exercise, the parties
acknowledge and agree that in accordance with Section 3(a)(9) of the Securities Act, the Warrant Shares shall take on the characteristics
of the Warrants being exercised, and the holding period of the Warrant Shares being issued may be tacked on to the holding period of this
Warrant. The Company agrees not to take any position contrary to this Section 2(c).
“Bid Price” means, for any date, the price determined by
the first of the following clauses that applies: (a) if the Common Stock is then listed or quoted on a Trading Market, the bid price of
the Common Stock for the time in question (or the nearest preceding date) on the Trading Market on which the Common Stock is then listed
or quoted as reported by Bloomberg (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b)
if OTCQB or OTCQX is not a Trading Market, the volume weighted average price of the Common Stock for such date (or the nearest preceding
date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX and if prices
for the Common Stock are then reported on The Pink Open Market (or a similar organization or agency succeeding to its functions of reporting
prices), the most recent bid price per share of the Common Stock so reported, or (d) in all other cases, the fair market value of a share
of Common Stock as determined by an independent appraiser selected in good faith by the Purchasers of a majority in interest of the Securities
then outstanding and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.
“Trading Day” means, as applicable, (x) with respect
to all price or trading volume determinations relating to the Common Stock, any day on which the Common Stock is traded on the Nasdaq
Capital Market, or, if the Nasdaq Capital Market is not the principal trading market for the Common Stock, then on the principal securities
exchange or securities market on which the Common Stock is then traded, provided that “Trading Day” shall not include any
day on which the Common Stock is scheduled to trade on such exchange or market for less than 4.5 hours or any day that the Common Stock
is suspended from trading during the final hour of trading on such exchange or market (or if such exchange or market does not designate
in advance the closing time of trading on such exchange or market, then during the hour ending at 4:00:00 p.m., New York time) unless
such day is otherwise designated as a Trading Day in writing by the Holder or (y) with respect to all determinations other than price
determinations relating to the Common Stock, any day on which The New York Stock Exchange (or any successor thereto) is open for trading
of securities.
“VWAP” means, for any date, the price determined
by the first of the following clauses that applies: (a) if the Common Stock is then listed or quoted on a Trading Market, the daily volume
weighted average price of the Common Stock for such date (or the nearest preceding date) on the Trading Market on which the Common Stock
is then listed or quoted as reported by Bloomberg (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City
time)), (b) if the OTCQB Venture Market (“OTCQB”) or the OTCQX Best Market (“OTCQX”) is not a Trading
Market, the volume weighted average price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable,
(c) if the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported
on the Pink Open Market (“Pink Market”) operated by the OTC Markets, Inc. (or a similar organization or agency succeeding
to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported, or (d) in all other cases,
the fair market value of a share of Common Stock as determined by an independent appraiser selected in good faith by the Purchasers of
a majority in interest of the Securities then outstanding and reasonably acceptable to the Company, the fees and expenses of which shall
be paid by the Company.
Notwithstanding anything herein to the contrary, on the Termination
Date, this Warrant shall be automatically exercised via cashless exercise pursuant to this Section 2(c).
(d) [Reserved.]
(e) Mechanics
of Exercise.
(i) Delivery
of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted by the Transfer
Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with The Depository Trust Company
through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company is then a participant in such system
and either (A) there is an effective registration statement permitting the issuance of the Warrant Shares to or resale of the Warrant
Shares by Holder or (B) this Warrant is being exercised via cashless exercise and the Warrant Shares are eligible for resale pursuant
to Rule 144 of the Securities Act, and otherwise by physical delivery of a certificate, registered in the Company’s share register
in the name of the Holder or its designee, for the number of Warrant Shares to which the Holder is entitled pursuant to such exercise
to the address specified by the Holder in the Notice of Exercise by the date that is the earliest of (i) two (2) Trading Days after the
delivery to the Company of the Notice of Exercise, (ii) one (1) Trading Day after delivery of the aggregate Exercise Price to the Company
and(iii) the number of Trading Days comprising the Standard Settlement Period after the delivery to the Company of the Notice of Exercise
(such date, the “Warrant Share Delivery Date”). Upon delivery of the Notice of Exercise, the Holder shall be deemed
for all corporate purposes to have become the holder of record of the Warrant Shares with respect to which this Warrant has been exercised,
irrespective of the date of delivery of the Warrant Shares, provided that payment of the aggregate Exercise Price (other than in the case
of a cashless exercise) is received within the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the
Standard Settlement Period following delivery of the Notice of Exercise. If the Company fails for any reason to deliver to the Holder
the Warrant Shares subject to a Notice of Exercise by the Warrant Share Delivery Date, the Company shall pay to the Holder, in cash, as
liquidated damages and not as a penalty, for each $1,000 of Warrant Shares subject to such exercise (based on the VWAP of the Common Stock
on the date of the applicable Notice of Exercise), $10 per Trading Day (increasing to $20 per Trading Day on the third Trading Day after
the Warrant Share Delivery Date) for each Trading Day after such Warrant Share Delivery Date until such Warrant Shares are delivered or
Holder rescinds such exercise. The Company agrees to maintain a transfer agent that is a participant in the FAST program so long as this
Warrant remains outstanding and exercisable. As used herein, “Standard Settlement Period” means the standard settlement period,
expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the Common Stock as in effect on
the date of delivery of the Notice of Exercise.
(ii) Delivery
of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of a Holder and
upon surrender of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the Holder a new Warrant evidencing
the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant shall in all other respects
be identical with this Warrant.
(iii) Rescission
Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant to Section 2(e)(i)
by the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise.
(iv) Compensation
for Buy-In on Failure to Timely Deliver Warrant Shares Upon Exercise. In addition to any other rights available to the Holder, if
the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with the provisions of Section
2(e)(i) above pursuant to an exercise on or before the Warrant Share Delivery Date, and if after such date the Holder is required by its
broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases, shares of Common
Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon such exercise
(a “Buy-In”), then the Company shall (A) pay in cash to the Holder the amount, if any, by which (x) the Holder’s
total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased exceeds (y) the amount obtained
by multiplying (1) the number of Warrant Shares that the Company was required to deliver to the Holder in connection with the exercise
at issue times (2) the price at which the sell order giving rise to such purchase obligation was executed, and (B) at the option of the
Holder, either reinstate the portion of the Warrant and equivalent number of Warrant Shares for which such exercise was not honored (in
which case such exercise shall be deemed rescinded) or deliver to the Holder the number of shares of Common Stock that would have been
issued had the Company timely complied with its exercise and delivery obligations hereunder. For example, if the Holder purchases Common
Stock having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted exercise of shares of Common Stock with
an aggregate sale price giving rise to such purchase obligation of $10,000, under clause (A) of the immediately preceding sentence the
Company shall be required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating the amounts payable
to the Holder in respect of the Buy-In and, upon request of the Company, evidence of the amount of such loss. Nothing herein shall limit
a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree
of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver shares of Common Stock
upon exercise of the Warrant as required pursuant to the terms hereof.
(v) No
Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this
Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company shall,
at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the
Exercise Price or round up to the next whole share.
(vi) Charges,
Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer tax or other incidental
expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the Company, and such Warrant
Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder; provided, however,
that, in the event that Warrant Shares are to be issued in a name other than the name of the Holder, this Warrant when surrendered for
exercise shall be accompanied by the Assignment Form attached hereto duly executed by the Holder and the Company may require, as a condition
thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto. The Company shall pay all Transfer Agent
fees required for same-day processing of any Notice of Exercise and all fees to the Depository Trust Company (or another established clearing
corporation performing similar functions) required for same-day electronic delivery of the Warrant Shares.
(vii) Closing
of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise of this Warrant,
pursuant to the terms hereof.
(f) Holder’s
Exercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the right to exercise
any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance after exercise
as set forth on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates, and any other Persons acting
as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)),
would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the
number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number
of shares of Common Stock issuable upon exercise of this Warrant with respect to which such determination is being made, but shall exclude
the number of shares of Common Stock which would be issuable upon (i) (i) exercise of the remaining, nonexercised portion of this
Warrant beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised
or nonconverted portion of any other securities of the Company (including, without limitation, any other Common Stock Equivalents) subject
to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its
Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 2(f), beneficial ownership
shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being
acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance with Section 13(d)
of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent
that the limitation contained in this Section 2(f) applies, the determination of whether this Warrant is exercisable (in relation to other
securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable
shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s determination
of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates and Attribution
Parties) and of which portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation, and the Company
shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any group status
as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated
thereunder. For purposes of this Section 2(f), in determining the number of outstanding shares of Common Stock, a Holder may rely on the
number of outstanding shares of Common Stock as reflected in (A) the Company’s most recent periodic or annual report filed with
the Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice by the Company
or the Transfer Agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the
Company shall within one (1) Trading Day confirm orally and in writing to the Holder the number of shares of Common Stock then outstanding.
In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of
securities of the Company, including this Warrant, by the Holder or its Affiliates or Attribution Parties since the date as of which such
number of outstanding shares of Common Stock was reported. The “Beneficial Ownership Limitation” shall be [4.99%/9.99%]
of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable
upon exercise of this Warrant. The Holder, upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions
of this Section 2(f), provided that the Beneficial Ownership Limitation in no event exceeds 9.99% of the number of shares of the Common
Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon exercise of this Warrant held by the
Holder and the provisions of this Section 2(f) shall continue to apply. Any increase in the Beneficial Ownership Limitation will not be
effective until the 61st day after such notice is delivered to the Company. The provisions of this paragraph shall be construed and implemented
in a manner otherwise than in strict conformity with the terms of this Section 2(f) to correct this paragraph (or any portion hereof)
which may be defective or inconsistent with the intended Beneficial Ownership Limitation herein contained or to make changes or supplements
necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor
holder of this Warrant.
Section 3. Certain Adjustments.
(a) Stock
Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or otherwise makes
a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable in shares of
Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company upon exercise of this
Warrant), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of reverse
stock split) outstanding shares of Common Stock into a smaller number of shares, or (iv) issues by reclassification of shares of the Common
Stock any shares of capital stock of the Company, then in each case the Exercise Price shall be multiplied by a fraction of which the
numerator shall be the number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately before such event
and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event, and the number of
shares issuable upon exercise of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this Warrant
shall remain unchanged. Any adjustment made pursuant to this Section 3(a) shall become effective immediately after the record date for
the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the effective
date in the case of a subdivision, combination or re-classification.
(b) Subsequent
Rights Offerings. In addition to any adjustments pursuant to Section 3(a) above, if at any time the Company grants, issues or sells
any Common Stock Equivalents or rights to purchase stock, warrants, securities or other property pro rata to the record holders of any
class of shares of Common Stock (the “Purchase Rights”), then the Holder will be entitled to acquire, upon the terms
applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the number
of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise hereof) immediately
before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the
date as of which the record holders of shares of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights.
“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.
(c) Pro
Rata Distributions. During such time as this Warrant is outstanding, if the Company shall declare or make any dividend or other distribution
of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital or otherwise (including,
without limitation, any distribution of cash, stock or other securities, property or options by way of a dividend, spin off, reclassification,
corporate rearrangement, scheme of arrangement or other similar transaction (a “Distribution”), at any time after the
issuance of this Warrant, then, in each such case, the Holder shall be entitled to participate in such Distribution to the same extent
that the Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable upon complete exercise
of this Warrant (without regard to any limitations on exercise hereof) immediately before the date of which a record is taken for such
Distribution, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined for
the participation in such Distribution. To the extent that this Warrant has not been partially or completely exercised at the time of
such Distribution, such portion of the Distribution shall be held in abeyance for the benefit of the Holder until the Holder has exercised
this Warrant.
(d) Fundamental
Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions
effects any merger or consolidation of the Company with or into another Person, (ii) the Company or any subsidiary, directly or indirectly,
effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one
or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company
or another Person) is completed pursuant to which holders of Common Stock are permitted to sell, tender or exchange their shares for other
securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Common Stock or 50% or more of the
voting power of the common equity of the Company, (iv) the Company, directly or indirectly, in one or more related transactions effects
any reclassification, reorganization or recapitalization of the Common Stock or any compulsory share exchange pursuant to which the Common
Stock is effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in
one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation,
a reorganization, recapitalization, spin-off, merger or scheme of arrangement) with another Person or group of Persons whereby such other
Person or group acquires 50% or more of the outstanding shares of Common Stock or 50% or more of the voting power of the common equity
of the Company (each a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall
have the right to receive, for each Warrant Share that would have been issuable upon such exercise immediately prior to the occurrence
of such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(f) on the exercise of this
Warrant), the number of shares of Common Stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation,
and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction
by a holder of the number of shares of Common Stock for which this Warrant is exercisable immediately prior to such Fundamental Transaction
(without regard to any limitation in Section 2(f) on the exercise of this Warrant). For purposes of any such exercise, the determination
of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration
issuable in respect of one share of Common Stock in such Fundamental Transaction, and the Company shall apportion the Exercise Price among
the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration.
If holders of Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then
the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such
Fundamental Transaction. Notwithstanding anything to the contrary, in the event of a Fundamental Transaction, the Company or any Successor
Entity (as defined below) shall, at the Holder’s option, exercisable at any time concurrently with, or within 30 days after, the
consummation of the Fundamental Transaction (or, if later, the date of the public announcement of the applicable Fundamental Transaction),
purchase this Warrant from the Holder by paying to the Holder an amount of cash equal to the Black Scholes Value (as defined below) of
the remaining unexercised portion of this Warrant on the date of the consummation of such Fundamental Transaction; provided, however,
that, if the Fundamental Transaction is not within the Company’s control, including not approved by the Company’s Board of
Directors, the Holder shall only be entitled to receive from the Company or any Successor Entity the same type or form of consideration
(and in the same proportion), at the Black Scholes Value of the unexercised portion of this Warrant, that is being offered and paid to
the holders of Common Stock of the Company in connection with the Fundamental Transaction, whether that consideration be in the form of
cash, stock or any combination thereof, or whether the holders of Common Stock are given the choice to receive from among alternative
forms of consideration in connection with the Fundamental Transaction; provided, further, that if holders of Common Stock
of the Company are not offered or paid any consideration in such Fundamental Transaction, such holders of Common Stock will be deemed
to have received common stock of the Successor Entity (which Entity may be the Company following such Fundamental Transaction) in such
Fundamental Transaction. “Black Scholes Value” means the value of this Warrant based on the Black-Scholes Option Pricing
Model obtained from the “OV” function on Bloomberg determined as of the day of consummation of the applicable Fundamental
Transaction for pricing purposes and reflecting (A) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal
to the time between the date of the public announcement of the applicable contemplated Fundamental Transaction and the Termination Date,
(B) an expected volatility equal to the greater of (1) the 30 day volatility, (2) the 100 day volatility or (3) the 365 day volatility,
each of clauses (1)-(3) as obtained from the HVT function on Bloomberg (determined utilizing a 365 day annualization factor) as of the
Trading Day immediately following the public announcement of the applicable contemplated Fundamental Transaction, (C) the underlying price
per share used in such calculation shall be the highest VWAP during the period beginning on the Trading Day immediately preceding the
public announcement of the applicable contemplated Fundamental Transaction (or the consummation of the applicable Fundamental Transaction,
if earlier) and ending on the Trading Day of the Holder’s request pursuant to this Section 3(d) and (D) a remaining option time
equal to the time between the date of the public announcement of the applicable contemplated Fundamental Transaction and the Termination
Date and (E) a zero cost of borrow. The payment of the Black Scholes Value will be made by wire transfer of immediately available funds
(or such other consideration) within the later of (i) five Business Days of the Holder’s election and (ii) the date of consummation
of the Fundamental Transaction. The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not
the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant
and the other Transaction Documents in accordance with the provisions of this Section 3(d) pursuant to written agreements in form and
substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction
and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced
by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of
shares of capital stock of such Successor Entity (or its parent entity) equivalent to the shares of Common Stock acquirable and receivable
upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction,
and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative
value of the shares of Common Stock pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number
of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately
prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder.
Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall be added to the term “Company” under this
Warrant (so that from and after the occurrence or consummation of such Fundamental Transaction, each and every provision of this Warrant
and the other Transaction Documents referring to the “Company” shall refer instead to each of the Company and the Successor
Entity or Successor Entities, jointly and severally), and the Successor Entity or Successor Entities, jointly and severally with the Company,
may exercise every right and power of the Company prior thereto and the Successor Entity or Successor Entities shall assume all of the
obligations of the Company prior thereto under this Warrant and the other Transaction Documents with the same effect as if the Company
and such Successor Entity or Successor Entities, jointly and severally, had been named as the Company herein. For the avoidance of doubt,
the Holder shall be entitled to the benefits of the provisions of this Section 3(d) regardless of (i) whether the Company has sufficient
authorized shares of Common Stock for the issuance of Warrant Shares and/or (ii) whether a Fundamental Transaction occurs prior to the
Initial Issue Date.
(e) Calculations.
All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. For purposes
of this Section 3, the number of shares of Common Stock deemed to be issued and outstanding as of a given date shall be the sum of the
number of shares of Common Stock (excluding treasury shares, if any) issued and outstanding.
(f) Notice
to Holder.
(i) Adjustment
to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company shall promptly
deliver to the Holder by email a notice setting forth the Exercise Price after such adjustment and any resulting adjustment to the number
of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
(ii) Notice
to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on the Common
Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C) the Company shall
authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or purchase any shares of capital stock
of any class or of any rights, (D) the approval of any stockholders of the Company shall be required in connection with any reclassification
of the Common Stock, any consolidation or merger to which the Company (or any of its Subsidiaries) is a party, any sale or transfer of
all or substantially all of its assets, or any compulsory share exchange whereby the Common Stock is converted into other securities,
cash or property, or (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs
of the Company, then, in each case, the Company shall cause to be delivered by email to the Holder at its last email address as it shall
appear upon the Warrant Register of the Company, at least 20 calendar days prior to the applicable record or effective date hereinafter
specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution, redemption,
rights or warrants, or if a record is not to be taken, the date as of which the holders of the Common Stock of record to be entitled to
such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on which such reclassification, consolidation,
merger, sale, transfer or share exchange is expected to become effective or close, and the date as of which it is expected that holders
of the Common Stock of record shall be entitled to exchange their shares of the Common Stock for securities, cash or other property deliverable
upon such reclassification, consolidation, merger, sale, transfer or share exchange; provided that the failure to deliver such notice
or any defect therein or in the delivery thereof shall not affect the validity of the corporate action required to be specified in such
notice. To the extent that any notice provided in this Warrant constitutes, or contains, material, non-public information regarding the
Company or any of the Subsidiaries, the Company shall simultaneously file such notice with the Securities and Exchange Commission (the
“SEC”) pursuant to a Current Report on Form 8-K. The Holder shall remain entitled to exercise this Warrant during the
period commencing on the date of such notice to the effective date of the event triggering such notice except as may otherwise be expressly
set forth herein.
Section 4. Transfer
of Warrant.
(a) Transferability.
Subject to compliance with any applicable securities laws and the conditions set forth in Section 4(d) hereof, this Warrant and all rights
hereunder (including, without limitation, any registration rights) are transferable, in whole or in part, upon surrender of this Warrant
at the principal office of the Company or its designated agent, together with a written assignment of this Warrant substantially in the
form attached hereto duly executed by the Holder or its agent or attorney and funds sufficient to pay any transfer taxes payable upon
the making of such transfer. Upon such surrender and, if required, such payment, the Company shall execute and deliver a new Warrant or
Warrants in the name of the assignee or assignees, as applicable, and in the denomination or denominations specified in such instrument
of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant
shall promptly be cancelled. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender
this Warrant to the Company unless the Holder has assigned this Warrant in full, in which case, the Holder shall surrender this Warrant
to the Company within three (3) Trading Days of the date on which the Holder delivers an assignment form to the Company assigning this
Warrant in full. The Warrant, if properly assigned in accordance herewith, may be exercised by a new holder for the purchase of Warrant
Shares without having a new Warrant issued.
(b) New
Warrants. This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office of the Company,
together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed by the Holder or
its agent or attorney. Subject to compliance with Section 4(a), as to any transfer which may be involved in such division or combination,
the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided or combined in accordance
with such notice. All Warrants issued on transfers or exchanges shall be dated the initial issuance date of this Warrant and shall be
identical with this Warrant except as to the number of Warrant Shares issuable pursuant thereto.
(c) Warrant
Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the “Warrant
Register”), in the name of the record Holder hereof from time to time. The Company may deem and treat the registered Holder of this
Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and for all other purposes,
absent actual notice to the contrary.
(d) Transfer
Restrictions. If, at the time of the surrender of this Warrant in connection with any transfer of this Warrant, the transfer of this
Warrant shall not be either (i) registered pursuant to an effective registration statement under the Securities Act and under applicable
state securities or blue sky laws or (ii) eligible for resale without volume or manner-of-sale restrictions or current public information
requirements pursuant to Rule 144, the Company may require, as a condition of allowing such transfer, that the Holder or transferee of
this Warrant, as the case may be, provide to the Company an opinion of counsel selected by the Holder or transferee of this Warrant, as
the case may be, and reasonably acceptable to the Company, the form and substance of which opinion shall be reasonably satisfactory to
the Company, to the effect that such transfer does not require registration of this Warrant under the Securities Act.
(e) Representation
by the Holder. The Holder, by the acceptance hereof, represents and warrants that (i) it is an “accredited investor”
as defined in Regulation D promulgated under the Securities Act and (ii) it is acquiring this Warrant and, upon any exercise hereof,
will acquire the Warrant Shares issuable upon such exercise, for its own account and not with a view to or for distributing or reselling
such Warrant Shares or any part thereof in violation of the Securities Act or any applicable state securities law, except pursuant to
sales registered or exempted under the Securities Act.
Section 5. Miscellaneous.
(a) No
Rights as Stockholder Until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting rights, dividends
or other rights as a stockholder of the Company prior to the exercise hereof as set forth in Section 2(e)(i), except as expressly set
forth in Section 3. Without limiting any rights of a Holder to receive Warrant Shares on a “cashless exercise” pursuant to
Section 2(c) or to receive cash payments pursuant to Section 2(e)(i) and Section 2(e)(iv) herein, in no event shall the Company be required
to net cash settle an exercise of this Warrant.
(b) Loss,
Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably satisfactory
to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant Shares, and in case
of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant, shall not include
the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the Company will make
and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant or stock certificate.
(c) 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.
(d) Authorized
Shares.
The Company covenants that, during the period the Warrant is outstanding,
it will reserve from its authorized and unissued Common Stock a sufficient number of shares to provide for the issuance of the Warrant
Shares upon the exercise of any purchase rights under this Warrant. The Company further covenants that its issuance of this Warrant shall
constitute full authority to its officers who are charged with the duty of issuing the necessary Warrant Shares upon the exercise of the
purchase rights under this Warrant. The Company will take all such reasonable action as may be necessary to assure that such Warrant Shares
may be issued as provided herein without violation of any applicable law or regulation, or of any requirements of the Trading Market upon
which the Common Stock may be listed. The Company covenants that all Warrant Shares which may be issued upon the exercise of the purchase
rights represented by this Warrant will, upon exercise of the purchase rights represented by this Warrant and payment for such Warrant
Shares in accordance herewith, be duly authorized, validly issued, fully paid and nonassessable and free from all taxes, liens and charges
created by the Company in respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously with such
issue).
Except and to the extent as waived or consented to by the Holder, the
Company shall not by any action, including, without limitation, amending its certificate of incorporation or through any reorganization,
transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid
the observance or performance of any of the terms of this Warrant, but will at all times in good faith assist in the carrying out of all
such terms and in the taking of all such actions as may be necessary or appropriate to protect the rights of Holder as set forth in this
Warrant against impairment. Without limiting the generality of the foregoing, the Company will (i) not increase the par value of
any Warrant Shares above the amount payable therefor upon such exercise immediately prior to such increase in par value, (ii) take all
such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable Warrant
Shares upon the exercise of this Warrant and (iii) use commercially reasonable efforts to obtain all such authorizations, exemptions or
consents from any public regulatory body having jurisdiction thereof, as may be, necessary to enable the Company to perform its obligations
under this Warrant.
Before taking any action which would result in an adjustment in the
number of Warrant Shares for which this Warrant is exercisable or in the Exercise Price, the Company shall obtain all such authorizations
or exemptions thereof, or consents thereto, as may be necessary from any public regulatory body or bodies having jurisdiction thereof.
(e) Jurisdiction.
All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be determined in accordance
with the provisions of the Underwriting Agreement. In the event that any signature is delivered by electronic mail, or otherwise by electronic
transmission (including any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) evidencing
an intent to sign this Warrant, such electronic mail or other electronic transmission 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 signature page were an original.
Execution and delivery of this Warrant by electronic mail or other electronic transmission is legal, valid and binding for all purposes.
(f) Restrictions.
The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered, and the Holder does not
utilize cashless exercise, will have restrictions upon resale imposed by state and federal securities laws.
(g) Nonwaiver
and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall operate as
a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies. Without limiting any other provision of this
Warrant or the Underwriting Agreement, if the Company willfully and knowingly fails to comply with any provision of this Warrant, which
results in any material damages to the Holder, the Company shall pay to the Holder such amounts as shall be sufficient to cover any costs
and expenses including, but not limited to, reasonable attorneys’ fees, including those of appellate proceedings, incurred by the
Holder in collecting any amounts due pursuant hereto or in otherwise enforcing any of its rights, powers or remedies hereunder.
(h) Notices.
Any notice, request or other document required or permitted to be given or delivered to the Holder by the Company shall be delivered in
accordance with the notice provisions of the Underwriting Agreement.
(i) Limitation
of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant to purchase Warrant
Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of the Holder for the purchase
price of any Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company or by creditors of the
Company.
(j) Remedies.
The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be entitled to specific
performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to assert the defense in any
action for specific performance that a remedy at law would be adequate.
(k) Successors
and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall inure to the
benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns of the Holder.
The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall be enforceable
by the Holder or holder of Warrant Shares.
(l) Amendment.
This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company and the Holder.
(m) Severability.
Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Warrant.
(n) Headings.
The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed a part of this Warrant.
********************
(Signature Page Follows)
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
by its officer thereunto duly authorized as of the date first above indicated.
|
EOS ENERGY ENTERPRISES, INC. |
|
|
|
|
By: |
|
|
Name: |
Nathan Kroeker |
|
Title: |
Chief Financial Officer |
NOTICE OF EXERCISE
TO: EOS ENERGY ENTERPRISES, INC.
(1) The undersigned hereby elects to purchase Warrant
Shares of the Company pursuant to the terms of the attached Warrant (only if exercised in full), and tenders herewith payment of the exercise
price in full, together with all applicable transfer taxes, if any.
(2) Payment shall take the
form of (check applicable box):
☐
in lawful money of the United States; or
☐
if permitted the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection
2(c), to exercise this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise procedure
set forth in subsection 2(c).
(3) Please issue said Warrant
Shares in the name of the undersigned or in such other name as is specified below:
________________________________________
The Warrant Shares shall be delivered to the following DWAC Account
Number:
________________________________________
________________________________________
________________________________________
[SIGNATURE OF HOLDER]
Name of Investing Entity: ________________________________________________________________________
Signature of Authorized Signatory of Investing Entity: _________________________________________________
Name of Authorized Signatory: ___________________________________________________________________
Title of Authorized Signatory: ____________________________________________________________________
Date: _______________________________________________________________________________________
ASSIGNMENT FORM
(To assign the foregoing Warrant, execute this
form and supply required information. Do not use this form to purchase shares.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced
thereby are hereby assigned to
Name: |
(Please Print) |
Address: |
(Please Print) |
Phone Number: |
Email Address: |
Dated: ___________, ______ |
Holder’s Signature: |
Holder’s Address: |
Exhibit 4.1
COMMON STOCK PURCHASE WARRANT
EOS ENERGY ENTERPRISES, INC.
Warrant Shares: [______] |
Initial Issue Date: December 19, 2023 |
THIS COMMON STOCK PURCHASE
WARRANT (the “Warrant”) certifies that, for value received, [________] or its assigns (the “Holder”)
is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter set forth, at any time on or after
the date hereof (the “Initial Exercisability Date”) and on or prior to 5:00 p.m. (New York City time) on the date five
(5) years following the Initial Exercisability Date (the “Termination Date”) but not thereafter, to subscribe for and
purchase from Eos Energy Enterprises, Inc., a Delaware corporation (the “Company”), up to [________] shares (as subject
to adjustment hereunder, the “Warrant Shares”) of the Company’s common stock, $0.0001 par value per share (the
Common Stock).” The purchase price of one share of Common Stock under this Warrant shall be equal to the Exercise Price,
as defined in Section 2(b).
Section 1. Definitions.
Capitalized terms used and not otherwise defined herein shall have the meanings set forth in that certain Underwriting Agreement
(the “Underwriting Agreement”), dated December 14, 2023, among the Company, Cowen and Company, LLC, as
Representative of the several Underwriters.
Section 2. Exercise.
(a) Exercise
of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any time or times on
or after the Initial Exercisability Date and on or before the Termination Date by delivery to the Company of a duly executed PDF copy
submitted by e-mail (or e-mail attachment) of the Notice of Exercise in the form annexed hereto (the “Notice of Exercise”).
Within the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined
in Section 2(e)(i) herein) following the date of exercise as aforesaid, the Holder shall deliver the aggregate Exercise Price for the
shares specified in the applicable Notice of Exercise by wire transfer or cashier’s check drawn on a United States bank unless the
cashless exercise procedure specified in Section 2(c) below is specified in the applicable Notice of Exercise. No ink-original Notice
of Exercise shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise
be required. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to
the Company until the Holder has purchased all of the Warrant Shares available hereunder and the Warrant has been exercised in full, in
which case, the Holder shall surrender this Warrant to the Company for cancellation within three (3) Trading Days of the date on which
the final Notice of Exercise is delivered to the Company. Partial exercises of this Warrant resulting in purchases of a portion of the
total number of Warrant Shares available hereunder shall have the effect of lowering the outstanding number of Warrant Shares purchasable
hereunder in an amount equal to the applicable number of Warrant Shares purchased. The Holder and the Company shall maintain records showing
the number of Warrant Shares purchased and the date of such purchases. The Company shall deliver any objection to any Notice of Exercise
within one (1) Business Day of receipt of such notice. The Holder and any assignee, by acceptance of this Warrant, acknowledge and
agree that, by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant Shares hereunder, the
number of Warrant Shares available for purchase hereunder at any given time may be less than the amount stated on the face hereof.
(b) Exercise
Price. The exercise price per share of Common Stock under this Warrant shall be $1.60, subject to adjustment hereunder (the “Exercise
Price”).
(c) Cashless
Exercise. If at the time of exercise hereof there is no effective registration statement registering, or the prospectus contained
therein is not available for the issuance of the Warrant Shares to the Holder, then this Warrant may also be exercised, in whole or in
part, at such time by means of a “cashless exercise” in which the Holder shall be entitled to receive a number of Warrant
Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A), where:
| (A) = | as applicable: (i) the VWAP on the Trading Day immediately preceding the date of the applicable Notice
of Exercise if such Notice of Exercise is (1) both executed and delivered pursuant to Section 2(a) hereof on a day that is not a Trading
Day or (2) both executed and delivered pursuant to Section 2(a) hereof on a Trading Day prior to the opening of “regular trading
hours” (as defined in Rule 600(b) of Regulation NMS promulgated under the federal securities laws) on such Trading Day, (ii) at
the option of the Holder, either (y) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise or
(z) the Bid Price of the Common Stock on the principal Trading Market as reported by Bloomberg L.P. (“Bloomberg”) as
of the time of the Holder’s execution of the applicable Notice of Exercise if such Notice of Exercise is executed during “regular
trading hours” on a Trading Day and is delivered within two (2) hours thereafter (including until two (2) hours after the close
of “regular trading hours” on a Trading Day) pursuant to Section 2(a) hereof or (iii) the VWAP on the date of the applicable
Notice of Exercise if the date of such Notice of Exercise is a Trading Day and such Notice of Exercise is both executed and delivered
pursuant to Section 2(a) hereof after the close of “regular trading hours” on such Trading Day; |
| (B) = | the Exercise Price of this Warrant, as adjusted hereunder; and |
| (X) = | the number of Warrant Shares that would be issuable upon exercise of this Warrant in accordance with the
terms of this Warrant if such exercise were by means of a cash exercise rather than a cashless exercise. |
If Warrant Shares are issued
in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the Securities Act, the Warrant
Shares shall take on the characteristics of the Warrants being exercised, and the holding period of the Warrant Shares being issued may
be tacked on to the holding period of this Warrant. The Company agrees not to take any position contrary to this Section 2(c).
“Bid Price” means,
for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or quoted
on a Trading Market, the bid price of the Common Stock for the time in question (or the nearest preceding date) on the Trading Market
on which the Common Stock is then listed or quoted as reported by Bloomberg (based on a Trading Day from 9:30 a.m. (New York City time)
to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price of the Common Stock
for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not then listed or quoted for
trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on The Pink Open Market (or a similar organization or agency
succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported, or (d) in all other
cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good faith by the Purchasers
of a majority in interest of the Securities then outstanding and reasonably acceptable to the Company, the fees and expenses of which
shall be paid by the Company.
“Trading Day”
means, as applicable, (x) with respect to all price or trading volume determinations relating to the Common Stock, any day on which the
Common Stock is traded on the Nasdaq Capital Market, or, if the Nasdaq Capital Market is not the principal trading market for the Common
Stock, then on the principal securities exchange or securities market on which the Common Stock is then traded, provided that “Trading
Day” shall not include any day on which the Common Stock is scheduled to trade on such exchange or market for less than 4.5 hours
or any day that the Common Stock is suspended from trading during the final hour of trading on such exchange or market (or if such exchange
or market does not designate in advance the closing time of trading on such exchange or market, then during the hour ending at 4:00:00
p.m., New York time) unless such day is otherwise designated as a Trading Day in writing by the Holder or (y) with respect to all determinations
other than price determinations relating to the Common Stock, any day on which The New York Stock Exchange (or any successor thereto)
is open for trading of securities.
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or
quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg (based on a Trading Day from 9:30 a.m.
(New York City time) to 4:02 p.m. (New York City time)), (b) if the OTCQB Venture Market (“OTCQB”) or the OTCQX Best
Market (“OTCQX”) is not a Trading Market, the volume weighted average price of the Common Stock for such date (or the
nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not then listed or quoted for trading on OTCQB or
OTCQX and if prices for the Common Stock are then reported on the Pink Open Market (“Pink Market”) operated by the
OTC Markets, Inc. (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per
share of the Common Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an
independent appraiser selected in good faith by the Purchasers of a majority in interest of the Securities then outstanding and reasonably
acceptable to the Company, the fees and expenses of which shall be paid by the Company.
Notwithstanding anything herein
to the contrary, on the Termination Date, this Warrant shall be automatically exercised via cashless exercise pursuant to this Section
2(c).
(d) [Reserved.]
(e) Mechanics
of Exercise.
(i) Delivery
of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted by the Transfer
Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with The Depository Trust Company
through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company is then a participant in such system
and either (A) there is an effective registration statement permitting the issuance of the Warrant Shares to or resale of the Warrant
Shares by Holder or (B) this Warrant is being exercised via cashless exercise and the Warrant Shares are eligible for resale pursuant
to Rule 144 of the Securities Act, and otherwise by physical delivery of a certificate, registered in the Company’s share register
in the name of the Holder or its designee, for the number of Warrant Shares to which the Holder is entitled pursuant to such exercise
to the address specified by the Holder in the Notice of Exercise by the date that is the earliest of (i) two (2) Trading Days after the
delivery to the Company of the Notice of Exercise, (ii) one (1) Trading Day after delivery of the aggregate Exercise Price to the Company
and(iii) the number of Trading Days comprising the Standard Settlement Period after the delivery to the Company of the Notice of Exercise
(such date, the “Warrant Share Delivery Date”). Upon delivery of the Notice of Exercise, the Holder shall be deemed
for all corporate purposes to have become the holder of record of the Warrant Shares with respect to which this Warrant has been exercised,
irrespective of the date of delivery of the Warrant Shares, provided that payment of the aggregate Exercise Price (other than in the case
of a cashless exercise) is received within the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the
Standard Settlement Period following delivery of the Notice of Exercise. If the Company fails for any reason to deliver to the Holder
the Warrant Shares subject to a Notice of Exercise by the Warrant Share Delivery Date, the Company shall pay to the Holder, in cash, as
liquidated damages and not as a penalty, for each $1,000 of Warrant Shares subject to such exercise (based on the VWAP of the Common Stock
on the date of the applicable Notice of Exercise), $10 per Trading Day (increasing to $20 per Trading Day on the third Trading Day after
the Warrant Share Delivery Date) for each Trading Day after such Warrant Share Delivery Date until such Warrant Shares are delivered or
Holder rescinds such exercise. The Company agrees to maintain a transfer agent that is a participant in the FAST program so long as this
Warrant remains outstanding and exercisable. As used herein, “Standard Settlement Period” means the standard settlement period,
expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the Common Stock as in effect on
the date of delivery of the Notice of Exercise.
(ii) Delivery
of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of a Holder and
upon surrender of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the Holder a new Warrant evidencing
the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant shall in all other respects
be identical with this Warrant.
(iii) Rescission
Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant to Section 2(e)(i)
by the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise.
(iv) Compensation
for Buy-In on Failure to Timely Deliver Warrant Shares Upon Exercise. In addition to any other rights available to the Holder, if
the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with the provisions of Section
2(e)(i) above pursuant to an exercise on or before the Warrant Share Delivery Date, and if after such date the Holder is required by its
broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases, shares of Common
Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon such exercise
(a “Buy-In”), then the Company shall (A) pay in cash to the Holder the amount, if any, by which (x) the Holder’s
total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased exceeds (y) the amount obtained
by multiplying (1) the number of Warrant Shares that the Company was required to deliver to the Holder in connection with the exercise
at issue times (2) the price at which the sell order giving rise to such purchase obligation was executed, and (B) at the option of the
Holder, either reinstate the portion of the Warrant and equivalent number of Warrant Shares for which such exercise was not honored (in
which case such exercise shall be deemed rescinded) or deliver to the Holder the number of shares of Common Stock that would have been
issued had the Company timely complied with its exercise and delivery obligations hereunder. For example, if the Holder purchases Common
Stock having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted exercise of shares of Common Stock with
an aggregate sale price giving rise to such purchase obligation of $10,000, under clause (A) of the immediately preceding sentence the
Company shall be required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating the amounts payable
to the Holder in respect of the Buy-In and, upon request of the Company, evidence of the amount of such loss. Nothing herein shall limit
a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree
of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver shares of Common Stock
upon exercise of the Warrant as required pursuant to the terms hereof.
(v) No
Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this
Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company shall,
at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the
Exercise Price or round up to the next whole share.
(vi) Charges,
Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer tax or other incidental
expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the Company, and such Warrant
Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder; provided, however,
that, in the event that Warrant Shares are to be issued in a name other than the name of the Holder, this Warrant when surrendered for
exercise shall be accompanied by the Assignment Form attached hereto duly executed by the Holder and the Company may require, as a condition
thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto. The Company shall pay all Transfer Agent
fees required for same-day processing of any Notice of Exercise and all fees to the Depository Trust Company (or another established clearing
corporation performing similar functions) required for same-day electronic delivery of the Warrant Shares.
(vii) Closing
of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise of this Warrant,
pursuant to the terms hereof.
(f) Holder’s
Exercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the right to exercise
any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance after exercise
as set forth on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates, and any other Persons acting
as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)),
would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the
number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number
of shares of Common Stock issuable upon exercise of this Warrant with respect to which such determination is being made, but shall exclude
the number of shares of Common Stock which would be issuable upon (i) (i) exercise of the remaining, nonexercised portion of this
Warrant beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised
or nonconverted portion of any other securities of the Company (including, without limitation, any other Common Stock Equivalents) subject
to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its
Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 2(f), beneficial ownership
shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being
acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance with Section 13(d)
of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent
that the limitation contained in this Section 2(f) applies, the determination of whether this Warrant is exercisable (in relation to other
securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable
shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s determination
of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates and Attribution
Parties) and of which portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation, and the Company
shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any group status
as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated
thereunder. For purposes of this Section 2(f), in determining the number of outstanding shares of Common Stock, a Holder may rely on the
number of outstanding shares of Common Stock as reflected in (A) the Company’s most recent periodic or annual report filed with
the Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice by the Company
or the Transfer Agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the
Company shall within one (1) Trading Day confirm orally and in writing to the Holder the number of shares of Common Stock then outstanding.
In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of
securities of the Company, including this Warrant, by the Holder or its Affiliates or Attribution Parties since the date as of which such
number of outstanding shares of Common Stock was reported. The “Beneficial Ownership Limitation” shall be [4.99%/9.99%]
of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable
upon exercise of this Warrant. The Holder, upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions
of this Section 2(f), provided that the Beneficial Ownership Limitation in no event exceeds 9.99% of the number of shares of the Common
Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon exercise of this Warrant held by the
Holder and the provisions of this Section 2(f) shall continue to apply. Any increase in the Beneficial Ownership Limitation will not be
effective until the 61st day after such notice is delivered to the Company. The provisions of this paragraph shall be construed and implemented
in a manner otherwise than in strict conformity with the terms of this Section 2(f) to correct this paragraph (or any portion hereof)
which may be defective or inconsistent with the intended Beneficial Ownership Limitation herein contained or to make changes or supplements
necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor
holder of this Warrant.
Section 3. Certain
Adjustments.
(a) Stock
Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or otherwise makes
a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable in shares of
Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company upon exercise of this
Warrant), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of reverse
stock split) outstanding shares of Common Stock into a smaller number of shares, or (iv) issues by reclassification of shares of the Common
Stock any shares of capital stock of the Company, then in each case the Exercise Price shall be multiplied by a fraction of which the
numerator shall be the number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately before such event
and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event, and the number of
shares issuable upon exercise of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this Warrant
shall remain unchanged. Any adjustment made pursuant to this Section 3(a) shall become effective immediately after the record date for
the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the effective
date in the case of a subdivision, combination or re-classification.
(b) Subsequent
Rights Offerings. In addition to any adjustments pursuant to Section 3(a) above, if at any time the Company grants, issues or sells
any Common Stock Equivalents or rights to purchase stock, warrants, securities or other property pro rata to the record holders of any
class of shares of Common Stock (the “Purchase Rights”), then the Holder will be entitled to acquire, upon the terms
applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the number
of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise hereof) immediately
before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the
date as of which the record holders of shares of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights.
“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.
(c) Pro
Rata Distributions. During such time as this Warrant is outstanding, if the Company shall declare or make any dividend or other distribution
of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital or otherwise (including,
without limitation, any distribution of cash, stock or other securities, property or options by way of a dividend, spin off, reclassification,
corporate rearrangement, scheme of arrangement or other similar transaction (a “Distribution”), at any time after the
issuance of this Warrant, then, in each such case, the Holder shall be entitled to participate in such Distribution to the same extent
that the Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable upon complete exercise
of this Warrant (without regard to any limitations on exercise hereof) immediately before the date of which a record is taken for such
Distribution, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined for
the participation in such Distribution. To the extent that this Warrant has not been partially or completely exercised at the time of
such Distribution, such portion of the Distribution shall be held in abeyance for the benefit of the Holder until the Holder has exercised
this Warrant.
(d) Fundamental
Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions
effects any merger or consolidation of the Company with or into another Person, (ii) the Company or any subsidiary, directly or indirectly,
effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one
or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company
or another Person) is completed pursuant to which holders of Common Stock are permitted to sell, tender or exchange their shares for other
securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Common Stock or 50% or more of the
voting power of the common equity of the Company, (iv) the Company, directly or indirectly, in one or more related transactions effects
any reclassification, reorganization or recapitalization of the Common Stock or any compulsory share exchange pursuant to which the Common
Stock is effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in
one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation,
a reorganization, recapitalization, spin-off, merger or scheme of arrangement) with another Person or group of Persons whereby such other
Person or group acquires 50% or more of the outstanding shares of Common Stock or 50% or more of the voting power of the common equity
of the Company (each a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall
have the right to receive, for each Warrant Share that would have been issuable upon such exercise immediately prior to the occurrence
of such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(f) on the exercise of this
Warrant), the number of shares of Common Stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation,
and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction
by a holder of the number of shares of Common Stock for which this Warrant is exercisable immediately prior to such Fundamental Transaction
(without regard to any limitation in Section 2(f) on the exercise of this Warrant). For purposes of any such exercise, the determination
of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration
issuable in respect of one share of Common Stock in such Fundamental Transaction, and the Company shall apportion the Exercise Price among
the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration.
If holders of Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then
the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such
Fundamental Transaction. Notwithstanding anything to the contrary, in the event of a Fundamental Transaction, the Company or any Successor
Entity (as defined below) shall, at the Holder’s option, exercisable at any time concurrently with, or within 30 days after, the
consummation of the Fundamental Transaction (or, if later, the date of the public announcement of the applicable Fundamental Transaction),
purchase this Warrant from the Holder by paying to the Holder an amount of cash equal to the Black Scholes Value (as defined below) of
the remaining unexercised portion of this Warrant on the date of the consummation of such Fundamental Transaction; provided, however,
that, if the Fundamental Transaction is not within the Company’s control, including not approved by the Company’s Board of
Directors, the Holder shall only be entitled to receive from the Company or any Successor Entity the same type or form of consideration
(and in the same proportion), at the Black Scholes Value of the unexercised portion of this Warrant, that is being offered and paid to
the holders of Common Stock of the Company in connection with the Fundamental Transaction, whether that consideration be in the form of
cash, stock or any combination thereof, or whether the holders of Common Stock are given the choice to receive from among alternative
forms of consideration in connection with the Fundamental Transaction; provided, further, that if holders of Common Stock
of the Company are not offered or paid any consideration in such Fundamental Transaction, such holders of Common Stock will be deemed
to have received common stock of the Successor Entity (which Entity may be the Company following such Fundamental Transaction) in such
Fundamental Transaction. “Black Scholes Value” means the value of this Warrant based on the Black-Scholes Option Pricing
Model obtained from the “OV” function on Bloomberg determined as of the day of consummation of the applicable Fundamental
Transaction for pricing purposes and reflecting (A) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal
to the time between the date of the public announcement of the applicable contemplated Fundamental Transaction and the Termination Date,
(B) an expected volatility equal to the greater of (1) the 30 day volatility, (2) the 100 day volatility or (3) the 365 day volatility,
each of clauses (1)-(3) as obtained from the HVT function on Bloomberg (determined utilizing a 365 day annualization factor) as of the
Trading Day immediately following the public announcement of the applicable contemplated Fundamental Transaction, (C) the underlying price
per share used in such calculation shall be the highest VWAP during the period beginning on the Trading Day immediately preceding the
public announcement of the applicable contemplated Fundamental Transaction (or the consummation of the applicable Fundamental Transaction,
if earlier) and ending on the Trading Day of the Holder’s request pursuant to this Section 3(d) and (D) a remaining option time
equal to the time between the date of the public announcement of the applicable contemplated Fundamental Transaction and the Termination
Date and (E) a zero cost of borrow. The payment of the Black Scholes Value will be made by wire transfer of immediately available funds
(or such other consideration) within the later of (i) five Business Days of the Holder’s election and (ii) the date of consummation
of the Fundamental Transaction. The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not
the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant
and the other Transaction Documents in accordance with the provisions of this Section 3(d) pursuant to written agreements in form and
substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction
and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced
by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of
shares of capital stock of such Successor Entity (or its parent entity) equivalent to the shares of Common Stock acquirable and receivable
upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction,
and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative
value of the shares of Common Stock pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number
of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately
prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder.
Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall be added to the term “Company” under this
Warrant (so that from and after the occurrence or consummation of such Fundamental Transaction, each and every provision of this Warrant
and the other Transaction Documents referring to the “Company” shall refer instead to each of the Company and the Successor
Entity or Successor Entities, jointly and severally), and the Successor Entity or Successor Entities, jointly and severally with the Company,
may exercise every right and power of the Company prior thereto and the Successor Entity or Successor Entities shall assume all of the
obligations of the Company prior thereto under this Warrant and the other Transaction Documents with the same effect as if the Company
and such Successor Entity or Successor Entities, jointly and severally, had been named as the Company herein. For the avoidance of doubt,
the Holder shall be entitled to the benefits of the provisions of this Section 3(d) regardless of (i) whether the Company has sufficient
authorized shares of Common Stock for the issuance of Warrant Shares and/or (ii) whether a Fundamental Transaction occurs prior to the
Initial Issue Date.
(e) Calculations.
All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. For purposes
of this Section 3, the number of shares of Common Stock deemed to be issued and outstanding as of a given date shall be the sum of the
number of shares of Common Stock (excluding treasury shares, if any) issued and outstanding.
(f) Notice
to Holder.
(i) Adjustment
to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company shall promptly
deliver to the Holder by email a notice setting forth the Exercise Price after such adjustment and any resulting adjustment to the number
of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
(ii) Notice to
Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on the Common
Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C) the Company shall
authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or purchase any shares of capital stock
of any class or of any rights, (D) the approval of any stockholders of the Company shall be required in connection with any reclassification
of the Common Stock, any consolidation or merger to which the Company (or any of its Subsidiaries) is a party, any sale or transfer of
all or substantially all of its assets, or any compulsory share exchange whereby the Common Stock is converted into other securities,
cash or property, or (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs
of the Company, then, in each case, the Company shall cause to be delivered by email to the Holder at its last email address as it shall
appear upon the Warrant Register of the Company, at least 20 calendar days prior to the applicable record or effective date hereinafter
specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution, redemption,
rights or warrants, or if a record is not to be taken, the date as of which the holders of the Common Stock of record to be entitled
to such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on which such reclassification,
consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the date as of which it is expected
that holders of the Common Stock of record shall be entitled to exchange their shares of the Common Stock for securities, cash or other
property deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange; provided that the failure to
deliver such notice or any defect therein or in the delivery thereof shall not affect the validity of the corporate action required to
be specified in such notice. To the extent that any notice provided in this Warrant constitutes, or contains, material, non-public information
regarding the Company or any of the Subsidiaries, the Company shall simultaneously file such notice with the Securities and Exchange
Commission (the “SEC”) pursuant to a Current Report on Form 8-K. The Holder shall remain entitled to exercise this Warrant
during the period commencing on the date of such notice to the effective date of the event triggering such notice except as may otherwise
be expressly set forth herein.
Section 4. Transfer
of Warrant.
(a) Transferability.
Subject to compliance with any applicable securities laws and the conditions set forth in Section 4(d) hereof, this Warrant and all rights
hereunder (including, without limitation, any registration rights) are transferable, in whole or in part, upon surrender of this Warrant
at the principal office of the Company or its designated agent, together with a written assignment of this Warrant substantially in the
form attached hereto duly executed by the Holder or its agent or attorney and funds sufficient to pay any transfer taxes payable upon
the making of such transfer. Upon such surrender and, if required, such payment, the Company shall execute and deliver a new Warrant or
Warrants in the name of the assignee or assignees, as applicable, and in the denomination or denominations specified in such instrument
of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant
shall promptly be cancelled. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender
this Warrant to the Company unless the Holder has assigned this Warrant in full, in which case, the Holder shall surrender this Warrant
to the Company within three (3) Trading Days of the date on which the Holder delivers an assignment form to the Company assigning this
Warrant in full. The Warrant, if properly assigned in accordance herewith, may be exercised by a new holder for the purchase of Warrant
Shares without having a new Warrant issued.
(b) New
Warrants. This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office of the Company,
together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed by the Holder or
its agent or attorney. Subject to compliance with Section 4(a), as to any transfer which may be involved in such division or combination,
the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided or combined in accordance
with such notice. All Warrants issued on transfers or exchanges shall be dated the initial issuance date of this Warrant and shall be
identical with this Warrant except as to the number of Warrant Shares issuable pursuant thereto.
(c) Warrant
Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the “Warrant
Register”), in the name of the record Holder hereof from time to time. The Company may deem and treat the registered Holder of this
Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and for all other purposes,
absent actual notice to the contrary.
(d) Transfer
Restrictions. If, at the time of the surrender of this Warrant in connection with any transfer of this Warrant, the transfer of this
Warrant shall not be either (i) registered pursuant to an effective registration statement under the Securities Act and under applicable
state securities or blue sky laws or (ii) eligible for resale without volume or manner-of-sale restrictions or current public information
requirements pursuant to Rule 144, the Company may require, as a condition of allowing such transfer, that the Holder or transferee of
this Warrant, as the case may be, provide to the Company an opinion of counsel selected by the Holder or transferee of this Warrant, as
the case may be, and reasonably acceptable to the Company, the form and substance of which opinion shall be reasonably satisfactory to
the Company, to the effect that such transfer does not require registration of this Warrant under the Securities Act.
(e) Representation
by the Holder. The Holder, by the acceptance hereof, represents and warrants that (i) it is an “accredited investor”
as defined in Regulation D promulgated under the Securities Act and (ii) it is acquiring this Warrant and, upon any exercise hereof,
will acquire the Warrant Shares issuable upon such exercise, for its own account and not with a view to or for distributing or reselling
such Warrant Shares or any part thereof in violation of the Securities Act or any applicable state securities law, except pursuant to
sales registered or exempted under the Securities Act.
Section 5. Miscellaneous.
(a) No
Rights as Stockholder Until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting rights, dividends
or other rights as a stockholder of the Company prior to the exercise hereof as set forth in Section 2(e)(i), except as expressly set
forth in Section 3. Without limiting any rights of a Holder to receive Warrant Shares on a “cashless exercise” pursuant to
Section 2(c) or to receive cash payments pursuant to Section 2(e)(i) and Section 2(e)(iv) herein, in no event shall the Company be required
to net cash settle an exercise of this Warrant.
(b) Loss,
Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably satisfactory
to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant Shares, and in case
of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant, shall not include
the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the Company will make
and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant or stock certificate.
(c) 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.
(d) Authorized
Shares.
The Company covenants that,
during the period the Warrant is outstanding, it will reserve from its authorized and unissued Common Stock a sufficient number of shares
to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights under this Warrant. The Company further covenants
that its issuance of this Warrant shall constitute full authority to its officers who are charged with the duty of issuing the necessary
Warrant Shares upon the exercise of the purchase rights under this Warrant. The Company will take all such reasonable action as may be
necessary to assure that such Warrant Shares may be issued as provided herein without violation of any applicable law or regulation, or
of any requirements of the Trading Market upon which the Common Stock may be listed. The Company covenants that all Warrant Shares which
may be issued upon the exercise of the purchase rights represented by this Warrant will, upon exercise of the purchase rights represented
by this Warrant and payment for such Warrant Shares in accordance herewith, be duly authorized, validly issued, fully paid and nonassessable
and free from all taxes, liens and charges created by the Company in respect of the issue thereof (other than taxes in respect of any
transfer occurring contemporaneously with such issue).
Except and to the extent as
waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending its certificate of
incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any
other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all times
in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary or appropriate to
protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality of the foregoing, the Company
will (i) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise immediately prior
to such increase in par value, (ii) take all such action as may be necessary or appropriate in order that the Company may validly and
legally issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant and (iii) use commercially reasonable efforts
to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof, as may be, necessary
to enable the Company to perform its obligations under this Warrant.
Before taking any action which
would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the Exercise Price, the Company
shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from any public regulatory body or
bodies having jurisdiction thereof.
(e) Jurisdiction.
All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be determined in accordance
with the provisions of the Underwriting Agreement. In the event that any signature is delivered by electronic mail, or otherwise by electronic
transmission (including any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) evidencing
an intent to sign this Warrant, such electronic mail or other electronic transmission 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 signature page were an original.
Execution and delivery of this Warrant by electronic mail or other electronic transmission is legal, valid and binding for all purposes.
(f) Restrictions.
The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered, and the Holder does not
utilize cashless exercise, will have restrictions upon resale imposed by state and federal securities laws.
(g) Nonwaiver
and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall operate as
a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies. Without limiting any other provision of this
Warrant or the Underwriting Agreement, if the Company willfully and knowingly fails to comply with any provision of this Warrant, which
results in any material damages to the Holder, the Company shall pay to the Holder such amounts as shall be sufficient to cover any costs
and expenses including, but not limited to, reasonable attorneys’ fees, including those of appellate proceedings, incurred by the
Holder in collecting any amounts due pursuant hereto or in otherwise enforcing any of its rights, powers or remedies hereunder.
(h) Notices.
Any notice, request or other document required or permitted to be given or delivered to the Holder by the Company shall be delivered in
accordance with the notice provisions of the Underwriting Agreement.
(i) Limitation
of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant to purchase Warrant
Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of the Holder for the purchase
price of any Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company or by creditors of the
Company.
(j) Remedies.
The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be entitled to specific
performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to assert the defense in any
action for specific performance that a remedy at law would be adequate.
(k) Successors
and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall inure to the
benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns of the Holder.
The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall be enforceable
by the Holder or holder of Warrant Shares.
(l) Amendment.
This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company and the Holder.
(m) Severability.
Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Warrant.
(n) Headings.
The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed a part of this Warrant.
********************
(Signature Page Follows)
IN WITNESS WHEREOF, the Company
has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above indicated.
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EOS ENERGY ENTERPRISES, INC. |
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By: |
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Name: |
Nathan Kroeker |
|
|
Title: |
Chief Financial Officer |
NOTICE OF EXERCISE
TO: |
EOS ENERGY ENTERPRISES, INC. |
(1) The undersigned
hereby elects to purchase Warrant Shares of the Company pursuant to the terms of the attached Warrant (only if exercised
in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2) Payment
shall take the form of (check applicable box):
☐ in lawful money of the United
States; or
☐
if permitted the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection
2(c), to exercise this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise procedure
set forth in subsection 2(c).
(3) Please
issue said Warrant Shares in the name of the undersigned or in such other name as is specified below:
________________________________________
The Warrant Shares shall be
delivered to the following DWAC Account Number:
________________________________________
________________________________________
________________________________________
[SIGNATURE OF HOLDER]
Name of Investing Entity: ____________________________________________________________
Signature of Authorized Signatory of Investing Entity: ______________________________________
Name of Authorized Signatory:________________________________________________________
Title of Authorized Signatory: _________________________________________________________
Date: _____________________________________________________________________________
ASSIGNMENT FORM
(To assign the foregoing Warrant, execute this form and supply required
information. Do not use this form to purchase shares.)
FOR VALUE RECEIVED, the foregoing
Warrant and all rights evidenced thereby are hereby assigned to
Name: |
(Please Print) |
Address: |
(Please Print) |
Phone Number: |
Email Address: |
Dated: _____________, _____ |
Holder’s Signature: |
Holder’s Address: |
14
Exhibit 5.1
December 14, 2023
Eos Energy Enterprises, Inc.
3920 Park Avenue
Edison, NJ 08820
Ladies and Gentlemen:
We have acted as counsel to Eos Energy Enterprises,
Inc., a Delaware corporation (the “Company”), in connection with the filing with the Securities and Exchange
Commission (the “Commission”) pursuant to Rule 424(b) under the Securities Act of 1933, as amended (the “Act”),
of the Company’s prospectus supplement, dated December 14, 2023 (the “Prospectus Supplement”), forming
part of the registration statement on Form S-3, initially filed by the Company with the Commission on December 1, 2023, and declared effective
on December 10, 2023 (the “Registration Statement”). The Prospectus Supplement relates to the proposed sale
of 34,482,759 shares (the “Shares”) of the Company’s common stock, par value $0.0001 per share (the “Common
Stock”), and 34,482,759 warrants (the “Warrants”) to purchase up to an aggregate of 34,482,759
shares of Common Stock (the “Warrant Shares”), pursuant to that certain Underwriting Agreement, dated December
14, 2023 (the “Underwriting Agreement”), by and between the Company and Cowen and Company, LLC and Stifel, Nicolaus & Company, Incorporated as representatives
of the several underwriters named in Schedule A thereto (in such capacity, the “Representatives”).
For purposes of the opinions we express below, we
have examined originals, or copies certified or otherwise identified, of (i) the Third Amended and Restated Certificate of Incorporation
(the “Certificate of Incorporation”) and the Amended and Restated Bylaws (the “Bylaws”)
of the Company, each as amended and/or restated as of the date hereof; (ii) certain resolutions of the Board of Directors of the Company
approving the filing of the Registration Statement and Base Prospectus (as defined below) and certain other matters set forth therein;
(iii) certain resolutions of the pricing committee of the Board of Directors of the Company related to the filing of the Prospectus Supplement,
the authorization and issuance of the Shares, the Warrants and related matters; (iv) the Registration Statement and all exhibits thereto;
(v) the Prospectus Supplement and the prospectus included in the Registration Statement dated December 11, 2023 (the “Base
Prospectus” and together with the Prospectus Supplement, the “Prospectus”); (vi) the Underwriting
Agreement; (vii) a certificate executed by an officer of the Company, dated as of the date hereof; (viii) the order of the Court of Chancery
for the State of Delaware issued on February 27, 2023 regarding the Section 205 petition filed with the Court of Chancery for the State
of Delaware on February 10, 2023 and (ix) such other corporate records of the Company, as we have deemed necessary or appropriate for
the purposes of the opinions hereafter expressed.
As to questions of fact material to the opinions expressed
below, we have, without independent verification of their accuracy, relied to the extent we deem reasonably appropriate upon the representations
and warranties of the Company contained in such documents, records, certificates, instruments or representations furnished or made available
to us by the Company.
In making the foregoing examination, we have assumed
(i) the genuineness of all signatures, (ii) the authenticity of all documents submitted to us as originals, (iii) the conformity to original
documents of all documents submitted to us as certified or photostatic copies, (iv) that all agreements or instruments we have examined
are the valid, binding and enforceable obligations of the parties thereto, and (v) that all factual information on which we have relied
was accurate and complete.
We have also assumed that, at the time of the issuance
of the Shares, the Warrants, and the Warrant Shares: (i) the resolutions of the Board of Directors of the Company and the pricing committee
of the Board of Directors of the Company referred to above will not have been modified or rescinded, (ii) the Company will receive consideration
for the issuance of the Shares and the Warrants as set forth in the Underwriting Agreement, (iii) the issuance of the Warrant Shares pursuant
to the Warrants which consideration shall be at least equal to the par value of the Common Stock and (iv) all requirements of the General
Corporation Law of the State of Delaware (the “DGCL”), the Certificate of Incorporation and the Bylaws will
be complied with when the Shares, the Warrants and the Warrant Shares are issued.
Based on the foregoing, and subject to the qualifications,
assumptions and limitations stated herein, we are of the opinion that:
| 1. | The Shares, upon payment and delivery in accordance with the Underwriting Agreement, will be validly issued,
fully paid and non-assessable; |
| 2. | The Warrants, upon payment and delivery in accordance with the Underwriting Agreement, will be valid and
binding obligations of the Company and are enforceable against the Company in accordance with their terms; and |
| 3. | The Warrant Shares, when issued and delivered upon exercise of the Warrants, will be validly issued, fully
paid and non-assessable. |
The opinions in opinion paragraph 2 above are subject
to (i) the effect of any applicable bankruptcy, insolvency, reorganization, moratorium, rearrangement, liquidation, conservatorship or
other similar laws now or hereafter in effect relating to or affecting the rights of creditors generally, (ii) provisions of applicable
law pertaining to the voidability of preferential or fraudulent transfers and conveyances and (iii) the fact that the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
We hereby consent to the filing of this opinion as
Exhibit 5.1 to the Company’s Current Report on Form 8-K to be filed with the Commission. We further consent to the reference to
our firm under the caption “Legal Matters” in the Prospectus on the date hereof constituting a part of the Registration Statement.
In giving this consent, we are not admitting that we are within the category of persons whose consent is required under Section 7 of the
Act or the rules and regulations of the Commission thereunder. This opinion is given as of the date hereof and we assume no obligation
to update or supplement such opinion after the date hereof to reflect any facts or circumstances that may thereafter come to our attention
or any changes that may thereafter occur. The opinions expressed herein are limited exclusively to the DGCL and the laws of the State
of New York, in each case as in effect on the date hereof and we have not considered, and express no opinion on, any other laws or the
laws of any other jurisdiction.
|
Very truly yours, |
|
|
|
/s/ Haynes and Boone, LLP |
|
|
|
HAYNES AND BOONE, LLP |
Exhibit 99.1
Eos Energy Announces Launch of Proposed $40M
Public Offering
December 14, 2023
EDISON, N.J., Dec. 14, 2023 (GLOBE NEWSWIRE) —
Eos Energy Enterprises, Inc. (NASDAQ: EOSE) (“Eos” or the “Company”), a leading provider of safe, scalable,
efficient, and sustainable zinc-based long duration energy storage systems, today announced a proposed underwritten public
offering in which it intends to offer and sell (i) shares of its common stock and (ii) accompanying common warrants to purchase shares
of common stock. All of the shares of common stock and accompanying common warrants are being offered by Eos. The offering is subject
to market and other conditions, and there can be no assurance as to whether or when the offering may be completed, or as to the actual
size or terms of the offering.
TD Cowen and Stifel are acting as joint bookrunning
managers in the proposed offering.
The securities
are being offered by Eos pursuant to a registration statement on Form S-3 previously filed and declared effective by the Securities
and Exchange Commission (“SEC”). A preliminary prospectus supplement and accompanying base prospectus relating
to and describing the terms of the proposed offering will be filed with the SEC. Copies of the preliminary prospectus supplement
and accompanying base prospectus may also be obtained, when available, from: Cowen and Company, LLC, 599 Lexington Avenue, New
York, NY 10022, by email at Prospectus_ECM@cowen.com or by telephone at (833) 297-2926; or Stifel, Nicolaus & Company, Incorporated,
Attention: Prospectus Department, One Montgomery Street, Suite 3700, San Francisco, CA 94104, by telephone at (415) 364-2720 or by email
at syndprospectus@stifel.com. Electronic copies of the preliminary prospectus supplement and accompanying prospectus will also be available
on the website of the SEC at http://www.sec.gov.
This press release does not constitute an offer
to sell or the solicitation of an offer to buy the securities, nor shall there be any sale of the securities in any state or other jurisdiction
in which such offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of such
state or other jurisdiction.
About Eos Energy Enterprises
Eos Energy Enterprises is a leading provider of
safe, scalable, and sustainable zinc-based battery storage systems. With a mission to deliver energy storage solutions that are efficient,
reliable, and environmentally friendly, Eos is at the forefront of revolutionizing the global energy storage landscape. Eos’ pioneering
technology offers a cost-effective and scalable alternative to other stationary storage systems, enabling a clean energy future with improved
grid reliability and resilience.
Forward Looking Statements
Except for the historical information contained
herein, the matters set forth in this press release are forward-looking statements within the meaning of the “safe harbor” provisions
of the Private Securities Litigation Reform Act of 1995. Forward-looking statements include, but are not limited to, statements regarding
the completion of the proposed offering, the size of the offering and the anticipated gross proceeds of the offering, or other characterizations
of future events or circumstances, including any underlying assumptions. The words “anticipate,” “believe,” “continue,”
“could,” “estimate,” “expect,” “intends,” “may,” “might,” “plan,”
“possible,” “potential,” “predict,” “project,” “should,” “would” and similar
expressions may identify forward-looking statements, but the absence of these words does not mean that a statement is not forward-looking.
Forward-looking statements are based on our management’s beliefs, as well as assumptions made by, and information currently available
to, them. Because such statements are based on expectations as to future financial and operating results and are not statements of fact,
actual results may differ materially from those projected.
Factors which may cause actual results to differ
materially from current expectations include, but are not limited to: risks and uncertainties related to market and other conditions and
the satisfaction of customary closing conditions related to the proposed public offering; the anticipated size of the offering and use
of the proceeds of the offering which could change as a result of market conditions or for other reasons; changes adversely affecting
the business in which we are engaged; our ability to forecast trends accurately; our ability to generate cash, service indebtedness and
incur additional indebtedness; our ability to raise financing in the future; our customer’s ability to secure project financing;
the amount of final tax credits available to our customers or to Eos Energy Enterprises, Inc. pursuant to the Inflation Reduction Act;
uncertainties around our ability to secure conditional commitment in a timely manner or at all, or final approval of a loan from the Department
of Energy, the Loan Programs Office, or the timing of funding and the final size of any loan if approved; the possibility of a government
shutdown while we remain in the due diligence phase with the U.S. Department of Energy Loan Programs Office or while we await notice of
a decision regarding the issuance of a loan from the Department Energy Loan Programs Office; our ability to develop efficient manufacturing
processes to scale and to forecast related costs and efficiencies accurately; fluctuations in our revenue and operating results; competition
from existing or new competitors; the failure to convert firm order backlog and pipeline to revenue; risks associated with security breaches
in our information technology systems; risks related to legal proceedings or claims; risks associated with evolving energy policies in
the United States and other countries and the potential costs of regulatory compliance; risks associated with changes to U.S. trade environment;
risks resulting from the impact of global pandemics, including the novel coronavirus, Covid-19; our ability to maintain the listing of
our shares of common stock on NASDAQ; our ability to grow our business and manage growth profitably, maintain relationships with customers
and suppliers and retain our management and key employees; risks related to adverse changes in general economic conditions, including
inflationary pressures and increased interest rates; risk from supply chain disruptions and other impacts of geopolitical conflict; changes
in applicable laws or regulations; and other risks and uncertainties. The forward-looking statements contained in this press release are
also subject to additional risks, uncertainties, and factors, including those more fully described in the Company’s most recent
filings with the Securities and Exchange Commission, including the Company’s most recent Annual Report on Form 10-K and subsequent
reports on Forms 10-Q and 8-K, including those under the heading “Risk Factors” therein, and other factors identified in Eos’s
prior and future SEC filings with the SEC, available at www.sec.gov.
Further information on potential risks that could
affect actual results will be included in the subsequent periodic and current reports and other filings that the Company makes with the
Securities and Exchange Commission from time to time. Moreover, the Company operates in a very competitive and rapidly changing environment,
and new risks and uncertainties may emerge that could have an impact on the forward-looking statements contained in this press release.
Forward-looking statements speak only as of the
date they are made. Readers are cautioned not to put undue reliance on forward-looking statements, and, except as required by law, the
Company assumes no obligation and does not intend to update or revise these forward-looking statements, whether as a result of new information,
future events, or otherwise.
Contacts |
|
|
|
|
|
Investors: |
ir@eose.com |
|
Media: |
media@eose.com |
|
Exhibit 99.2
Eos Energy Announces Pricing of $50 Million
Public Offering
December 15, 2023
EDISON, N.J., Dec. 14, 2023 (GLOBE NEWSWIRE) —
Eos Energy Enterprises, Inc. (NASDAQ: EOSE) (“Eos” or the “Company”), a leading provider of safe, scalable,
efficient, and sustainable zinc-based long duration energy storage systems, today announced the pricing of an underwritten
public offering of (i) 34,482,759 shares of its common stock and (ii) accompanying common warrants to purchase one share of common stock
for each share of common stock sold. The combined offering price to the public of each share of common stock and accompanying one common
warrant is $1.45. The accompanying common warrants have an exercise price of $1.60 per share, are exercisable immediately, and
will expire five years following the date of issuance. All of the shares of common stock and accompanying common warrants are being offered
by Eos. Before deducting the underwriting discounts and commissions and other offering expenses, Eos expects to receive total gross proceeds
of approximately $50 million. The offering is expected to close on or about December 19, 2023, subject to the satisfaction of customary
closing conditions
TD Cowen and Stifel are acting as joint bookrunning
managers in the offering.
Eos intends to use the net proceeds from the offering
for general corporate purposes, including working capital and capital expenditures.
The securities
are being offered by Eos pursuant to a registration statement on Form S-3 previously filed and declared effective by the Securities
and Exchange Commission (“SEC”). The offering is being made only by means of a prospectus, consisting of
a prospectus supplement and an accompanying prospectus. A preliminary prospectus supplement relating to and describing the terms of the
offering was filed on December 14, 2023. A final prospectus supplement and accompanying prospectus relating to this offering will be filed
with the SEC. Copies of the preliminary prospectus supplement and accompanying base prospectus may
also be obtained, when available, from: Cowen and Company, LLC, 599 Lexington Avenue, New York, NY 10022, by email at Prospectus_ECM@cowen.com
or by telephone at (833) 297-2926; or Stifel, Nicolaus & Company, Incorporated, Attention: Prospectus Department, One Montgomery Street,
Suite 3700, San Francisco, CA 94104, by telephone at (415) 364-2720 or by email at syndprospectus@stifel.com. Electronic copies of the
preliminary prospectus supplement and accompanying prospectus will also be available on the website of the SEC at http://www.sec.gov.
This press release does not constitute an offer
to sell or the solicitation of an offer to buy the securities, nor shall there be any sale of the securities in any state or other jurisdiction
in which such offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of such
state or other jurisdiction.
About Eos Energy Enterprises
Eos Energy Enterprises is a leading provider of
safe, scalable, and sustainable zinc-based battery storage systems. With a mission to deliver energy storage solutions that are efficient,
reliable, and environmentally friendly, Eos is at the forefront of revolutionizing the global energy storage landscape. Eos’ pioneering
technology offers a cost-effective and scalable alternative to other stationary storage systems, enabling a clean energy future with improved
grid reliability and resilience.
Forward Looking Statements
Except for the historical information contained
herein, the matters set forth in this press release are forward-looking statements within the meaning of the “safe harbor” provisions
of the Private Securities Litigation Reform Act of 1995. Forward-looking statements include, but are not limited to, statements regarding
the completion and expected timing of the closing of the underwritten offering, the final size of the offering and the anticipated gross
proceeds of the offering and the use thereof, or other characterizations of future events or circumstances, including any underlying assumptions.
The words “anticipate,” “believe,” “continue,” “could,” “estimate,” “expect,”
“intends,” “may,” “might,” “plan,” “possible,” “potential,” “predict,”
“project,” “should,” “would” and similar expressions may identify forward-looking statements, but the absence
of these words does not mean that a statement is not forward-looking. Forward-looking statements are based on our management’s beliefs,
as well as assumptions made by, and information currently available to, them. Because such statements are based on expectations as to
future financial and operating results and are not statements of fact, actual results may differ materially from those projected.
Factors which may cause actual results to differ
materially from current expectations include, but are not limited to: risks and uncertainties related to market and other conditions and
the satisfaction of customary closing conditions related to the proposed public offering; the anticipated use of the proceeds of the offering
which could change as a result of market conditions or for other reasons; changes adversely affecting the business in which we are engaged;
our ability to forecast trends accurately; our ability to generate cash, service indebtedness and incur additional indebtedness; our ability
to raise financing in the future; our customer’s ability to secure project financing; the amount of final tax credits available
to our customers or to Eos Energy Enterprises, Inc. pursuant to the Inflation Reduction Act; uncertainties around our ability to secure
conditional commitment in a timely manner or at all, or final approval of a loan from the Department of Energy, the Loan Programs Office,
or the timing of funding and the final size of any loan if approved; the possibility of a government shutdown while we remain in the due
diligence phase with the U.S. Department of Energy Loan Programs Office or while we await notice of a decision regarding the issuance
of a loan from the Department Energy Loan Programs Office; our ability to develop efficient manufacturing processes to scale and to forecast
related costs and efficiencies accurately; fluctuations in our revenue and operating results; competition from existing or new competitors;
the failure to convert firm order backlog and pipeline to revenue; risks associated with security breaches in our information technology
systems; risks related to legal proceedings or claims; risks associated with evolving energy policies in the United States and other countries
and the potential costs of regulatory compliance; risks associated with changes to U.S. trade environment; risks resulting from the impact
of global pandemics, including the novel coronavirus, Covid-19; our ability to maintain the listing of our shares of common stock on NASDAQ;
our ability to grow our business and manage growth profitably, maintain relationships with customers and suppliers and retain our management
and key employees; risks related to adverse changes in general economic conditions, including inflationary pressures and increased interest
rates; risk from supply chain disruptions and other impacts of geopolitical conflict; changes in applicable laws or regulations; and other
risks and uncertainties. The forward-looking statements contained in this press release are also subject to additional risks, uncertainties,
and factors, including those more fully described in the Company’s most recent filings with the Securities and Exchange Commission,
including the Company’s most recent Annual Report on Form 10-K and subsequent reports on Forms 10-Q and 8-K, including those under
the heading “Risk Factors” therein, and other factors identified in Eos’s prior and future SEC filings with the SEC,
available at www.sec.gov.
Further information on potential risks that could
affect actual results will be included in the subsequent periodic and current reports and other filings that the Company makes with the
Securities and Exchange Commission from time to time. Moreover, the Company operates in a very competitive and rapidly changing environment,
and new risks and uncertainties may emerge that could have an impact on the forward-looking statements contained in this press release.
Forward-looking statements speak only as of the
date they are made. Readers are cautioned not to put undue reliance on forward-looking statements, and, except as required by law, the
Company assumes no obligation and does not intend to update or revise these forward-looking statements, whether as a result of new information,
future events, or otherwise.
Contacts |
|
|
|
|
|
Investors: |
ir@eose.com |
|
Media: |
media@eose.com |
|
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|
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EOS ENERGY ENTERPRISES, INC.
|
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0001805077
|
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|
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Eos Energy Enterprises (NASDAQ:EOSE)
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