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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):
November 28, 2023
TREASURE GLOBAL INC
(Exact name of registrant as specified in its charter)
Delaware |
|
001-41476 |
|
36-4965082 |
(State or other jurisdiction |
|
(Commission File Number) |
|
(IRS Employer |
of incorporation) |
|
|
|
Identification No.) |
276 5th Avenue, Suite 704 #739
New York, New York |
|
10001 |
(Address of principal executive offices) |
|
(Zip Code) |
+6012 643 7688
(Registrant’s telephone number, including
area code)
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 (see General
Instruction A.2. below):
☐ | 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 $0.00001 per share |
|
TGL |
|
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 November 28, 2023, Treasure Global Inc (the
“Company”) entered into an underwriting agreement (the “Underwriting Agreement”) with EF Hutton LLC as the underwriter
(the “Underwriter”), relating to a firm commitment underwritten public offering (the “Offering”) of (i) 26,014,000
shares of common stock, par value $0.00001 per share (the “Common Stock”), at a public offering price of $0.10 per share of
Common Stock and (ii) 14,000,000 pre-funded warrants (the “Pre-Funded Warrants”), each with the right to purchase one share
of Common Stock, at a public offering price of $0.0999 per Pre-Funded Warrant. The Company granted the Underwriter a 45-day over-allotment
option to purchase up to 6,002,100 additional shares of Common Stock and/or Pre-Funded Warrants. The Offering closed on November 30, 2023.
The net proceeds to the Company from the Offering
were approximately $3.6 million, after deducting underwriting discounts and commissions and the payment of other offering expenses associated
with the Offering that were payable by the Company. The Company paid the Underwriter an underwriting discount equal to 7.0% of the gross
proceeds of the Offering and a non-accountable expense fee equal to 1.0% of the gross proceeds of the Offering.
The Company intends to use the net proceeds of the
Offering for repayment of convertible debentures issued to YA II PN, Ltd. and for general corporate purposes, including working capital.
The Company and its directors and executive officers
also agreed that, for a period of ninety (90) days after the date of the offering, subject to certain limited exceptions and as applicable,
not to directly or indirectly, without the prior written consent of the Underwriter, (i) offer, sell, or otherwise transfer or dispose
of, directly or indirectly, any shares of capital stock of the Company or any securities convertible into or exercisable or exchangeable
for shares of capital stock of the Company or (ii) file or caused to be filed any registration statement with the Securities and Exchange
Commission (the “SEC”) relating to the offering of any shares of capital stock of the Company or any securities convertible
into or exercisable or exchangeable for shares of capital stock of the Company.
The Pre-Funded Warrants were offered and sold
to purchasers whose purchase of Common Stock in the Offering would otherwise result in the purchaser, together with its affiliates and
certain related parties, beneficially owning more than 4.99% (or, at the election of the purchaser, 9.99%) of the Company’s outstanding
Common Stock immediately following the consummation of the Offering in lieu of Common Stock that would otherwise result in the purchaser’s
beneficial ownership exceeding 4.99% of the Company’s outstanding Common Stock (or, at the election of the purchaser, 9.99%). Each
Pre-Funded Warrant is exercisable for one share of Common Stock at an exercise price of $0.0001 per share. The Pre-Funded Warrants are
immediately exercisable and may be exercised at any time until all of the Pre-Funded Warrants are exercised in full.
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 (the “Securities
Act”), and affords certain rights of contribution with respect thereto.
A registration statement on Form S-1, as amended
(File No. 333-275411), relating to the Offering was declared effective by the SEC on November 13, 2023. The Offering was made only by
means of a prospectus forming a part of the effective registration statement.
Item 8.01. Other Events.
On October 9, 2023, the Company received a written
notice (the “Notice”) from The Nasdaq Stock Market LLC (“Nasdaq”), notifying the Company that it is no longer
in compliance with the minimum stockholders’ equity requirement for continued listing on The Nasdaq Capital Market. Nasdaq Listing
Rule 5550(b)(1) requires listed companies to maintain stockholders’ equity of at least $2,500,000. As a result of the Offering,
the Company believes that as of the date of this Current Report on Form 8-K, it has met the minimum stockholders’ equity amount
required by Nasdaq. Nasdaq will continue to monitor the Company’s ongoing compliance with the stockholders’ equity requirement
and, if at the time of its next periodic report the Company does not evidence compliance, the Company may be subject to delisting.
On November 29, 2023, the Company issued a press
release announcing the pricing of the Offering. A copy of the press release is attached as Exhibit 99.1 to this Current Report on Form
8-K and is incorporated herein by reference.
On November 30, 2023, the Company issued a press
release announcing the closing of the Offering. A copy of the press release is attached as Exhibit 99.2 to this Current Report on Form
8-K and is incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
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.
Date: December 1, 2023 |
TREASURE GLOBAL INC |
|
|
|
By: |
/s/ Chong Chan “Sam” Teo |
|
Name: |
Chong Chan “Sam” Teo |
|
Title: |
Chief Executive Officer |
3
Exhibit 1.1
UNDERWRITING AGREEMENT
between TREASURE GLOBAL
INC
and
EF HUTTON,
division of Benchmark Investments,
LLC,
as Representative of the Several
Underwriters named on Schedule 1 attached hereto
TREASURE GLOBAL INC UNDERWRITING
AGREEMENT
New York,
New York
November 28, 2023
EF Hutton,
division of Benchmark Investments, LLC
as Representative of the several Underwriters named
on Schedule 1 attached hereto
590 Madison Avenue, 39th
Floor
New York, New York 10022
Ladies and Gentlemen:
The undersigned,
Treasure Global Inc, a corporation formed under the laws of the State of Delaware (collectively with its subsidiaries and affiliates,
including, without limitation, all entities disclosed or described in the Registration Statement (as hereinafter defined) as being subsidiaries,
the “Company”), hereby confirms its agreement (this “Agreement”) with EF Hutton, division of Benchmark
Investments, LLC (hereinafter referred to as “you” (including its correlatives) or the “Representative”),
and with the other underwriters named on Schedule 1 hereto for which the Representative is acting as representative (the Representative
and such other underwriters being collectively called the “Underwriters” or, individually, an “Underwriter,”
and if there are no Underwriters other than the Representative, references to multiple Underwriters shall be disregarded and the term
Representative as used herein shall have the same meaning as Underwriter) as follows:
1. PURCHASE AND SALE OF SHARES.
1.1. Firm Securities.
1.1.1. Nature and Purchase of Firm Securities.
(i) On
the basis of the representations and warranties herein contained, but subject to the terms and conditions herein set forth, the Company
agrees to issue and sell to the several Underwriters, an aggregate of: (i) 40,014,000 authorized but unissued shares (the “Firm
Shares”) of common stock of the Company, par value $0.00001 per share (the “Common Stock”) as set forth opposite
their respective names on Schedule 1 hereto, at a purchase price (net of discounts and commissions) of (a) $0.0930 per Firm Share,
being equal to 93% of the public offering price of the Firm Shares for 22,321,780 of the Firm Shares and (b) $0.0965 per Firm Share, being
equal to 96.5% of the public offering price of the Firm Shares for 17,692,220 of the Firm Shares. The Firm Shares are to be offered initially
to the public at the offering price set forth on the cover page of the Prospectus (as defined in Section 2.1.1 hereof),
(ii) To the
extent that the purchase of Firm Shares would cause the beneficial ownership of a purchaser in the Offering, together with its
affiliates and certain related parties, to exceed 4.99% (or, at the election of the purchaser, 9.99%) of the outstanding Common
Stock, the Company agrees to issue the Underwriter, for delivery to such purchasers, at the election of the purchasers, a number
shares of Pre-Funded Warrants (the “Pre-Funded Warrants”), which are initially convertible on a one-for-one (1:1)
basis into Common Stock, at a price of $0.0999 (100% of the public offering price allocated to each Firm Share less $0.0001), and
the remaining non pre-funded exercise price of each pre-funded warrant will be $0.0001 per share. The Common stock issuable upon
exercise of the Pre-Funded Warrants are hereinafter referred to as the “Pre-Funded Warrant Shares” and, together
with the Firm Shares, the “Firm Securities.”
1.1.2. Payment and Delivery of Securities.
(i) Delivery
and payment for the Firm Securities shall be made at 10:00 a.m., Eastern time, on the second (2nd) Business Day following the effective
date (the “Effective Date”) of the Registration Statement (as defined in Section 2.1.1 below) (or the third
(3rd) Business Day following the Effective Date if the Registration Statement is declared effective after 4:01 p.m., Eastern time) or
at such earlier or later time as shall be agreed upon by the Representative and the Company, at the offices of Lucosky Brookman LLP, 10
Wood Avenue South, 5th Floor, Woodbridge, NJ 08830, Attn. Joseph Lucosky (“Representative Counsel”), or at such other
place (or remotely by facsimile or other electronic transmission) as shall be agreed upon by the Representative and the Company. The hour
and date of delivery and payment for the Firm Securities is called the “Closing Date.”
(ii) Payment
for the Firm Securities shall be made on the Closing Date by wire transfer in Federal (same day) funds, payable to the order of the Company
upon delivery of the certificates (in form and substance satisfactory to the Underwriters) representing the Firm Securities (or through
the facilities of the Depository Trust Company (“DTC”)) for the account of the Underwriters. The Firm Securities shall
be registered in such name or names and in such authorized denominations as the Representative may request in writing at least one (1)
Business Day prior to the Closing Date. The Company shall not be obligated to sell or deliver the Firm Securities except upon tender of
payment by the Representative for all of the Firm Securities. The term “Business Day” means any day other than Saturday,
Sunday, or other day on which commercial banks in The City of New York are authorized or required by law to remain closed; provided,
however, for clarification, commercial banks shall not be deemed to be authorized or required by law to remain closed due to “stay-at-home,”
“shelter-in-place,” “non-essential employee,” or any other similar orders or restrictions or the closure of any
physical branch locations at the direction of any governmental authority so long as the electronic funds transfer systems (including for
wire transfers) of commercial banks in The City of New York generally are open for use by customers on such day.
1.2. Over-allotment Option.
1.2.1. Option
Securities. For the purposes of covering any over-allotments in connection with the distribution and sale of the Firm Securities,
the Company hereby grants to the Underwriters an option to purchase up to 6,021,000 additional shares of Common Stock (the “Option
Shares”) and/or Pre-Funded Warrants, if any (the “Option Pre-Funded Warrants” and, together with the Pre-Funded
Warrants, if any, the “Warrants”), representing fifteen percent (15%) of the Firm Securities sold in the offering,
from the Company (the “Over-allotment Option”). The Pre-Funded Warrants and the Option Pre-Funded Warrants are hereinafter
collectively referred to as the “Warrants.” The shares of Common Stock into which the Option Pre-Funded Warrants are
exercisable are hereinafter referred to as the “Option Pre-Funded Warrant Shares.” The shares of Common Stock into
which the Warrants are exercisable are hereinafter referred to as the “Warrant Shares.” The Option Shares and the Option
Pre-Funded Warrants Shares are referred to as the “Option Securities.” The Firm Securities and the Option Securities
are hereinafter collectively referred to as the “Primary Securities.” The Primary Securities and the Warrant Shares
are hereinafter collectively referred to as the “Public Securities.” The offering and sale of the Primary Securities
is hereinafter referred to as the “Offering.”
1.2.2. Exercise of
Option. The Over-allotment Option granted pursuant to Section 1.2.1 hereof may be exercised by the Representative as to
all (at any time) or any part (from time to time) of the Option Securities within forty-five (45) days after the Effective Date. The
Underwriters shall not be under any obligation to purchase any Option Securities prior to the exercise of the Over-allotment Option.
The Over- allotment Option granted hereby may be exercised by the giving of oral notice to the Company from the Representative,
which must be confirmed in writing by overnight mail or facsimile or other electronic transmission setting forth the number of
Option Shares and accompanying Option Warrants to be purchased and the date and time for delivery of and payment for the Option
Securities (each, an “Option Closing Date”), which shall not be later than one (1) Business Day after the date of
the notice or such other time as shall be agreed upon by the Company and the Representative, at the offices of Representative
Counsel or at such other place (including remotely by facsimile or other electronic transmission) as shall be agreed upon by the
Company and the Representative. If such delivery and payment for the Option Securities does not occur on the Closing Date, each
Option Closing Date will be as set forth in the notice. Upon exercise of the Over- allotment Option with respect to all or any
portion of the Option Securities, subject to the terms and conditions set forth herein, the Underwriters, acting severally and not
jointly, will become obligated to purchase, the number of Option Securities specified in such notice.
1.2.3. Payment
and Delivery. Payment for the Option Securities shall be made on the Option Closing Date by wire transfer in Federal (same day) funds,
payable to the order of the Company upon delivery to you of certificates (in form and substance satisfactory to the Underwriters) representing
the Option Shares and accompanying Option Warrants (or through the facilities of DTC) for the account of the Underwriters. The Option
Securities shall be registered in such name or names and in such authorized denominations as the Representative may request in writing
at least one (1) Business Day prior to the Option Closing Date. The Company shall not be obligated to sell or deliver the Option Securities
except upon tender of payment by the Representative for applicable Option Securities.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants
to the Underwriters as of the Applicable Time (as defined below), as of the Closing Date and as of the Option Closing Date, if any, as
follows:
2.1. Filing of Registration Statement.
2.1.1. Pursuant
to the Securities Act. The Company has filed with the U.S. Securities and Exchange Commission (the “Commission”)
a registration statement, and an amendment or amendments thereto, on Form S-1 (File No. 333-333-275411), including any related prospectus
or prospectuses, for the registration of the Public Securities under the Securities Act of 1933, as amended (the “Securities
Act”). Except as the context may otherwise require, such registration statement, as amended, on file with the Commission at
the time the registration statement became effective (including the Preliminary Prospectus included in the registration statement, financial
statements, schedules, exhibits, and all other documents filed as a part thereof or incorporated therein and all information deemed to
be a part thereof as of the Effective Date pursuant to paragraph (b) of Rule 430A (the “Rule 430A Information”) of
the rules and regulations of the Commission promulgated thereunder (the “Securities Act Regulations”), is referred
to herein as the “Registration Statement.” If the Company files any registration statement pursuant to Rule 462(b)
of the Securities Act Regulations, then after such filing, the term “Registration Statement” shall include such registration
statement filed pursuant to Rule 462(b). The Registration Statement has been declared effective by the Commission on the date hereof.
Each prospectus
used prior to the effectiveness of the Registration Statement, and each prospectus that omitted the Rule 430A Information that was used
after such effectiveness and prior to the execution and delivery of this Agreement, is herein called a “Preliminary Prospectus.”
The Preliminary Prospectus, subject to completion, dated November 13, 2023, that was included in the Registration Statement immediately
prior to the Applicable Time is hereinafter called the “Pricing Prospectus.” The final prospectus in the form first
furnished to the Underwriters for use in the Offering, that includes the Rule 430A Information, is hereinafter called the “Prospectus.”
Any reference to the “most recent Preliminary Prospectus” shall be deemed to refer to the latest Preliminary Prospectus included
in the Registration Statement.
“Applicable Time”
means 5:45p.m., Eastern time, on the date of this Agreement.
“Issuer Free
Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433 of the Securities Act
Regulations (“Rule 433”), including without limitation any “free writing prospectus” (as defined in
Rule 405 of the Securities Act Regulations) relating to the Public Securities that is (i) required to be filed with the Commission
by the Company, (ii) a “road show that is a written communication” within the meaning of Rule 433(d)(8)(i), whether or
not required to be filed with the Commission, or (iii) exempt from filing with the Commission pursuant to Rule 433(d)(5)(i) because
it contains a description of the Public Securities or of the Offering that does not reflect the final terms, in each case in the
form filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the Company’s
records pursuant to Rule 433(g).
“Issuer
General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is intended for general distribution to prospective
investors (other than a “bona fide electronic road show,” as defined in Rule 433 (the “Bona Fide Electronic
Road Show”)), as evidenced by its being specified in Schedule 2-B hereto.
“Issuer
Limited Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is not an Issuer General Use Free Writing
Prospectus.
“Pricing
Disclosure Package” means any Issuer General Use Free Writing Prospectus issued at or prior to the Applicable Time, the Pricing
Prospectus and the information included on Schedule 2-A hereto, all considered together.
2.1.2. Pursuant
to the Exchange Act. The registration of the Public Securities pursuant to Section 12(b) under the Securities Exchange Act of 1934,
as amended (the “Exchange Act”) is effective. The Company has taken no action designed to, or likely to have the effect
of, terminating the registration of the Public Securities under the Exchange Act, nor has the Company received any notification that the
Commission is contemplating terminating such registration.
2.2. Stock
Exchange Listing. The Common Stock has been approved for listing on The Nasdaq Capital Market (the “Exchange”),
and the Company has taken no action designed to, or likely to have the effect of, delisting the Common Stock from the Exchange, nor has
the Company received any notification that the Exchange is contemplating terminating such listing except as described in the Registration
Statement, the Pricing Disclosure Package and the Prospectus.
2.3. No
Stop Orders, etc. Neither the Commission nor, to the Company’s knowledge, any state regulatory authority has issued any order
preventing or suspending the use of the Registration Statement, any Preliminary Prospectus or the Prospectus or has instituted or, to
the Company’s knowledge, threatened to institute, any proceedings with respect to such an order. The Company has complied with each
request (if any) from the Commission for additional information.
2.4. Disclosures in Registration Statement.
2.4.1. Compliance with Securities Act and 10b-5 Representation.
(i) Each
of the Registration Statement and any post-effective amendment thereto, at the time it became effective, complied in all material respects
with the requirements of the Securities Act and the Securities Act Regulations. Each Preliminary Prospectus, including the prospectus
filed as part of the Registration Statement as originally filed or as part of any amendment or supplement thereto, and the Prospectus,
at the time each was filed with the Commission, complied in all material respects with the requirements of the Securities Act and the
Securities Act Regulations. Each Preliminary Prospectus delivered to the Underwriters for use in connection with this Offering and the
Prospectus was or will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to the Commission’s
EDGAR filing system (“EDGAR”), except to the extent permitted by Regulation S-T promulgated under the Securities Act
(“Regulation S-T”).
(ii) Neither
the Registration Statement nor any amendment thereto, at its effective time, as of the Applicable Time, at the Closing Date or at any
Option Closing Date (if any), contained, contains or will contain an untrue statement of a material fact or omitted, omits or will omit
to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
(iii) The Pricing Disclosure
Package, as of the Applicable Time, at the Closing Date or at any Option Closing Date (if any), did not, does not and will not
include 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; and each Issuer Limited Use Free Writing Prospectus hereto
does not conflict in any material respect with the information contained in the Registration Statement, any Preliminary Prospectus,
the Pricing Prospectus, or the Prospectus, and each such Issuer Limited Use Free Writing Prospectus, as supplemented by and taken
together with the Pricing Prospectus as of the Applicable Time, did not include 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 this representation and warranty shall not apply to statements made or
statements omitted in reliance upon and in conformity with written information furnished to the Company with respect to the
Underwriters by the Representative expressly for use in the Registration Statement, the Pricing Prospectus or the Prospectus or any
amendment thereof or supplement thereto. The parties acknowledge and agree that such information provided by or on behalf of any
Underwriter consists solely of the following disclosure contained in the “Underwriting” section of the Prospectus: the
names of the Underwriters, the information in the second paragraph under the subheading titled “Discounts, Commissions and
Expenses” and the information under the subheadings titled “Price Stabilization, Short Positions, and Penalty
Bids” and “Electronic Distribution” (the “Underwriters’ Information”).
(iv) Neither
the Prospectus nor any amendment or supplement thereto (including any prospectus wrapper), as of its issue date, at the time of any filing
with the Commission pursuant to Rule 424(b), at the Closing Date or at any Option Closing Date, included, includes, or will include an
untrue statement of a material fact or omitted, omits, or will omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not misleading; provided, however, that this representation
and warranty shall not apply to the Underwriters’ Information.
2.4.1. Disclosure
of Agreements. The agreements and documents described in the Registration Statement, the Pricing Disclosure Package, and the
Prospectus conform in all material respects to the descriptions thereof contained therein and there are no agreements or other documents
required by the Securities Act and the Securities Act Regulations to be described in the Registration Statement, the Pricing Disclosure
Package, and the Prospectus or to be filed with the Commission as exhibits to the Registration Statement, that have not been so described
or filed. Each agreement or other instrument (however characterized or described) to which the Company is a party or by which it is or
may be bound or affected and (i) that is referred to in the Registration Statement, the Pricing Disclosure Package and, the Prospectus,
or (ii) is material to the Company’s business, has been duly authorized and validly executed by the Company, is in full force and
effect in all material respects and is enforceable against the Company and, to the Company’s knowledge, the other parties thereto,
in accordance with its terms, except (x) as such enforceability may be limited by bankruptcy, insolvency, reorganization, or similar laws
affecting creditors’ rights generally, (y) as enforceability of any indemnification or contribution provision may be limited under
the federal and state securities laws, and (z) that the remedy of specific performance and injunctive and other forms of equitable relief
may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought, and except
for any unenforceability that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Change
(as defined in Section 2.5.1 below). None of such agreements or instruments has been assigned by the Company, and neither the Company
nor, to the Company’s knowledge, any other party is in material default thereunder and, to the Company’s knowledge, no event
has occurred that, with the lapse of time or the giving of notice, or both, would constitute a default thereunder except for such defaults
that would not reasonably be expected to result in a Material Adverse Change (as defined in Section 2.5.1 below). To the Company’s
knowledge, performance by the Company of the material provisions of such agreements or instruments will not result in a violation of any
existing applicable law, rule, regulation, judgment, order, or decree of any governmental or regulatory agency, authority, body, entity
or court, domestic or foreign, having jurisdiction over the Company or any of its assets or businesses (each, a “Governmental
Entity”), including, without limitation, those relating to environmental laws and regulations, that, individually or in the
aggregate, would not reasonably be expected to result in a Material Adverse Change as defined in Section 2.5.1 below.
2.4.3. Prior
Securities Transactions. No securities of the Company have been sold by the Company or by or on behalf of, or for the benefit of,
any person or persons controlling, controlled by, or under common control with the Company, except as disclosed in the Registration Statement,
the Pricing Disclosure Package, and the Preliminary Prospectus.
2.4.4. Regulations.
The disclosures in the Registration Statement, the Pricing Disclosure Package and the Prospectus concerning the effects of federal, state,
local and all foreign laws, rules and regulations relating to the Offering and the Company’s business as currently conducted or
contemplated are correct and complete in all material respects and no other such laws, rules, or regulations are required under the Securities
Act and the Securities Act Regulations to be disclosed in the Registration Statement, the Pricing Disclosure Package, and the Prospectus
which are not so disclosed.
2.4.5. No
Other Distribution of Offering Materials. The Company has not, directly or indirectly, distributed and will not distribute any offering
material in connection with the Offering other than any Preliminary Prospectus, any Issuer Free Writing Prospectus, the Prospectus, and
other materials, if any, permitted under the Securities Act and consistent with Section 3.2 below.
2.5. Changes After Dates in Registration Statement.
2.5.1. No
Material Adverse Change. Since the respective dates as of which information is given in the Registration Statement, the Pricing
Disclosure Package, and the Prospectus, except as otherwise specifically stated therein: (i) there has been no material adverse
change in the financial position or results of operations of the Company or its Subsidiaries taken as a whole, nor to the
Company’s knowledge, any change or development that, singularly or in the aggregate, would involve a material adverse change
or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business,
assets, or prospects of the Company or its Subsidiaries taken as a whole (a “Material Adverse Change”); (ii)
there have been no material transactions entered into by the Company or its Subsidiaries, other than as contemplated pursuant to
this Agreement; and (iii) no officer or director of the Company has resigned from any position with the Company.
2.5.2. Recent
Securities Transactions, etc. Subsequent to the respective dates as of which information is given in the Registration Statement, the
Pricing Disclosure Package, and the Prospectus, and except as may otherwise be indicated or contemplated herein or disclosed in the Registration
Statement, the Pricing Disclosure Package, and the Prospectus, the Company has not: (i) issued any securities or incurred any liability
or obligation, direct or contingent, for borrowed money; or (ii) declared or paid any dividend or made any other distribution on or in
respect to its capital stock.
2.6. Disclosures
in Commission Filings. None of the Company’s filings with, or other documents furnished to, the Commission contained any untrue
statement of a material fact or omitted to state any 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 this representation and warranty shall
not apply to the Underwriters’ Information. The Company has made all filings with the Commission required under the Exchange Act
and the rules and regulations of the Commission promulgated thereunder (the “Exchange Act Regulations”).
2.7. Independent
Accountants. To the knowledge of the Company, each of Friedman LLP which combined with Marcum LLP and WWC, P.C. (the “Auditors”)
whose reports are filed with the Commission as part of the Registration Statement, the Pricing Disclosure Package, and the Prospectus,
is an independent registered public accounting firm as required by the Securities Act and the Securities Act Regulations and the Public
Company Accounting Oversight Board. The Auditors have not, during the periods covered by the financial statements included in the Registration
Statement, the Pricing Disclosure Package, and the Prospectus, provided to the Company any non- audit services, as such term is used in
Section 10A(g) of the Exchange Act.
2.8. Financial
Statements, etc. The financial statements, including the notes thereto and supporting schedules included in the Registration
Statement, the Pricing Disclosure Package, and the Prospectus, fairly present in all material respects the financial position and
the results of operations of the Company at the dates and for the periods to which they apply; and such financial statements have
been prepared in conformity with U.S. generally accepted accounting principles (“GAAP”), consistently applied
throughout the periods involved (provided that unaudited interim financial statements are subject to year-end audit adjustments that
are not expected to be material in the aggregate and do not contain all footnotes required by GAAP); and the supporting schedules
included in the Registration Statement present fairly in all material respects the information required to be stated therein. Except
as included therein, no historical or pro forma financial statements are required to be included in the Registration Statement, the
Pricing Disclosure Package, or the Prospectus under the Securities Act or the Securities Act Regulations. The pro forma and pro
forma as adjusted financial information and the related notes, if any, included in the Registration Statement, the Pricing
Disclosure Package, and the Prospectus have been properly compiled and prepared in accordance with the applicable requirements of
the Securities Act and the Securities Act Regulations and present fairly in all material respects the information shown therein, and
the assumptions used in the preparation thereof are reasonable and the adjustments used therein are appropriate to give effect to
the transactions and circumstances referred to therein. All disclosures contained in the Registration Statement, the Pricing
Disclosure Package, or the Prospectus regarding “non-GAAP financial measures” (as such term is defined by the rules and
regulations of the Commission), if any, comply in all material respects with Regulation G of the Exchange Act and Item 10 of
Regulation S-K of the Securities Act, to the extent applicable. Each of the Registration Statement, the Pricing Disclosure Package,
and the Prospectus discloses all material off-balance sheet transactions, arrangements, obligations (including contingent
obligations), and other relationships of the Company with unconsolidated entities or other persons that may have a material current
or future effect on the Company’s financial condition, changes in financial condition, results of operations, liquidity,
capital expenditures, capital resources, or significant components of revenues or expenses. Except as disclosed in the Registration
Statement, the Pricing Disclosure Package, and the Prospectus, (a) since the date of the last balance sheet included in the
Registration Statement, the Pricing Disclosure Package, and the Prospectus, neither the Company nor any of its direct and indirect
subsidiaries, including each entity disclosed or described in the Registration Statement, the Pricing Disclosure Package, and the
Prospectus as being a subsidiary of the Company (each, a “Subsidiary” and, collectively, the
“Subsidiaries”), has incurred any material liabilities or obligations, direct or contingent, or entered into any
material transactions other than in the ordinary course of business, (b) the Company has not declared or paid any dividends or made
any distribution of any kind with respect to its capital stock, (c) there has not been any change in the capital stock of the
Company or any of its Subsidiaries, or, other than in the ordinary course of business, any grants under any stock compensation plan,
and (d) there has not been any material adverse change in the Company’s long-term or short-term debt. The Company represents
that it has no direct or indirect subsidiaries other than those listed in Exhibit 21.1 to the Registration Statement.
2.9. Authorized
Capital; Options, etc. The Company had, at the date or dates indicated in the Registration Statement, the Pricing Disclosure Package,
and the Prospectus, the duly authorized, issued, and outstanding capitalization as set forth therein. Based on the assumptions stated
in the Registration Statement, the Pricing Disclosure Package, and the Prospectus, the Company will have on the Closing Date the adjusted
capitalization set forth therein. Except as set forth in, or contemplated by, the Registration Statement, the Pricing Disclosure Package,
and the Prospectus, on the Effective Date, as of the Applicable Time and on the Closing Date and any Option Closing Date, there will be
no stock options, warrants, or other rights to purchase or otherwise acquire any authorized, but unissued shares of Common Stock of the
Company or any security convertible or exercisable into shares of Common Stock of the Company, or any contracts or commitments to issue
or sell shares of Common Stock or any such options, warrants, rights, or convertible securities.
2.10. Valid Issuance of Securities, etc.
2.10.1. Outstanding
Securities. All issued and outstanding securities of the Company issued prior to the transactions contemplated by this Agreement have
been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission or the
ability to force the Company or any of its Subsidiaries to repurchase such securities with respect thereto, and are not subject to personal
liability by reason of being such holders; and none of such securities were issued in violation of the preemptive rights, rights of first
refusal, or rights of participation of any holders of any security of the Company or similar contractual rights granted by the Company.
The authorized shares of Common Stock conform in all material respects to all statements relating thereto contained in the Registration
Statement, the Pricing Disclosure Package, and the Prospectus. The offers and sales of the outstanding shares of Common Stock, options,
warrants, and other outstanding securities convertible into or exercisable for shares of Common Stock, were at all relevant times either
registered under the Securities Act and the applicable state securities or “blue sky” laws or, based in part on the representations
and warranties of the purchasers of such shares of Common Stock, exempt from such registration requirements. The description of the Company’s
stock option, stock bonus, and other related plans or arrangements, and options and/or other rights granted thereunder, as described in
the Registration Statement, the Pricing Disclosure Package, and the Prospectus, accurately and fairly present, in all material respects,
the information required to be shown with respect to such plans, arrangements, options, and rights.
2.10.2. Securities
Sold Pursuant to this Agreement. The Public Securities and have been duly authorized for issuance and sale and, when issued and paid
for, will be validly issued, fully paid, and non- assessable; the holders thereof are not and will not be subject to personal liability
by reason of being such holders; the Public Securities are and will be free from all preemptive rights of any holders of any security
of the Company, or similar contractual rights granted by the Company; and all corporate action required to be taken for the authorization,
issuance, and sale of the Public Securities has been duly and validly taken. The Warrants, when issued and paid for pursuant to this Agreement
and the Warrant Agent Agreement (as defined below), will constitute valid and binding obligations of the Company to issue and sell, upon
exercise thereof and payment therefor, the Warrant Shares. The Public Securities conform in all material respects to all statements with
respect thereto contained in the Registration Statement, the Pricing Disclosure Package, and the Prospectus.
2.11. Registration
Rights of Third Parties. Except as set forth in the Registration Statement, the Pricing Disclosure Package, and the Prospectus, no
holders of any securities of the Company or any options, warrants, rights, or other securities exercisable for or convertible or exchangeable
into securities of the Company have the right to require the Company to register any such securities of the Company under the Securities
Act or to include any such securities in the Registration Statement or any other registration statement to be filed by the Company.
2.12. Validity
and Binding Effect of Agreements. The execution, delivery, and performance of this Agreement and Warrants have been duly and validly
authorized by the Company, and, when executed and delivered, will constitute, the valid and binding agreements of the Company, enforceable
against the Company in accordance with their respective terms, except: (i) as such enforceability may be limited by bankruptcy, insolvency,
reorganization, or similar laws affecting creditors’ rights generally; (ii) as enforceability of any indemnification or contribution
provision may be limited under the federal and state securities laws; and (iii) that the remedy of specific performance and injunctive
and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding
therefor may be brought.
2.13. No
Conflicts, etc. The execution, delivery, and performance by the Company of this Agreement, and Warrants, and all ancillary documents,
the consummation by the Company of the transactions herein and therein contemplated and the compliance by the Company with the terms hereof
and thereof do not and will not, with or without the giving of notice or the lapse of time or both: (i) result in a breach of, or conflict
with any of the terms and provisions of, or constitute a default under, or result in the creation, modification, termination, or imposition
of any lien, charge, or encumbrance upon any property or assets of the Company pursuant to the terms of any indenture, mortgage, deed
of trust, loan agreement, or any other agreement or instrument to which the Company is a party or as to which any property of the Company
is a party except breaches, conflicts, or defaults that would not reasonably be expected to result in a Material Adverse Change; (ii)
result in any violation of the provisions of the Company’s Articles of Incorporation (as the same have been amended or restated
from time to time, the “Charter”) or the bylaws of the Company; or (iii) violate in any material respect any existing
applicable law, rule, regulation, judgment, order, or decree of any Governmental Entity as of the date hereof having jurisdiction over
the Company.
2.14. No
Defaults; Violations. Except as set forth in the Registration Statement, the Pricing Disclosure Package, and the Prospectus, no default
exists in the due performance and observance of any term, covenant, or condition of any license, contract, indenture, mortgage, deed of
trust, note, loan or credit agreement, or any other agreement or instrument evidencing an obligation for borrowed money, or any other
agreement or instrument to which the Company is a party or by which the Company may be bound or to which any of the properties or assets
of the Company is subject except for any such default that would not be reasonably expected to result in a Material Adverse Change. The
Company is not in violation of any term or provision of its Charter or bylaws, or in violation of any franchise, license, permit, applicable
law, rule, regulation, judgment, or decree of any Governmental Entity, except for such violations that would not be reasonably expected
to result in a Material Adverse Change.
2.15. Corporate Power; Licenses; Consents.
2.15.1. Conduct
of Business. Except as described in the Registration Statement, the Pricing Disclosure Package, and the Prospectus, the Company has
all requisite corporate power and authority, and has all consents, authorizations, approvals, licenses, certificates, clearances, permits,
and orders and supplements and amendments thereto (collectively, “Authorizations”) of and from all Governmental Entities
that it needs as of the date hereof to conduct its business purpose as described in the Registration Statement, the Pricing Disclosure
Package and the Prospectus, except for such Authorizations, the absence of which would reasonably be expected to have a Material Adverse
Change.
2.15.2. Transactions
Contemplated Herein. The Company has all corporate power and authority to enter into this Agreement and to carry out the provisions
and conditions hereof, and all Authorizations required in connection therewith have been obtained. No Authorization of, and no filing
with, any Governmental Entity, the Exchange, or another body is required for the valid issuance, sale, and delivery of the Public Securities
and the consummation of the transactions and agreements contemplated by this Agreement and as contemplated by the Registration Statement,
the Pricing Disclosure Package, and the Prospectus, except with respect to applicable Securities Act Regulations, state securities laws,
and the rules and regulations of the Financial Industry Regulatory Authority, Inc. (“FINRA”).
2.16. D&O
Questionnaires. To the Company’s knowledge, all information contained in the questionnaires (the “Questionnaires”)
completed by each of the Company’s directors and officers immediately prior to the Offering (the “Insiders”)
as supplemented by all information concerning the Insiders as described in the Registration Statement, the Pricing Disclosure Package,
and the Prospectus provided to the Underwriters, is true and correct in all material respects and the Company has not become aware of
any information which would cause the information disclosed in the Questionnaires to become materially inaccurate and incorrect.
2.17. Litigation;
Governmental Proceedings. There is no action, suit, proceeding, inquiry, arbitration, investigation, litigation, or governmental proceeding
pending or, to the Company’s knowledge, threatened against, or involving the Company or, to the Company’s knowledge, any executive
officer or director which has not been disclosed in the Registration Statement, the Pricing Disclosure Package, and the Prospectus, or
in connection with the Company’s listing application for the listing of the Common Stock on the Exchange.
2.18. Good
Standing. The Company has been duly incorporated and is validly existing as a corporation and is in good standing under the laws of
the State of Delaware as of the date hereof, and is duly qualified to do business and is in good standing in each other jurisdiction in
which its ownership or lease of property or the conduct of business requires such qualification, except where the failure to qualify,
singularly or in the aggregate, would not have or reasonably be expected to result in a Material Adverse Change.
2.19. Insurance.
The Company carries or is entitled to the benefits of insurance (including, without limitation, as to directors and officers insurance
coverage), with reputable insurers, in such amounts and covering such risks which the Company believes are adequate as are customary for
companies engaged in similar business, and to the Company’s knowledge all such insurance is in full force and effect. The Company
has no reason to believe that it will not be able (i) to renew its existing insurance coverage as and when such policies expire or (ii)
to obtain comparable coverage from similar institutions as may be necessary or appropriate to conduct its business as now conducted and
at a cost that would not reasonably be expected to result in a Material Adverse Change.
2.20. Transactions Affecting Disclosure to FINRA.
2.20.1. Finder’s
Fees. Except as described in the Registration Statement, the Pricing Disclosure Package, and the Prospectus, there are no claims,
payments, arrangements, agreements, or understandings relating to the payment of a finder’s, consulting or origination fee by the
Company or any Insider with respect to the sale of the Public Securities hereunder or any other arrangements, agreements or understandings
of the Company or, to the Company’s knowledge, any of its stockholders that may affect the Underwriters’ compensation, as
determined by FINRA.
2.20.2. Payments
Within Twelve (12) Months. Except as described in the Registration Statement, the Pricing Disclosure Package, and the Prospectus,
the Company has not made any direct or indirect payments in connection with the Offering (in cash, securities, or otherwise) to: (i) any
person, as a finder’s fee, consulting fee, or otherwise, in consideration of such person raising capital for the Company or introducing
to the Company persons who raised or provided capital to the Company; (ii) any FINRA member; or (iii) any person or entity that has any
direct or indirect affiliation or association with any FINRA member, within the twelve (12) months prior to the Effective Date, other
than the payment to the Underwriters as provided hereunder in connection with the Offering.
2.20.3. Use
of Proceeds. None of the net proceeds of the Offering will be paid by the Company to any participating FINRA member or its affiliates,
except as specifically authorized herein.
2.20.4. FINRA
Affiliation. There is no (i) officer or director of the Company, (ii) beneficial owner of five percent (5%) or more of any class of
the Company’s securities, or (iii) beneficial owner of the Company’s unregistered equity securities which were acquired during
the one hundred eighty (180)-day period immediately preceding the filing of the Registration Statement that is an affiliate or associated
person of a FINRA member participating in the Offering (as determined in accordance with the rules and regulations of FINRA).
2.20.5. Information.
All information provided by the Company in its FINRA questionnaire to Representative Counsel specifically for use by Representative Counsel
in connection with its Public Offering System filings (and related disclosure) with FINRA is true, correct, and complete in all material
respects.
2.21. Foreign
Corrupt Practices Act. None of the Company and its Subsidiaries or, to the Company’s knowledge, any director, officer, agent,
employee, or affiliate of the Company and its Subsidiaries or any other person acting on behalf of, and with authority from, the Company
and its Subsidiaries, has, directly or indirectly, given or agreed to give any money, gift, or similar benefit (other than legal price
concessions to customers in the ordinary course of business) to any customer, supplier, employee, or agent of a customer or supplier,
or official or employee of any Governmental Entity (domestic or foreign) or any political party or candidate for office (domestic or foreign)
or other person who was, is, or may be in a position to help or hinder the business of the Company (or assist it in connection with any
actual or proposed transaction) that (i) might subject the Company to any damage or penalty in any civil, criminal, or governmental litigation
or proceeding, (ii) if not given in the past, might have had a Material Adverse Change, or (iii) if not continued in the future, might
adversely affect the assets, business, operations, or prospects of the Company. The Company has taken reasonable steps to ensure that
its accounting controls and procedures are sufficient to cause the Company to comply in all material respects with the Foreign Corrupt
Practices Act of 1977, as amended.
2.22. Compliance
with OFAC. None of the Company and its Subsidiaries or, to the Company’s knowledge, any director, officer, agent, employee,
or affiliate of the Company and its Subsidiaries or any other person acting on behalf of, and with authority from, the Company and its
Subsidiaries, is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Department of
the Treasury (“OFAC”), and the Company will not, directly or indirectly, use the proceeds of the Offering hereunder,
or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for
the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
2.23. Money
Laundering Laws. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance in all
material respects with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting
Act of 1970, as amended, the money laundering statutes of all applicable jurisdictions, the rules and regulations thereunder and any related
or similar rules, regulations or guidelines, issued, administered or enforced by any Governmental Entity (collectively, the “Money
Laundering Laws”); and no action, suit, or proceeding by or before any Governmental Entity involving the Company with respect
to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
2.24. Officers’
Certificate. Any certificate signed by any duly authorized officer of the Company and delivered to you or to Representative Counsel
on the Closing Date or on the Option Closing Date shall be deemed a representation and warranty by the Company to the Underwriters as
to the matters covered thereby.
2.25. Lock-Up
Agreements. Schedule 3 hereto contains a complete and accurate list of the Company’s officers, directors and each
owner of 5% or more of the Company’s outstanding shares of Common Stock (or securities convertible or exercisable into shares
of Common Stock) (collectively, the “Lock-Up Parties”). The Company has caused each of the Lock-Up Parties to
deliver to the Representative an executed Lock-Up Agreement, in a form substantially similar to that attached hereto as Exhibit
A (the “Lock-Up Agreement”), prior to the execution of this Agreement.
2.26. Subsidiaries.
All direct and indirect Subsidiaries of the Company are duly organized and in good standing under the laws of the place of organization
or incorporation, and each Subsidiary is in good standing in each jurisdiction in which its ownership or lease of property or the conduct
of business requires such qualification, except where the failure to qualify would not have a material adverse effect on the assets, business,
or operations of the Company taken as a whole. The Company’s ownership and control of each Subsidiary is as described in the Registration
Statement, the Pricing Disclosure Package, and the Prospectus.
2.27. Related
Party Transactions. There are no business relationships or related party transactions involving the Company or any other person required
to be described in the Registration Statement, the Pricing Disclosure Package, and the Prospectus that have not been described as required
under the Securities Act and the Securities Act Regulations.
2.28. Board
of Directors. The Board of Directors of the Company is comprised of the persons set forth under the heading of the Pricing Prospectus
and the Prospectus captioned “Management.” The qualifications of the persons serving as board members and the overall composition
of the board comply with the Exchange Act Regulations, the Sarbanes-Oxley Act of 2002 and the rules promulgated thereunder (the “Sarbanes-Oxley
Act”) applicable to the Company and the listing rules of the Exchange. At least one member of the Audit Committee of the Board
of Directors of the Company qualifies as an “audit committee financial expert,” as such term is defined under Regulation S-K
and the listing rules of the Exchange. In addition, at least a majority of the persons serving on the Board of Directors qualify as “independent,”
as defined under the listing rules of the Exchange.
2.29. Sarbanes-Oxley Compliance.
2.29.1. Disclosure
Controls. The Company has developed and currently maintains disclosure controls and procedures that comply in all material respects
with Rule 13a-15 or 15d-15 under the Exchange Act Regulations, and except as disclosed in the Registration Statement, the Pricing Disclosure
Package, and the Prospectus, such controls and procedures are effective to ensure that all material information concerning the Company
will be made known on a timely basis to the individuals responsible for the preparation of the Company’s Exchange Act filings and
other public disclosure documents.
2.29.2. Compliance.
The Company is and at the Applicable Time and on the Closing Date will be, in material compliance with the provisions of the Sarbanes-Oxley
Act applicable to it, and has implemented or will implement such programs and has taken reasonable steps to ensure the Company’s
future compliance (not later than the relevant statutory and regulatory deadlines therefor) with all of the material provisions of the
Sarbanes-Oxley Act.
2.30. Accounting
Controls. The Company and its Subsidiaries maintain systems of “internal control over financial reporting” (as defined
under Rules 13a-15 and 15d-15 under the Exchange Act Regulations) that comply in all material respects with the requirements of the Exchange
Act and have been designed by, or under the supervision of, their respective principal executive and principal financial officers, or
persons performing similar functions, to provide reasonable assurance regarding the reliability of financial reporting and the preparation
of financial statements for external purposes in accordance with GAAP, including, but not limited to, internal accounting controls sufficient
to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations;
(ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset
accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and
(iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken
with respect to any differences. Except as disclosed in the Registration Statement, the Pricing Disclosure Package, and the Prospectus,
the Company is not aware of any material weaknesses in its internal controls. The Company’s auditors and the Audit Committee of
the Board of Directors of the Company have been advised of: (i) all significant deficiencies and material weaknesses in the design or
operation of internal controls over financial reporting which are known to the Company’s management and that have adversely affected
or are reasonably likely to adversely affect the Company’s ability to record, process, summarize, and report financial information;
and (ii) any fraud known to the Company’s management, whether or not material, that involves management or other employees who have
a significant role in the Company’s internal controls over financial reporting.
2.31. No
Investment Company Status. The Company is not and, after giving effect to the Offering and the application of the proceeds thereof
as described in the Registration Statement, the Pricing Disclosure Package, and the Prospectus, will not be, required to register as an
“investment company,” as defined in the Investment Company Act of 1940, as amended.
2.32. No
Labor Disputes. No labor dispute with the employees of the Company or any of its Subsidiaries exists or, to the knowledge of the Company,
is imminent. The Company is not aware that any officer, key employee, or significant group of employees of the Company plans to terminate
employment with the Company.
2.33. Intellectual
Property Rights. The Company and each of its Subsidiaries owns or possesses or has valid rights to use all patents, patent
applications, trademarks, service marks, trade names, trademark registrations, service mark registrations, copyrights, licenses,
inventions, trade secrets, and similar rights (“Intellectual Property Rights”) and necessary for the conduct of
the business of the Company and each of its Subsidiaries as currently carried on and as described in the Registration Statement, the
Pricing Disclosure Package, and the Prospectus. To the knowledge of the Company, no action or use by the Company or any of its
Subsidiaries necessary for the conduct of its business as currently carried on and as described in the Registration Statement and
the Prospectus will involve or give rise to any infringement of, or license or similar fees for, any Intellectual Property Rights of
others. Neither the Company nor any of its Subsidiaries has received any notice alleging any such infringement, fee, or conflict
with asserted Intellectual Property Rights of others. Except as would not reasonably be expected to result, individually or in the
aggregate, in a Material Adverse Change: (A) to the knowledge of the Company, there is no infringement, misappropriation, or
violation by third parties of any of the Intellectual Property Rights owned by the Company; (B) there is no pending or, to the
knowledge of the Company, threatened action, suit, proceeding, or claim by others challenging the rights of the Company in or to any
such Intellectual Property Rights, and the Company is unaware of any facts which would form a reasonable basis for any such claim,
that would, individually or in the aggregate, together with any other claims in this Section 2.33, reasonably be expected to
result in a Material Adverse Change; (C) the Intellectual Property Rights owned by the Company and, to the knowledge of the Company,
the Intellectual Property Rights licensed to the Company have not been adjudged by a court of competent jurisdiction invalid or
unenforceable, in whole or in part, and there is no pending or, to the Company’s knowledge, threatened action, suit,
proceeding, or claim by others challenging the validity or scope of any such Intellectual Property Rights, and the Company is
unaware of any facts which would form a reasonable basis for any such claim that would, individually or in the aggregate, together
with any other claims in this Section 2.33, reasonably be expected to result in a Material Adverse Change; (D) there is no
pending or, to the Company’s knowledge, threatened action, suit, proceeding, or claim by others that the Company infringes,
misappropriates, or otherwise violates any Intellectual Property Rights or other proprietary rights of others, the Company has not
received any written notice of such claim and the Company is unaware of any other facts which would form a reasonable basis for any
such claim that would, individually or in the aggregate, together with any other claims in this Section 2.33, reasonably be
expected to result in a Material Adverse Change; and (E) to the Company’s knowledge, no employee of the Company is in or has
ever been in violation in any material respect of any term of any employment contract, patent disclosure agreement, invention
assignment agreement, non- competition agreement, non-solicitation agreement, nondisclosure agreement, or any restrictive covenant
to or with a former employer where the basis of such violation relates to such employee’s employment with the Company, or
actions undertaken by the employee while employed with the Company and could reasonably be expected to result, individually or in
the aggregate, in a Material Adverse Change. To the Company’s knowledge, all material technical information developed by and
belonging to the Company which has not been patented has been kept confidential. The Company is not a party to or bound by any
options, licenses, or agreements with respect to the Intellectual Property Rights of any other person or entity that are required to
be set forth in the Registration Statement, the Pricing Disclosure Package, and the Prospectus and are not described therein. The
Registration Statement, the Pricing Disclosure Package, and the Prospectus contain in all material respects the same description of
the matters set forth in the preceding sentence. None of the technology employed by the Company has been obtained or is being used
by the Company in violation of any contractual obligation binding on the Company or, to the Company’s knowledge, any of its
officers, directors, or employees, or otherwise in violation of the rights of any persons.
2.34. Taxes.
Each of the Company and its Subsidiaries has filed all returns (as hereinafter defined) required to be filed with taxing authorities
prior to the date hereof or has duly obtained extensions of time for the filing thereof. Each of the Company and its Subsidiaries
has paid all taxes (as hereinafter defined) shown as due on such returns that were filed and has paid all taxes imposed on or
assessed against the Company or such respective Subsidiary except those that are being contested in good faith or as would not have,
individually or in the aggregate, result in a Material Adverse Change. The provisions for taxes payable, if any, shown on the
financial statements filed with or as part of the Registration Statement are sufficient for all accrued and unpaid taxes, whether or
not disputed, and for all periods to and including the dates of such consolidated financial statements. Except as disclosed in
writing to the Underwriters, (i) no material issues have been raised (and are currently pending) by any taxing authority in
connection with any of the returns or taxes asserted as due from the Company or its Subsidiaries, and (ii) no waivers of statutes of
limitation with respect to the returns or collection of taxes have been given by or requested from the Company or its Subsidiaries.
To the Company’s knowledge, there are no tax liens against the assets, properties, or business of the Company or its
Subsidiaries. The term “taxes” means all federal, state, local, foreign and other net income, gross income, gross
receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll,
employment, excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties or other taxes, fees,
assessments, or charges of any kind whatever, together with any interest and any penalties, additions to tax or additional amounts
with respect thereto. The term “returns” means all returns, declarations, reports, statements, and other
documents required to be filed in respect to taxes.
2.35. ERISA
Compliance. The Company and any “employee benefit plan” (as defined under the Employee Retirement Income Security Act
of 1974, as amended, and the regulations and published interpretations thereunder (collectively, “ERISA”)) established
or maintained by the Company or its “ERISA Affiliates” (as defined below) are in compliance in all material respects with
ERISA. “ERISA Affiliate” means, with respect to the Company, any member of any group of organizations described in
Sections 414(b), (c), (m) or (o) of the Internal Revenue Code of 1986, as amended, and the regulations and published interpretations thereunder
(the “Code”) of which the Company is a member. No “reportable event” (as defined under ERISA) has occurred
or is reasonably expected to occur with respect to any “employee benefit plan” established or maintained by the Company or
any of its ERISA Affiliates. No “employee benefit plan” established or maintained by the Company or any of its ERISA Affiliates,
if such “employee benefit plan” were terminated, would have any “amount of unfunded benefit liabilities” (as defined
under ERISA). Neither the Company nor any of its ERISA Affiliates has incurred or reasonably expects to incur any material liability under
(i) Title IV of ERISA with respect to termination of, or withdrawal from, any “employee benefit plan” or (ii) Sections 412,
4971, 4975 or 4980B of the Code. Each “employee benefit plan” established or maintained by the Company or any of its ERISA
Affiliates that is intended to be qualified under Section 401(a) of the Code is so qualified and, to the knowledge of the Company, nothing
has occurred, whether by action or failure to act, which would cause the loss of such qualification.
2.36. Compliance with
Laws. Each of the Company and each Subsidiary: (A) is and at all times has been in compliance with all statutes, rules, or
regulations applicable to the business of the Company as currently conducted (“Applicable Laws”), except as could
not, individually or in the aggregate, reasonably be expected to have a Material Adverse Change; (B) has not received any warning
letter, untitled letter, or other correspondence or notice from any Governmental Entity alleging or asserting noncompliance with any
Applicable Laws or any Authorizations; (C) possesses all Authorizations and such Authorizations are valid and in full force and
effect and are not in violation of any term of any such Authorizations, except where the invalidity of such Authorizations or the
failure of such Authorizations to be in full force and effect would not result in a Material Adverse Change; (D) has not received
notice of any claim, action, suit, proceeding, hearing, enforcement, investigation, arbitration, or other action from any
Governmental Entity or third party alleging that any activity conducted by the Company is in violation of any Applicable Laws or
Authorizations and has no knowledge that any such Governmental Entity or third party is considering any such claim, litigation,
arbitration, action, suit, investigation, or proceeding; (E) has not received notice that any Governmental Entity has taken, is
taking or intends to take action to limit, suspend, modify, or revoke any Authorizations and has no knowledge that any such
Governmental Entity is considering such action; and (F) has filed, obtained, maintained, or submitted all reports, documents, forms,
notices, applications, records, claims, submissions and supplements or amendments as required by any Applicable Laws or
Authorizations and that all such reports, documents, forms, notices, applications, records, claims, submissions, and supplements or
amendments were complete and correct on the date filed (or were corrected or supplemented by a subsequent submission), except where
the failure to be so in compliance would not, individually or in the aggregate, result in a Material Adverse Change.
2.37. [Reserved].
2.38. Environmental
Laws. The Company is 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”), except where the failure to comply would not, singularly or in the aggregate,
result in a Material Adverse Change. 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,
to the Company’s knowledge, any other entity for whose acts or omissions the Company is or may otherwise be liable) upon any of
the property now or previously owned or leased by the Company, 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, except for any violation or liability which would not
have, singularly or in the aggregate with all such violations and liabilities, a Material Adverse Change; 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 has knowledge, except for any such disposal, discharge, emission,
or other release of any kind which would not have, singularly or in the aggregate with all such discharges and other releases, a Material
Adverse Change. In the ordinary course of business, the Company conducts periodic reviews of the effect of Environmental Laws on its business
and assets, in the course of which they identify and evaluate associated costs and liabilities (including, without limitation, any capital
or operating expenditures required for clean-up, closure of properties, or compliance with Environmental Laws or governmental permits
issued thereunder, any related constraints on operating activities and any potential liabilities to third parties). On the basis of such
reviews, the Company has reasonably concluded that such associated costs and liabilities would not have, singularly or in the aggregate,
a Material Adverse Change.
2.39. Title
to Property. Except as set forth in the Registration Statement, the Pricing Disclosure Package, and the Prospectus, the Company and
its Subsidiaries have good and marketable title in fee simple to, or have valid 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 do not, singly or in the aggregate, materially affect the value
of such property and do not interfere with the use made and proposed to be made of such property by the Company or its Subsidiaries; and
all of the leases and subleases material to the business of the Company and its Subsidiaries, considered as one enterprise, and under
which the Company or any of its Subsidiaries holds properties described in the Registration Statement, the Pricing Disclosure Package,
and the Prospectus, are, to the Company’s knowledge, in full force and effect, and neither the Company nor any Subsidiary has received
any notice of any material claim of any sort that has been asserted by anyone adverse to the rights of the Company or any Subsidiary under
any of the leases or subleases mentioned above, or affecting or questioning the rights of the Company or any Subsidiary to the continued
possession of the leased or subleased premises under any such lease or sublease.
2.40. Contracts
Affecting Capital. There are no transactions, arrangements, or other relationships between and/or among the Company, any of its affiliates
(as such term is defined in Rule 405 of the Securities Act Regulations) and any unconsolidated entity, including, but not limited to,
any structured finance, special purpose or limited purpose entity that could reasonably be expected to materially affect the Company’s
or its Subsidiaries’ liquidity or the availability of or requirements for their capital resources required to be described or incorporated
by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus which have not been described or incorporated
by reference as required.
2.41. Loans
to Directors or Officers. There are no outstanding loans, advances (except normal advances for business expenses in the ordinary course
of business) or guarantees or indebtedness by the Company or its Subsidiaries to or for the benefit of any of the officers or directors
of the Company, its Subsidiaries, or any of their respective family members, except as disclosed in the Registration Statement, the Pricing
Disclosure Package and the Prospectus.
2.42. Ineligible
Issuer. At the time of filing the Registration Statement and any post-effective amendment thereto, at the Effective Date and at
the time of any amendment thereto, at the earliest time thereafter that the Company or another offering participant made a bona fide
offer (within the meaning of Rule 164(h)(2) of the Securities Act Regulations) of the Public Securities and at the Effective Date,
the Company was not and is not an “ineligible issuer,” as defined in Rule 405, without taking account of any
determination by the Commission pursuant to Rule 405 that it is not necessary that the Company be considered an ineligible
issuer.
2.43. Smaller
Reporting Company. As of the time of filing of the Registration Statement, the Company was a “smaller reporting company,”
as defined in Rule 12b-2 of the Exchange Act Regulations.
2.44. Industry
Data. The statistical and market-related data included in each of the Registration Statement, the Pricing Disclosure Package, and
the Prospectus are based on or derived from sources that the Company reasonably and in good faith believes are reliable and accurate or
represent the Company’s good faith estimates that are made on the basis of data derived from such sources.
2.45. Electronic
Road Show. The Company has made available a Bona Fide Electronic Road Show in compliance with Rule 433(d)(8)(ii) of the Securities
Act Regulations such that no filing of any “road show” (as defined in Rule 433(h) of the Securities Act Regulations) is required
in connection with the Offering.
2.46. Margin
Securities. The Company owns no “margin securities” as that term is defined in Regulation U of the Board of Governors
of the Federal Reserve System (the “Federal Reserve Board”), and none of the proceeds of Offering will be used, directly
or indirectly, for the purpose of purchasing or carrying any margin security, for the purpose of reducing or retiring any indebtedness
which was originally incurred to purchase or carry any margin security or for any other purpose which might cause any of the Public Securities
to be considered a “purpose credit” within the meanings of Regulation T, U or X of the Federal Reserve Board.
2.47. Dividends
and Distributions. Except as disclosed in the Pricing Disclosure Package, Registration Statement, and the Prospectus, no Subsidiary
of the Company is currently prohibited or restricted, directly or indirectly, from paying any dividends to the Company, from making any
other distribution on such Subsidiary’s capital stock (to the extent that any such prohibition or restriction on dividends and/or
distributions would have a material effect to the Company), from repaying to the Company any loans or advances to such Subsidiary from
the Company or from transferring any of such Subsidiary’s property or assets to the Company or any other Subsidiary of the Company,
except as may otherwise be provided in current loan or mortgage-related documents.
2.48. Forward-Looking
Statements. No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange
Act) contained in the Registration Statement, the Pricing Disclosure Package, or the Prospectus has been made or reaffirmed without a
reasonable basis or has been disclosed other than in good faith.
2.49. Integration.
Neither the Company, nor any of its affiliates, nor any person acting on its or their behalf has, directly or indirectly, made any offers
or sales of any security or solicited any offers to buy any security, under circumstances that would cause the Offering to be integrated
with prior offerings by the Company for purposes of the Securities Act that would require the registration of any such securities under
the Securities Act.
2.50. Confidentiality
and Non-Competition. To the Company’s knowledge, no director, officer, key employee, or consultant of the Company or any Subsidiary
is subject to any confidentiality, non-disclosure, non- competition agreement or non-solicitation agreement with any employer (other than
the Company) or prior employer that could materially affect his or her ability to be and act in his or her respective capacity of the
Company or such Subsidiary or be expected to result in a Material Adverse Change.
2.51. Corporate
Records. The minute books of the Company have been made available to the Representative and Representative Counsel and such books
(i) contain minutes of all material meetings and actions of the Board of Directors (including each board committee) and stockholders of
the Company, and (ii) reflect all material transactions referred to in such minutes.
2.52. Diligence
Materials. The Company has provided to the Representative and Representative Counsel all materials required or necessary to respond
in all material respects to the diligence request submitted to the Company or Company Counsel by the Representative.
2.53. Stabilization.
Neither the Company nor, to its knowledge, any of its employees, directors, or stockholders (without the consent of the
Representative) has taken, directly or indirectly, any action designed to or that has constituted or that might reasonably be
expected to cause or result in, under Regulation M of the Exchange Act, or otherwise, stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of the Public Securities.
2.54. As
used in this Agreement, references to matters being “material” with respect to the Company shall mean a material event,
change, condition, status, or effect related to the condition (financial or otherwise), properties, assets (including intangible assets),
liabilities, business, prospects, operations, or results of operations of the Company either individually or taken as a whole, as the
context requires.
2.55. As
used in this Agreement, the term “knowledge of the Company” (or similar language) shall mean the knowledge of the officers
and directors of the Company.
3. COVENANTS OF THE COMPANY.
The Company covenants and agrees as follows:
3.1. Amendments to
Registration Statement. The Company shall deliver to the Representative, at least one (1) Business Day (or such shorter time
mutually agreed by the parties hereto) prior to filing, any amendment or supplement to the Registration Statement or Prospectus
proposed to be filed after the Effective Date and not file any such amendment or supplement to which the Representative shall
reasonably object in writing.
3.2. Federal Securities Laws.
3.2.1. Compliance.
The Company, subject to Section 3.2.2, shall comply with the requirements of Rule 430A of the Securities Act Regulations, and
will notify the Representative promptly, and confirm the notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective or any amendment or supplement to the Prospectus shall have been filed; (ii) of its
receipt of any comments from the Commission; (iii) of any request by the Commission for any amendment to the Registration Statement
or any amendment or supplement to the Prospectus or for additional information; (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or any post-effective amendment or of any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Public
Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes
or of any examination pursuant to Section 8(d) or 8(e) of the Securities Act concerning the Registration Statement; or (v) if the
Company becomes the subject of a proceeding under Section 8A of the Securities Act in connection with the Offering of the Public
Securities. The Company shall effect all filings required under Rule 424(b) of the Securities Act Regulations, in the manner and
within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and shall take such steps as it deems necessary
to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the
Commission and, in the event that it was not, it will promptly file such prospectus. The Company shall use its best efforts to
prevent the issuance of any stop order, prevention or suspension and, if any such order is issued, to obtain the lifting thereof at
the earliest possible moment.
3.2.2. Continued
Compliance. The Company shall comply with the Securities Act, the Securities Act Regulations, the Exchange Act, and the Exchange Act
Regulations so as to permit the completion of the distribution of the Public Securities as contemplated in this Agreement and in the Registration
Statement, the Pricing Disclosure Package and the Prospectus. If at any time when a prospectus relating to the Public Securities is (or,
but for the exception afforded by Rule 172 of the Securities Act Regulations (“Rule 172”), would be) required by the
Securities Act to be delivered in connection with sales of the Public Securities, any event shall occur or condition shall exist as a
result of which it is necessary, in the opinion of Representative Counsel or Company Counsel, to (i) amend the Registration Statement
in order that the Registration Statement will not include an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading; (ii) amend or supplement the Pricing Disclosure Package
or the Prospectus in order that the Pricing Disclosure Package or the Prospectus, as the case may be, will not include any untrue statement
of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in light of the circumstances
existing at the time it is delivered to a purchaser; or (iii) amend the Registration Statement or amend or supplement the Pricing Disclosure
Package or the Prospectus, as the case may be, in order to comply with the requirements of the Securities Act or the Securities Act Regulations,
the Company will promptly (A) give the Representative notice of such event; (B) prepare any amendment or supplement as may be necessary
to correct such statement or omission or to make the Registration Statement, the Pricing Disclosure Package, or the Prospectus comply
with such requirements and, a reasonable amount of time prior to any proposed filing or use, furnish the Representative with copies of
any such amendment or supplement; and (C) file with the Commission any such amendment or supplement; provided that the Company
shall not file or use any such amendment or supplement to which the Representative or Representative Counsel shall reasonably object.
The Company will furnish to the
Underwriters such number of copies of such amendment or supplement as the Underwriters may reasonably request. The Company shall give
the Representative notice of its intention to make any such filing from the Applicable Time until the later of the Closing Date and the
exercise in full or expiration of the Over-allotment Option specified in Section 1.2 hereof and will furnish the Representative
with copies of the related document(s) a reasonable amount of time prior to such proposed filing, as the case may be, and will not file
or use any such document to which the Representative or Representative Counsel shall reasonably object.
3.2.3. Exchange
Act Registration. For a period of three (3) years after the date of this Agreement, the Company shall use its reasonable best efforts
to maintain the registration of the Common Stock and Warrants under the Exchange Act. For a period of two (2) years after the date of
this Agreement, the Company shall not deregister the Common Stock or Warrants under the Exchange Act without the prior written consent
of the Representative.
3.2.4. Free
Writing Prospectuses. The Company agrees that, unless it obtains the prior written consent of the Representative, it shall not make
any offer relating to the Public Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute
a “free writing prospectus,” or a portion thereof, required to be filed by the Company with the Commission or retained by
the Company under Rule 433; provided that the Representative shall be deemed to have consented to each Issuer General Use Free
Writing Prospectus set forth in Schedule 2-B. The Company represents that it has treated or agrees that it will treat each such
free writing prospectus consented to, or deemed consented to, by the Representative as an “issuer free writing prospectus,”
as defined in Rule 433, and that it has complied and will comply with the applicable requirements of Rule 433 with respect thereto, including
timely filing with the Commission where required, legending, and record keeping. 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 would
conflict with the information contained in the Registration Statement or included or would include an untrue statement of a material fact
or omitted or would omit to state a material fact necessary in order to make the statements therein, in light of the circumstances existing
at that subsequent time, not misleading, the Company will promptly notify the Representative and will promptly amend or supplement, at
its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement, or omission.
3.2.5. Testing-the-Waters
Communications. If at any time following the distribution of any Written Testing-the-Waters Communication there occurred or occurs
an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement
of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in light of the
circumstances existing at that subsequent time, not misleading, the Company shall promptly notify the Representative and shall promptly
amend or supplement, at its own expense, such Written Testing- the-Waters Communication to eliminate or correct such untrue statement
or omission.
3.3. Delivery
to the Underwriters of Registration Statements. The Company has delivered or made available or shall deliver or make available to
the Representative and Representative Counsel, without charge, conformed copies of the Registration Statement as originally filed and
each amendment thereto (including exhibits filed therewith) and signed copies of all consents and certificates of experts, and will also
deliver to each Underwriter, without charge, a conformed copy of the Registration Statement as originally filed and each amendment thereto
(without exhibits) upon receipt of a written request therefor from such Underwriter. The copies of the Registration Statement and each
amendment thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by Regulation S-T.
3.4. Delivery
to the Underwriters of Prospectuses. The Company has delivered or made available or will deliver or make available to each Underwriter,
without charge, as many copies of each Preliminary Prospectus as such Underwriter reasonably requested, and the Company hereby consents
to the use of such copies for purposes permitted by the Securities Act. The Company will furnish to each Underwriter, without charge,
during the period when a prospectus relating to the Public Securities is (or, but for the exception afforded by Rule 172 of the Securities
Act Regulations, would be) required to be delivered under the Securities Act, such number of copies of the Prospectus (as amended or supplemented)
as such Underwriter may reasonably request. The Prospectus and any amendments or supplements thereto furnished to the Underwriters will
be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted
by Regulation S-T.
3.5. Effectiveness and
Events Requiring Notice to the Representative. The Company shall use its best efforts to cause the Registration Statement to
remain effective with a current prospectus for at least nine (9) months after the Applicable Time, and shall notify the
Representative promptly and confirm the notice in writing: (i) of the effectiveness of the Registration Statement and any amendment
thereto; (ii) of the issuance by the Commission of any stop order or of the initiation, or the threatening, of any proceeding for
that purpose; (iii) of the issuance by any state securities commission of any proceedings for the suspension of the qualification of
the Public Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that
purpose; (iv) of the mailing and delivery to the Commission for filing of any amendment or supplement to the Registration Statement
or the Prospectus; (v) of the receipt of any comments or request for any additional information from the Commission; and (vi) of the
happening of any event during the period described in this Section 3.5 that, in the judgment of the Company, makes any
statement of a material fact made in the Registration Statement, the Pricing Disclosure Package, or the Prospectus untrue or that
requires the making of any changes in (a) the Registration Statement in order to make the statements therein not misleading, or (b)
in the Pricing Disclosure Package or the Prospectus in order to make the statements therein, in light of the circumstances under
which they were made, not misleading. If the Commission or any state securities commission shall enter a stop order or suspend such
qualification at any time, the Company shall use its commercially reasonable efforts to obtain promptly the lifting of such
order.
3.6. Review
of Financial Statements. For a period of three (3) years after the date of this Agreement, the Company, at its expense, shall cause
its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements
for each of the three fiscal quarters immediately preceding the announcement of any quarterly financial information.
3.7. Listing.
The Company shall use its reasonable best efforts to maintain the listing of the Securities on the Exchange until at least three (3) years
after the date of this Agreement.
3.8. Financial
Public Relations. Within six (6) months from the Effective Date, the Company shall have retained a financial public relations firm
reasonably acceptable to the Representative and the Company, which firm shall be experienced in assisting issuers in initial public offerings
of securities and in their relations with their security holders, and shall retain such firm or another firm reasonably acceptable to
the Representative for a period of not less than two (2) years after the Effective Date.
3.9. Reports to the Representative.
3.9.1. Periodic
Reports, etc. For a period of three (3) years after the date of this Agreement, the Company shall furnish or make available to
the Representative copies of such financial statements and other periodic and special reports as the Company from time to time
furnishes generally to holders of any class of its securities and also promptly furnish to the Representative: (i) a copy of each
periodic report the Company shall be required to file with the Commission under the Exchange Act and the Exchange Act Regulations;
(ii) a copy of every press release and every news item and article with respect to the Company or its affairs which was released by
the Company; (iii) a copy of each Form 8-K prepared and filed by the Company; (iv) a copy of each registration statement filed by
the Company under the Securities Act; (v) a copy of each report or other communication furnished to stockholders; and (vi) such
additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the
Representative may from time to time reasonably request. Documents filed with the Commission pursuant to its EDGAR system or press
releases shall be deemed to have been delivered to the Representative pursuant to this Section 3.9.1. Any documents not filed
with the Commission pursuant to its EDGAR system shall be delivered to jrallo@efhuttongroup.com, with a copy to
dboral@efhuttongroup.com.
3.9.2. Transfer
Agent; Transfer Sheets. For a period of three (3) years after the date of this Agreement, the Company shall retain a transfer agent
and registrar acceptable to the Representative (the “Transfer Agent”) and shall furnish to the Representative at the
Company’s sole cost and expense such transfer sheets of the Company’s securities as the Representative may reasonably request,
including the daily and monthly consolidated transfer sheets of the Transfer Agent and DTC. Vstock Transfer, LLC is acceptable to the
Representative to act as Transfer Agent for the shares of Common Stock and Warrants.
3.9.3. Trading
Reports. For a period of three (3) years after the date of this Agreement, during such time as any of the Public Securities are listed
on the Exchange, the Company shall provide to the Representative, at the Company’s expense, such reports published by the Exchange
relating to price trading of the Public Securities, as the Representative shall reasonably request.
3.10. Payment of Expenses.
3.10.1. General
Expenses Related to the Offering. The Company hereby agrees to pay on each of the Closing Date and the Option Closing Date, if
any, to the extent not paid at the Closing Date, all expenses related to the Offering or otherwise incident to the performance of
the obligations of the Company under this Agreement, including, but not limited to: (a) all filing fees and communication expenses
relating to the registration of the Public Securities and with the Commission; (b) all Public Filing System filing fees associated
with the review of the Offering by FINRA; (c) all fees and expenses relating to the listing of such Public Securities and on the
Exchange and such other stock exchanges as the Company and the Representative together determine, including any fees charged by the
DTC; (d) all fees, expenses and disbursements relating to background checks of the Company’s officers and directors; (e) all
fees, expenses and disbursements relating to the registration or qualification of the Public Securities under the “blue
sky” securities laws of such states and other jurisdictions as the Representative may reasonably designate; (f) all fees,
expenses and disbursements relating to the registration, qualification, or exemption of the Public Securities under the securities
laws of such foreign jurisdictions as the Representative may reasonably designate; (g) the costs of all mailing and printing of the
underwriting documents (including, without limitation, the Underwriting Agreement, any Blue Sky Surveys and, if appropriate, any
Agreement Among Underwriters, Selected Dealers’ Agreement, Underwriters’ Questionnaire and Power of Attorney),
Registration Statements, Prospectuses, and all amendments, supplements, and exhibits thereto and as many preliminary and final
Prospectuses as the Representative may reasonably deem necessary; (h) the costs and expenses of a public relations firm; (i) the
costs of preparing, printing, and delivering certificates representing the Public Securities; (j) fees and expenses of the transfer
agent for the shares of Common Stock; (k) fees and expenses of the warrant agent under the Warrant Agent Agreement; (l) stock
transfer and/or stamp taxes, if any, payable upon the transfer of securities from the Company to the Underwriters; (m) the costs
associated with one set of bound volumes of the public offering materials as well as commemorative mementos and lucite tombstones,
each of which the Company or its designee shall provide within a reasonable time after the Closing Date in such quantities as the
Representative may reasonably request; (n) the fees and expenses of the Company’s accountants; (o) the fees and expenses of
the Company’s legal counsel and other agents and representatives; (p) the fees and expenses of Representative Counsel; (q) the
cost associated with the Underwriters’ use of Ipreo’s book-building, prospectus tracking and compliance software for the
Offering; (r) to the extent approved by the Company in writing, the costs associated with post-Closing advertising the Offering in
the national editions of the Wall Street Journal and New York Times; and (s) the Underwriters’ actual accountable expenses for
the Offering, including, without limitation related to the “road show.” Notwithstanding the foregoing, the
Company’s obligations to reimburse the Representative for any out-of- pocket expenses actually incurred as set forth in the
preceding sentence shall not exceed One Hundred Thousand Dollars ($100,000) in the aggregate for legal fees and related expenses.
Additionally, one percent (1.0%) of the gross proceeds of the Offering shall be provided to EF Hutton for nonaccountable expenses.
The Representative may deduct from the net proceeds of the Offering payable to the Company on the Closing Date, or the Option
Closing Date, if any, the expenses set forth herein to be paid by the Company to the Underwriters, less the Advance (as such term is
defined in Section 8.3 hereof).
3.10.2.
Tail Period. EF Hutton shall be entitled to a cash fee equal to seven percent (7.0%) of the gross proceeds received by the Company from
the sale of any equity, debt and/or equity derivative instruments to any investor actually introduced by EF Hutton to the Company during
the Engagement Period, in connection with any public or private financing or capital raise (each a “Tail Financing”), and
such Tail Financing is consummated at any time during the Engagement Period or within the six (6) month period following the expiration
or termination of the Engagement Period (the “Tail Period”), provided that such Tail Financing is by a party actually introduced
to the Company in an offering in which the Company has direct knowledge of such party’s participation.
“Engagement
period” means the period beginning on November 1, 2023 and ending 60 days thereafter. If the Company has not consummated the Offering
by the thirty (30) day anniversary of November 1, 2023, the Company may terminate that certain engagement letter agreement by the Company
and EF Hutton by providing ten (10) day’s written notice of such termination.
3.11.
Application of Net Proceeds. The Company shall apply the net proceeds from the Offering received by it in a manner consistent with
the application thereof described under the caption “Use of Proceeds” in the Registration Statement, the Pricing Disclosure
Package and the Prospectus.
3.12.
Delivery of Earnings Statements to Security Holders. The Company shall make generally available to its security holders as soon as
practicable, but not later than the first day of the fifteenth (15th) full calendar month following the date of this Agreement, an earnings
statement (which need not be certified by an independent registered public accounting firm unless required by the Securities Act or the
Securities Act Regulations, but which shall satisfy the provisions of Rule 158(a) under Section 11(a) of the Securities Act) covering
a period of at least twelve (12) consecutive months beginning after the date of this Agreement.
3.13.
Stabilization. Neither the Company nor, to its knowledge, any of its employees, directors, or stockholders has taken or shall take,
directly or indirectly, any action designed to or that has constituted or that might reasonably be expected to cause or result in, under
Regulation M of the Exchange Act, or otherwise, stabilization, or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Public Securities.
3.14.
Internal Controls. For a period of one (1) year after the date of this Agreement, the Company shall maintain a system of internal
accounting controls sufficient to provide reasonable assurances that: (i) transactions are executed in accordance with management’s
general or specific authorization; (ii) transactions are recorded as necessary in order to permit preparation of financial statements
in accordance with GAAP and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s
general or specific authorization; and (iv) the recorded accountability for assets is compared with existing assets at reasonable intervals
and appropriate action is taken with respect to any differences.
3.15.
Accountants. As of the date of this Agreement, the Company has retained an independent registered public accounting firm, as required
by the Securities Act and the Securities Act Regulations and the Public Company Accounting Oversight Board, reasonably acceptable to
the Representative, and the Company shall continue to retain a nationally recognized independent registered public accounting firm for
a period of at least three (3) years after the date of this Agreement. The Representative acknowledges that WWC, P.C. is acceptable to
the Representative.
3.16.
FINRA. For a period of ninety (90) days from the later of the Closing Date or the Option Closing Date, the Company shall advise the
Representative (who shall make an appropriate filing with FINRA) if it is or becomes aware that (i) any officer or director of the Company,
(ii) any beneficial owner of five percent (5%) or more of any class of the Company’s securities, or (iii) any beneficial owner
of the Company’s unregistered equity securities which were acquired during the one hundred eighty (180) days immediately preceding
the filing of the Registration Statement is or becomes an affiliate or associated person of a FINRA member participating in the Offering
(as determined in accordance with the rules and regulations of FINRA).
3.17.
No Fiduciary Duties. The Company acknowledges and agrees that the Underwriters’ responsibility to the Company is solely contractual
in nature and that none of the Underwriters or their affiliates or any selling agent shall be deemed to be acting in a fiduciary capacity,
or otherwise owes any fiduciary duty to the Company or any of its affiliates in connection with the Offering and the other transactions
contemplated by this Agreement.
3.18.
Company Lock-Up Agreements. The Company, on behalf of itself and any successor entity, agrees that, without the prior written consent
of the Representative, it will not, for a period of ninety (90) days after the date of this Agreement (the “Lock-Up Period”),
(i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option, or contract to sell, grant any
option, right, or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of capital stock
of the Company or any securities convertible into or exercisable or exchangeable for shares of capital stock of the Company; (ii) file
or cause to be filed any registration statement with the Commission relating to the offering of any shares of capital stock of the Company
or any securities convertible into or exercisable or exchangeable for shares of capital stock of the Company other than a registration
statement on Form S-4 or S-8; (iii) complete any offering of debt securities of the Company, other than entering into a line of credit
or senior credit facility with a traditional bank or other lending institution; or (iv) enter into any swap or other arrangement that
transfers to another, in whole or in part, any of the economic consequences of ownership of capital stock of the Company, whether any
such transaction described in clause (i), (ii), (iii), or (iv) above is to be settled by delivery of shares of capital stock of the Company
or such other securities, in cash or otherwise.
The
restrictions contained in this Section 3.18 shall not apply to (i) the Primary Securities to be sold hereunder; (ii) the issuance
by the Company of shares of Common Stock upon the exercise of a stock option or warrant or the conversion of a security, in each case
outstanding on the date hereof, provided that such options, warrants, and securities are disclosed in the Registration Statement,
the Pricing Disclosure Package, or the Prospectus and have not been amended since the date of this Agreement to increase the number of
such securities or to decrease the exercise price, exchange price, or conversion price of such securities or to extend the term of such
securities, (iii) the issuance of shares of Common Stock issued as part of the purchase price in connection with the acquisitions or
strategic transactions, provided such issuance is approved by the disinterested directors of the Company, or (iv) the issuance
by the Company of any shares of Common Stock or standard options to purchase Common Stock to directors, officers, or employees of the
Company in their capacity as such pursuant to an Approved Stock Plan (as defined below). “Approved Stock Plan” means
any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof
pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director
for services provided to the Company in their capacity as such.
3.19.
Release of D&O Lock-up Period. If the Representative, in its sole discretion, agrees to release or waive the restrictions set
forth in the Lock-Up Agreements described in Section 2.25 hereof for an officer or director of the Company and provides the Company
with notice of the impending release or waiver at least three (3) Business Days before the effective date of the release or waiver, the
Company agrees to announce the impending release or waiver by a press release substantially in the form of Exhibit C hereto through
a major news service at least two (2) Business Days before the effective date of the release or waiver.
3.20.
Blue Sky Qualifications. The Company shall use its best efforts, in cooperation with the Underwriters, if necessary, to qualify the
Public Securities for offering and sale under the applicable securities laws of such states and other jurisdictions (domestic or foreign)
as the Representative may designate and to maintain such qualifications in effect so long as required to complete the distribution of
the Public Securities; provided, however, that the Company shall not be obligated to file any general consent to service
of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or
to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject.
3.21.
Reporting Requirements. The Company, during the period when a prospectus relating to the Public Securities is (or, but for the exception
afforded by Rule 172, would be) required to be delivered under the Securities Act, will file all documents required to be filed with
the Commission pursuant to the Exchange Act within the time periods required by the Exchange Act and Exchange Act Regulations. Additionally,
the Company shall report the use of proceeds from the issuance of the Public Securities as may be required under Rule 463 under the Securities
Act Regulations.
3.22.
Press Releases. Prior to the Closing Date and any Option Closing Date, the Company shall not issue any press release or other communication
directly or indirectly or hold any press conference with respect to the Company, its condition, financial, or otherwise, or earnings,
business affairs, or business prospects (except for routine oral marketing communications in the ordinary course of business and consistent
with the past practices of the Company and of which the Representative is notified), without the prior written consent of the Representative,
which consent shall not be unreasonably withheld, unless in the judgment of the Company and its counsel, and after notification to the
Representative, such press release or communication is required by law.
3.23.
Sarbanes-Oxley. For a period of one (1) year after the date of this Agreement, the Company shall at all times comply in all material
respects with all applicable provisions of the Sarbanes-Oxley Act in effect from time to time.
3.24.
IRS Forms. If requested by the Representative, the Company shall deliver to each Underwriter (or its agent), prior to or at the Closing
Date, a properly completed and executed Internal Revenue Service (“IRS”) Form W- 9 or an IRS Form W-8, as appropriate,
together with all required attachments to such form.
3.25.
Warrant Agent. For so long as the Warrants are outstanding, the Company will maintain the Warrant Agent Agreement in full force and
effect with Vstock Transfer, LLC or a transfer agent of similar competence and quality. The Pre-Funded Warrants, and, if applicable,
Option Pre-Funded Warrants, will be issued in accordance with the Warrant Agent Agreement.
4. CONDITIONS OF UNDERWRITERS’ OBLIGATIONS.
The
obligations of the Underwriters to purchase and pay for the Public Securities, as provided herein, shall be subject to (i) the continuing
accuracy of the representations and warranties of the Company as of the date hereof and as of each of the Closing Date and the Option
Closing Date, if any; (ii) the accuracy of the statements of officers of the Company made pursuant to the provisions hereof; (iii) the
performance by the Company of its obligations hereunder; and (iv) the following conditions:
4.1. Regulatory Matters.
4.1.1.
Effectiveness of Registration Statement; Rule 430A Information. The Registration Statement has become effective not later than
5:30 p.m., Eastern time, on the date of this Agreement or such later date and time as shall be consented to in writing by the Representative,
and, at each of the Closing Date and any Option Closing Date, no stop order suspending the effectiveness of the Registration Statement
or any post- effective amendment thereto shall have been issued under the Securities Act, no order preventing or suspending the use of
any Preliminary Prospectus or the Prospectus shall have been issued and no proceedings for any of those purposes shall have been instituted
or are pending or, to the Company’s knowledge, contemplated by the Commission. The Company has complied with each request (if any)
from the Commission for additional information. A prospectus containing the Rule 430A Information shall have been filed with the Commission
in the manner and within the time frame required by Rule 424(b) under the Securities Act Regulations (without reliance on Rule 424(b)(8))
or a post-effective amendment providing such information shall have been filed with, and declared effective by, the Commission in accordance
with the requirements of Rule 430A under the Securities Act Regulations.
4.1.2.
FINRA Clearance. On or before the date of this Agreement, the Representative shall have received clearance from FINRA as to the
amount of compensation allowable or payable to the Underwriters as described in the Registration Statement.
4.1.3.
Exchange Clearance. On the Closing Date, the Common Stock shall have been approved for listing on the Exchange, subject only to
official notice of issuance.
4.2. Company Counsel Matters.
4.2.1.
Closing Date Opinion of Counsel. On the Closing Date, the Representative shall have received the favorable opinion and negative
assurance letter of Sichenzia Ross Ference Carmel LLP (“Company Counsel”), counsel to the Company, dated the Closing
Date and addressed to the Representative, in form and substance satisfactory to the Representative.
4.2.2.
Option Closing Date Opinions of Counsel. On the Option Closing Date, if any, the Representative shall have received the favorable
opinion and negative assurance letter of Company Counsel listed in Section 4.2.1, dated the Option Closing Date, addressed to
the Representative and in form and substance reasonably satisfactory to the Representative, confirming as of the Option Closing Date,
the statements made by such counsel in its opinion delivered on the Closing Date.
4.2.3.
Reliance. The opinion of Company Counsel shall include a statement to the effect that it may be relied upon by Representative
Counsel in its opinion delivered to the Underwriters.
4.3. Comfort Letters.
4.3.1.
Comfort Letter. At the time this Agreement is executed the Representative shall have received a cold comfort letter from the Auditors
containing statements and information of the type customarily included in accountants’ comfort letters with respect to the financial
statements and certain financial information contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus,
addressed to the Representative and in form and substance satisfactory in all respects to the Representative and to Representative Counsel
from the Auditors, dated as of the date of this Agreement.
4.3.2.
Bring-down Comfort Letter. At each of the Closing Date and the Option Closing Date, if any, the Representative shall have received
from the Auditors a letter, dated as of the Closing Date or the Option Closing Date, as applicable, to the effect that the Auditors reaffirms
the statements made in the letter furnished pursuant to Section 4.3.1.
4.4. Officers’ Certificates.
4.4.1.
Officers’ Certificate. The Company shall have furnished to the Representative a certificate, dated the Closing Date and
any Option Closing Date (if such date is other than the Closing Date), of its Chief Executive Officer or President, and its Chief Financial
Officer stating that on behalf of the Company and not in an individual capacity that (i) such officers have examined the Registration
Statement, the Pricing Disclosure Package, any Issuer Free Writing Prospectus, and the Prospectus and, in their opinion, the Registration
Statement and each amendment thereto after the Effective Date, as of the Applicable Time and as of the Closing Date (or any Option Closing
Date if such date is other than the Closing Date) did not include any untrue statement of a material fact and did not omit to state a
material fact required to be stated therein or necessary to make the statements therein not misleading, and the Pricing Disclosure Package,
as of the Applicable Time and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), any Issuer
Free Writing Prospectus as of its date and as of the Closing Date (or any Option Closing Date if such date is other than the Closing
Date), the Prospectus and each amendment or supplement thereto after the Effective Date, as of the respective date thereof and as of
the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order
to make the statements therein, in light of the circumstances in which they were made, not misleading, (ii) to their knowledge after
reasonable investigation, as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), the representations
and warranties of the Company in this Agreement are 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 the Closing Date (or any Option Closing Date if such date
is other than the Closing Date), and (iii) there has not been, subsequent to the date of the most recent audited financial statements
included in the Pricing Disclosure Package, a Material Adverse Change.
4.4.2.
Secretary’s Certificate. At each of the Closing Date and the Option Closing Date, if any, the Representative shall have
received a certificate of the Company signed by the Secretary of the Company, dated the Closing Date or the Option Closing Date, as the
case may be, respectively, certifying on behalf of the Company and not in an individual capacity: (i) that each of the Charter and Bylaws
is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of
Directors relating to the Offering are in full force and effect and have not been modified; (iii) as to the accuracy and completeness
of all correspondence between the Company or its counsel and the Commission; and (iv) as to the incumbency of the officers of the Company.
The documents referred to in such certificate shall be attached to such certificate.
4.5.
No Material Changes. Prior to and on each of the Closing Date and each Option Closing Date, if any: (i) there shall have been no
Material Adverse Change in the condition or prospects or the business activities, financial or otherwise, of the Company from the
latest dates as of which such condition is set forth in the Registration Statement, the Pricing Disclosure Package and the
Prospectus; (ii) no action, suit or proceeding, at law or in equity, shall have been pending or threatened against the Company or
any Insider before or by any court or federal or state commission, board or other administrative agency wherein an unfavorable
decision, ruling or finding may reasonably be expected to cause a Material Adverse Change, except as set forth in the Registration
Statement, the Pricing Disclosure Package and the Prospectus; (iii) no stop order shall have been issued under the Securities Act
and no proceedings therefor shall have been initiated or threatened by the Commission; and (iv) the Registration Statement, the
Pricing Disclosure Package and the Prospectus and any amendments or supplements thereto shall contain all material statements which
are required to be stated therein in accordance with the Securities Act and the Securities Act Regulations and shall conform in all
material respects to the requirements of the Securities Act and the Securities Act Regulations, and neither the Registration
Statement, the Pricing Disclosure Package nor the Prospectus nor any amendment or supplement thereto shall contain any untrue
statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not misleading.
4.6.
No Material Misstatement or Omission. The Underwriters shall not have discovered and disclosed to the Company on or prior to the
Closing Date and any Option Closing Date that the Registration Statement or any amendment or supplement thereto contains an untrue statement
of a fact which, in the opinion of Representative Counsel, 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 Registration
Statement, the Pricing 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 Representative Counsel, is material or omits to state any fact which, in
the opinion of Representative Counsel, is material and is necessary in order to make the statements, in the light of the circumstances
under which they were made, not misleading.
4.7.
Corporate Proceedings. All corporate proceedings and other legal matters incident to the authorization, form and validity of each
of this Agreement, the Public Securities, the Registration Statement, the Pricing Disclosure Package, each Issuer Free Writing Prospectus,
if any, and the Prospectus and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably
satisfactory in all material respects to Representative Counsel, 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.
4.8.
Lock-Up Agreements. On or before the date of this Agreement, the Company shall have delivered to the Representative executed copies
of the Lock-Up Agreements from each of the persons listed in Schedule 3 hereto.
4.9.
Warrant Agent Agreement. On or before the date of this Agreement, the Company shall have entered into a Warrant Agent Agreement between
the Company and Vstock Transfer, LLC , as warrant agent with respect to the Warrants, in the form filed as an exhibit to the Registration
Statement (the “Warrant Agent Agreement”), or if applicable, as otherwise directed by the Underwriters.
4.10.
Additional Documents. At the Closing Date and at each Option Closing Date (if any) Representative Counsel shall have been furnished
with such documents and opinions as they may require for the purpose of enabling Representative Counsel to deliver an opinion to the
Underwriters, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Public Securities as herein
contemplated shall be satisfactory in form and substance to the Representative and Representative Counsel.
5. INDEMNIFICATION.
5.1. Indemnification of the Underwriters.
5.1.1.
General. The Company shall indemnify and hold harmless each Underwriter, its affiliates and each of its and their respective directors,
officers, members, employees, representatives, partners, shareholders, affiliates, counsel, and agents and each person, if any, who controls
any such 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 and all loss, liability,
claim, damage, and expense whatsoever (including but not limited to any and all legal or other expenses reasonably incurred in investigating,
preparing, or defending against any litigation, commenced or threatened, or any claim whatsoever, whether arising out of any action between
any of the Underwriter Indemnified Parties and the Company or between any of the Underwriter Indemnified Parties and any third party,
or otherwise) to which they or any of them may become subject under the Securities Act, the Exchange Act or any other statute or at common
law or otherwise or under the laws of foreign countries, arising out of or based upon any untrue statement or alleged untrue statement
of a material fact contained in (i) the Registration Statement, the Pricing Disclosure Package, the Preliminary Prospectus, the Prospectus,
or any Issuer Free Writing Prospectus (as from time to time each may be amended and supplemented); (ii) any materials or information
provided to investors by, or with the approval of, the Company in connection with the marketing of the Offering, including any “road
show” or investor presentations made to investors by the Company (whether in person or electronically); or (iii) any application
or other document or written communication (in this Section 5, collectively called “application”) executed by the
Company or based upon written information furnished by the Company in any jurisdiction in order to qualify the Public Securities under
the securities laws thereof or filed with the Commission, any state securities commission or agency, the Exchange, or any other national
securities exchange; or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were made, not misleading, unless such statement or omission was
made in reliance upon, and in conformity with, the Underwriters’ Information. With respect to any untrue statement or omission
or alleged untrue statement or omission made in the Pricing Disclosure Package, the indemnity agreement contained in this Section
5.1.1 shall not inure to the benefit of any Underwriter Indemnified Party to the extent that any loss, liability, claim, damage,
or expense of such Underwriter Indemnified Party (a) is based on the Underwriters’ Information, (b) results from the fact that
a copy of the Prospectus was not given or sent to the person asserting any such loss, liability, claim, or damage at or prior to the
written confirmation of sale of the Public Securities to such person as required by the Securities Act and the Securities Act Regulations,
and if the untrue statement or omission has been corrected in the Prospectus, unless such failure to deliver the Prospectus was a result
of non-compliance by the Company with its obligations under Section 3.3 hereof, or (c) is found in a final, non-appealable judgment
of a court of competent jurisdiction to have resulted primarily from the willful misconduct or gross negligence of such Underwriter Indemnified
Party.
5.1.2.
Procedure. If any action is brought against an Underwriter Indemnified Party in respect of which indemnity may be sought against
the Company pursuant to Section 5.1.1, such Underwriter Indemnified Party shall promptly notify the Company in writing of the
institution of such action and the Company 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, including the employment and fees of counsel (subject
to the reasonable approval of such Underwriter Indemnified Party) and payment of actual expenses. Such Underwriter Indemnified Party
shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense
of such Underwriter Indemnified Party unless (i) the employment of such counsel at the expense of the Company shall have been authorized
in writing by the Company in connection with the defense of such action, or (ii) the Company shall not have employed counsel to have
charge of the defense of such action, or (iii) the action includes both the Company and the indemnified party as defendants and such
indemnified party or parties shall have been advised by its counsel that there may be defenses available to it or them which are different
from or additional to those available to the Company which makes it impossible or inadvisable for the Company and such indemnified party
to be represented in the action by the same counsel (in which case the Company shall not have the right to direct the defense of such
action on behalf of the indemnified party), in any of which events the reasonable fees and expenses of not more than one additional firm
of attorneys selected by the Underwriter Indemnified Parties who are party to such action (in addition to local counsel) shall be borne
by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter Indemnified Party shall assume the defense
of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action, which approval
shall not be unreasonably withheld.
5.2.
Indemnification of the Company. Each Underwriter, severally and not jointly, shall indemnify and hold harmless the Company, its directors,
its officers who signed the Registration Statement, and persons who control the Company within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage, and expense described in the foregoing indemnity
from the Company to the several Underwriters, as incurred, but only with respect to such losses, liabilities, claims, damages, and expenses
(or actions in respect thereof) which arise out of or are based upon untrue statements or omissions made in the Registration Statement,
any Preliminary Prospectus, the Pricing Disclosure Package, or Prospectus or any amendment or supplement thereto or in any application,
in reliance upon, and in strict conformity with, the Underwriters’ Information. In case any action shall be brought against the
Company or any other person so indemnified based on any Preliminary Prospectus, the Registration Statement, the Pricing Disclosure Package,
or Prospectus or any amendment or supplement thereto or any application, and in respect of which indemnity may be sought against any
Underwriter, such Underwriter shall have the rights and duties given to the Company, and the Company and each other person so indemnified
shall have the rights and duties given to the several Underwriters by the provisions of Section 5.1.2. The Company agrees promptly
to notify the Representative of the commencement of any litigation or proceedings against the Company or any of its officers, directors
or any person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, in connection with the issuance and sale of the Public Securities or in connection with the Registration Statement, the Pricing
Disclosure Package, the Prospectus, or any Issuer Free Writing Prospectus.
5.3. Contribution.
5.3.1.
Contribution Rights. If the indemnification provided for in this Section 5 shall for any reason be unavailable to or insufficient
to hold harmless an indemnified party under Section 5.1 or 5.2 in respect of any loss, claim, damage or liability, or any
action in respect thereof, referred to therein, then each indemnifying party shall, in lieu of indemnifying such indemnified party, contribute
to the amount paid or payable by such indemnified party as a result of such loss, claim, damage, or liability, or action in respect thereof,
(i) in such proportion as shall be appropriate to reflect the relative benefits received by the Company, on the one hand, and each of
the Underwriters, on the other hand, from the Offering, or (ii) if the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative
fault of the Company, on the one hand, and the Underwriters, on the other, with respect to the statements or omissions that resulted
in such loss, claim, damage or liability, or action 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 proceeds from the Offering purchased under this Agreement (before deducting expenses) received
by the Company bear to the total underwriting discount and commissions received by the Underwriters in connection with the Offering,
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 Representative by or on behalf of any Underwriter for use in any Preliminary
Prospectus, any Registration Statement or the Prospectus, or in any amendment or supplement thereto, consists solely of the Underwriters’
Information. The Company and the Underwriters agree that it would not be just and equitable if contributions pursuant to this Section
5.3.1 were to be determined by pro rata allocation or by any other method of allocation that does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified party as a result of the loss, claim, damage, expense,
liability, action, investigation, or proceeding referred to above in this Section 5.3.1 shall be deemed to include, for purposes
of this Section 5.3.1, any legal or other expenses reasonably incurred 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 5.3.1
no Underwriter shall be required to contribute any amount in excess of the total discount and commission received by such Underwriter
in connection with the Offering less the amount of any damages which such Underwriter has otherwise paid or becomes 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.
5.3.2.
Contribution Procedure. Within fifteen (15) days after receipt by any party to this Agreement (or its representative) of notice
of the commencement of any action, suit, or proceeding, such party will, if a claim for contribution in respect thereof is to be made
against another party (“contributing party”), notify the contributing party of the commencement thereof, but the failure
to so notify the contributing party will not relieve it from any liability which it may have to any other party other than for contribution
hereunder. In case any such action, suit or proceeding is brought against any party, and such party notifies a contributing party or
its representative of the commencement thereof within the aforesaid fifteen (15) days, the contributing party will be entitled to participate
therein with the notifying party and any other contributing party similarly notified. Any such contributing party shall not be liable
to any party seeking contribution on account of any settlement of any claim, action or proceeding affected by such party seeking contribution
without the written consent of such contributing party. The contribution provisions contained in this Section 5.3.2 are intended
to supersede, to the extent permitted by law, any right to contribution under the Securities Act, the Exchange Act, or otherwise available.
The Underwriters’ obligations to contribute as provided in this Section 5.3 are several and in proportion to their respective
underwriting obligation, and not joint.
6. DEFAULT BY AN UNDERWRITER.
6.1.
Default Not Exceeding 10% of Firm Securities or Option Securities. If any Underwriter or Underwriters shall default in its or their
obligations to purchase the Firm Securities or the Option Securities, if the Over-allotment Option is exercised hereunder, and if the
number of the Firm Securities or Option Securities with respect to which such default relates does not exceed in the aggregate ten percent
(10%) of the number of Firm Securities and or Option Securities that all Underwriters have agreed to purchase hereunder, then such Firm
Securities or Option Securities to which the default relates shall be purchased by the non-defaulting Underwriters in proportion to their
respective commitments hereunder.
6.2.
Default Exceeding 10% of Firm Securities or Option Securities. In the event that the default addressed in Section 6.1 relates
to more than ten percent (10%) of the number of Firm Securities or Option Securities, the Representative may in its discretion arrange
for itself or for another party or parties to purchase such Firm Securities or Option Securities to which such default relates on the
terms contained herein. If, within one (1) Business Day after such default relating to more than ten percent (10%) of the number of Firm
Securities or Option Securities, the Representative does not arrange for the purchase of such Firm Securities or Option Securities, then
the Company shall be entitled to a further period of one (1) Business Day within which to procure another party or parties satisfactory
to the Representative to purchase said Firm Securities or Option Securities on such terms. In the event that neither the Representative
nor the Company arrange for the purchase of the Firm Securities or Option Securities to which a default relates as provided in this Section
6, this Agreement will automatically be terminated by the Representative or the Company without liability on the part of the Company
(except as provided in Sections 3.10 and 5 hereof) or the several Underwriters (except as provided in Section 5
hereof); provided, however, that if such default occurs with respect to the Option Securities, this Agreement will not
terminate as to the Firm Securities; and provided, further, that nothing herein shall relieve a defaulting Underwriter
of its liability, if any, to the other Underwriters and to the Company for damages occasioned by its default hereunder.
6.3.
Postponement of Closing Date. In the event that the Firm Securities or Option Securities to which the default relates are to be purchased
by the non-defaulting Underwriters, or are to be purchased by another party or parties as aforesaid, you or the Company shall have the
right to postpone the Closing Date or Option Closing Date for a reasonable period, but not in any event exceeding five (5) Business Days,
in order to effect whatever changes may thereby be made necessary in the Registration Statement, the Pricing Disclosure Package, or the
Prospectus or in any other documents and arrangements, and the Company agrees to file promptly any amendment to the Registration Statement,
the Pricing Disclosure Package, or the Prospectus that in the opinion of Representative Counsel may thereby be made necessary. The term
“Underwriter” as used in this Agreement shall include any party substituted under this Section 6 with like
effect as if it had originally been a party to this Agreement with respect to such Firm Securities or Option Securities.
7. ADDITIONAL COVENANTS.
7.1.
Prohibition on Press Releases and Public Announcements. The Company shall not issue press releases or engage in any other publicity,
without the Representative’s prior written consent, for a period ending at 5:00 p.m., Eastern time, on the first (1st) Business
Day following the fortieth (40th) day after the Closing Date, other than normal and customary releases issued in the ordinary course
of the Company’s business.
8. EFFECTIVE DATE OF THIS AGREEMENT AND TERMINATION THEREOF.
8.1.
Effective Date. This Agreement shall become effective when both the Company and the Representative have executed the same and delivered
counterparts of such signatures to the other party.
8.2.
Termination. The Representative shall have the right to terminate this Agreement at any time prior to any Closing Date, (i) if any
domestic or international event or act or occurrence has materially disrupted, or in the Representative’s opinion will in the immediate
future materially disrupt, general securities markets in the United States; or (ii) if trading on the New York Stock Exchange or The
Nasdaq Stock Market LLC shall have been suspended or materially limited, or minimum or maximum prices for trading shall have been fixed,
or maximum ranges for prices for securities shall have been required by FINRA or by order of the Commission or any other government authority
having jurisdiction; or (iii) if the United States shall have become involved in a new war or an increase in major hostilities; or (iv)
if a banking moratorium has been declared by a New York State or federal authority; or (v) if a moratorium on foreign exchange trading
has been declared which materially adversely impacts the United States securities markets; or (vi) if the Company shall have sustained
a material loss by fire, flood, accident, hurricane, earthquake, theft, sabotage, or other calamity or malicious act which, whether or
not such loss shall have been insured, will, in your opinion, make it inadvisable to proceed with the delivery of the Firm Securities
or Option Securities; or (vii) if the Company is in material breach of any of its representations, warranties, or covenants hereunder;
or (viii) if the Representative shall have become aware after the date hereof of a Material Adverse Change, or an adverse material change
in general market conditions as in the Representative’s judgment would make it impracticable to proceed with the offering, sale
and/or delivery of the Public Securities or to enforce contracts made by the Underwriters for the sale of the Public Securities.
8.3.
Expenses. Notwithstanding anything to the contrary in this Agreement, except in the case of a default by the Underwriters, pursuant
to Section 6.2 above, in the event that this Agreement shall not be carried out for any reason whatsoever, within the time specified
herein or any extensions thereof pursuant to the terms herein, the Company shall be obligated to pay to the Underwriters their actual
and accountable out-of-pocket expenses related to the transactions contemplated herein then due and payable (including the fees and disbursements
of Representative Counsel not to exceed Fifty Thousand Dollars ($50,000)) up to Fifty Thousand Dollars ($50,000) less amounts previously
advanced, and upon demand the Company shall pay the full amount thereof to the Representative on behalf of the Underwriters; provided,
however, that such expense cap in no way limits or impairs the indemnification and contribution provisions of this Agreement.
Notwithstanding
the foregoing, any advance received by the Representative will be reimbursed to the Company to the extent not actually incurred in compliance
with FINRA Rule 5110(g)(4)(A).
8.4.
Indemnification. Notwithstanding any contrary provision contained in this Agreement, any election hereunder or any termination of
this Agreement, and whether or not this Agreement is otherwise carried out, the provisions of Section 5 shall remain in full force
and effect and shall not be in any way affected by, such election or termination or failure to carry out the terms of this Agreement
or any part hereof.
8.5.
Representations, Warranties, Agreements to Survive. All representations, warranties and agreements contained in this Agreement or
in certificates of officers of the Company submitted pursuant hereto, shall remain operative and in full force and effect regardless
of (i) any investigation made by or on behalf of any Underwriter or its affiliates or selling agents, any person controlling any Underwriter,
its officers or directors or any person controlling the Company or (ii) delivery of and payment for the Public Securities.
9. MISCELLANEOUS.
9.1.
Notices. All communications hereunder, except as herein otherwise specifically provided, shall be in writing and shall be mailed
(registered or certified mail, return receipt requested), personally delivered or sent by facsimile transmission and confirmed and shall
be deemed given when so delivered or emailed and confirmed (which may be by email) or if mailed, two (2) days after such mailing.
If
to the Representative:
EF
Hutton
590
Madison Avenue, 39th Floor
New
York, New York 10022
Attn:
Joseph T. Rallo
with
a copy (which shall not constitute notice) to:
Lucosky
Brookman LLP
101
Wood Avenue South, 5th Floor
Woodbridge,
NJ 08830
Attention:
Joseph M. Lucosky, Esq.
E-mail:
jlucosky@lucbro.com
If
to the Company:
Treasure
Global Inc
276
5th Avenue, Suite 704 #739
New
York, New York 10001
Attn:
Chong Chan “Sam” Teo
E-mail:
sam@treasuregroup.com
with
a copy (which shall not constitute notice) to:
Sichenzia
Ross Ference Carmel LLP
1185
Avenue of the Americas, 31st Floor
New
York, NY 10036
Attn:
Ross D. Carmel, Esq.
E-mail:
rcarmel@srfc.law
9.2.
Headings. The headings contained herein are for the sole purpose of convenience of reference, and shall not in any way limit or affect
the meaning or interpretation of any of the terms or provisions of this Agreement.
9.3.
Amendment. This Agreement may only be amended by a written instrument executed by each of the parties hereto.
9.4.
Entire Agreement. This Agreement (together with the other agreements and documents being delivered pursuant to or in connection with
this Agreement) constitutes the entire agreement of the parties hereto with respect to the subject matter hereof and thereof, and supersedes
all prior agreements and understandings of the parties, oral and written, with respect to the subject matter hereof.
9.5.
Binding Effect. This Agreement shall inure solely to the benefit of and shall be binding upon the Representative, the Underwriters,
the Company, and the controlling persons, directors and officers referred to in Section 5 hereof, and their respective successors,
legal representatives, heirs, and assigns, and no other person shall have or be construed to have any legal or equitable right, remedy,
or claim under or in respect of or by virtue of this Agreement or any provisions herein contained. The term “successors and assigns”
shall not include a purchaser, in its capacity as such, of securities from any of the Underwriters.
9.6.
Governing Law; Consent to Jurisdiction; Trial by Jury. This Agreement shall be governed by and construed and enforced in accordance
with the laws of the State of New York, without giving effect to conflict of laws principles thereof. The Company hereby agrees that
any action, proceeding, or claim against it arising out of, or relating in any way to this Agreement shall be brought and enforced in
the New York Supreme Court, County of New York, or in the United States District Court for the Southern District of New York, and irrevocably
submits to such jurisdiction, which jurisdiction shall be exclusive. The Company hereby waives any objection to such exclusive jurisdiction
and that such courts represent an inconvenient forum. Any such process or summons to be served upon the Company may be served by transmitting
a copy thereof by registered or certified mail, return receipt requested, postage prepaid, addressed to it at the address set forth in
Section 9.1 hereof. Such mailing shall be deemed personal service and shall be legal and binding upon the Company in any action,
proceeding, or claim. The Company agrees that the prevailing party(ies) in any such action shall be entitled to recover from the other
party(ies) all of its reasonable attorneys’ fees and expenses relating to such action or proceeding and/or incurred in connection
with the preparation therefor. The Company (on its behalf and, to the extent permitted by applicable law, on behalf of its stockholders
and affiliates) and each of the Underwriters hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all
right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
9.7.
Execution in Counterparts. This Agreement may be executed in one or more counterparts, and by the different parties hereto in separate
counterparts, each of which shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement,
and shall become effective when one or more counterparts has been signed by each of the parties hereto and delivered to each of the other
parties hereto. Delivery of a signed counterpart of this Agreement by facsimile or email/pdf transmission shall constitute valid and
sufficient delivery thereof.
9.8.
Waiver, etc. The failure of any of the parties hereto to at any time enforce any of the provisions of this Agreement shall not be
deemed or construed to be a waiver of any such provision, nor to in any way effect the validity of this Agreement or any provision hereof
or the right of any of the parties hereto to thereafter enforce each and every provision of this Agreement. No waiver of any breach,
non-compliance, or non-fulfillment of any of the provisions of this Agreement shall be effective unless set forth in a written instrument
executed by the party or parties against whom or which enforcement of such waiver is sought; and no waiver of any such breach, non-compliance,
or non-fulfillment shall be construed or deemed to be a waiver of any other or subsequent breach, non-compliance, or non-fulfillment.
[Signature
Page Follows]
If
the foregoing correctly sets forth the understanding between the Underwriters and the Company, please so indicate in the space provided
below for that purpose, whereupon this letter shall constitute a binding agreement between us.
|
Very truly yours, |
|
|
|
|
TREASURE GLOBAL INC |
|
|
|
|
By: |
/s/
Chong Chan “Sam” Teo |
|
Name: |
Chong Chan “Sam”
Teo |
|
Title: |
CEO |
Confirmed
as of the date first written above mentioned, on behalf of itself and as Representative of the several Underwriters named on Schedule
1 hereto:
EF
HUTTON,
division
of Benchmark Investments, LLC
By: |
/s/
Sam Fleischman |
|
Name: |
Sam
Fleischman |
|
Title: |
Supervisory
Principal |
|
[Signature
Page to Underwriting Agreement]
SCHEDULE
1
Underwriter | |
Total
Number of
Firm
Shares to
be
Purchased | | |
Total
Number of
Pre-Funded
Warrants to
be
Purchased | | |
Number of Additional
Option Shares and/or Pre- Funded Warrants if
the Over-Allotment
Option is
Fully Exercised | |
EF Hutton, division
of Benchmark Investments, LLC | |
| 26,014,000 | | |
| 14,000,000 | | |
| 6,002,100 | |
TOTAL | |
| 26,014,000 | | |
| 14,000,000 | | |
| 6,002,100 | |
SCHEDULE
2-A
Pricing
Information
Number
of Firm Shares: 26,014,000
Number
of Pre-Funded Warrants: 14,000,000
Number
of Option Shares and/or Option Pre-Funded Warrants: 6,002,100
Public
Offering Price per Firm Share: $0.10
Public
Offering Price per Pre-Funded Warrant: $0.0999
Public
Offering Price per Option Share: $0.10
Public
Offering Price per Option Pre-Funded Warrant: $0.0999
Underwriting
Discount per Firm Share for 8,321,780 shares: $0.007
Underwriting
Discount per Firm Share for 17,692,220 shares: $0.0035
Underwriting
Discount per Pre-Funded Warrant: $ 0.006993
Underwriting
Discount per Option Share: $0.007
Underwriting
Discount per Option Pre-Funded Warrant: $0.006993
Proceeds
to Company per Firm Share for 8,321,780 shares (before expenses): $0.093
Proceeds
to Company per Firm Share for 17,692,220 shares (before expenses): $0.0965
Proceeds
to Company per Pre-Funded Warrant (before expenses): $0.092907
SCHEDULE
2-B
Issuer
General Use Free Writing Prospectuses
None.
SCHEDULE
3
List
of Lock-Up Parties
2. | Su Chen “Chanell”
Chuah |
3. | Meng Chun “Michael”
Chan |
8. | Joseph R. “Bobby”
Banks |
11. | The Evolutionary Zeal
Sdn Bhd |
12. | Tophill Holdings Sdn.
Bhd. |
13. | AI Lab Martech Sdn Bhd |
EXHIBIT
A
Form
of Lock-Up Agreement
Lock-Up Agreement
__________,
2023
EF
Hutton,
division
of Benchmark Investments, LLC
as
Representative of the Underwriters
590
Madison Avenue, 39th Floor
New
York, New York 10022
Ladies
and Gentlemen:
The
undersigned understands that EF Hutton, division of Benchmark Investments, LLC (the “Representative”) proposes to
enter into an Underwriting Agreement (the “Underwriting Agreement”) with Treasure Global Inc, a Delaware corporation
(the “Company”), providing for the public offering (the “Public Offering”) of shares of common
stock of the Company, par value $0.00001 per share (the “Common Stock”) or pre- funded warrants to purchase shares
of Common Stock in lieu thereof (the “Pre-Funded Warrants,” and collectively with the Common Stock, the “Securities”).
To
induce the Representative to continue its efforts in connection with the Public Offering, the undersigned hereby agrees that, without
the prior written consent of the Representative, the undersigned will not, during the period commencing on the date hereof and ending
ninety (90) days after the date of the final prospectus (the “Prospectus”) relating to the Public Offering (the “Lock-Up
Period”), (1) offer, pledge, sell, contract to sell, grant, lend, or otherwise transfer or dispose of, directly or indirectly,
any Securities or any securities convertible into or exercisable or exchangeable for the Securities, whether now owned or hereafter acquired
by the undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition (collectively, the “Lock-Up
Securities”); (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic
consequences of ownership of the Lock-Up Securities, whether any such transaction described in clause (1) or (2) above is to be settled
by delivery of Lock-Up Securities, in cash or otherwise; (3) make any demand for or exercise any right with respect to the registration
of any Lock-Up Securities; or (4) publicly disclose the intention to make any offer, sale, pledge or disposition, or to enter into any
transaction, swap, hedge, or other arrangement relating to any Lock-Up Securities. Notwithstanding the foregoing, and subject to the
conditions below, the undersigned may transfer Lock- Up Securities without the prior written consent of the Representative in connection
with (a) transactions relating to Lock-Up Securities acquired in open market transactions after the completion of the Public Offering;
provided that no filing under Section 13 or Section 16(a) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), or other public announcement shall be required or shall be voluntarily made during the Lock-Up Period in connection
with subsequent sales of Lock-Up Securities acquired in such open market transactions; (b) transfers of Lock-Up Securities as a bona
fide gift, by will or intestacy, or to a family member or trust for the benefit of a family member (for purposes of this lock-up
agreement, “family member” means any relationship by blood, marriage, or adoption, not more remote than first cousin); (c)
transfers of Lock-Up Securities to a charity or educational institution; or (d) if the undersigned, directly or indirectly, controls
a corporation, partnership, limited liability company, or other business entity, any transfers of Lock-Up Securities to any shareholder,
partner, or member of, or owner of similar equity interests in, the undersigned, as the case may be; provided that in the case
of any transfer pursuant to the foregoing clauses (b), (c), or (d), (i) it shall be a condition to any such transfer that (i) the transferee/donee
agrees to be bound by the terms of this lock-up agreement (including, without limitation, the restrictions set forth in the preceding
sentence) to the same extent as if the transferee/donee were a party hereto; (ii) each party (donor, donee, transferor, or transferee)
shall not be required by law (including without limitation the disclosure requirements of the Securities Act of 1933, as amended (the
“Securities Act”), and the Exchange Act) to make, and shall agree to not voluntarily make, any filing or public announcement
of the transfer or disposition prior to the expiration of the Lock-Up Period; and (iii) the undersigned notifies the Representative at
least two (2) business days prior to the proposed transfer or disposition.
In
addition, the foregoing restrictions shall not apply to (i) the exercise or vesting of stock options or other equity awards granted pursuant
to the Company’s equity incentive plans; provided that it shall apply to any of the undersigned’s Common Stock issued
upon such exercise, (ii) the conversion or exercise of convertible debt or warrants; provided that it shall apply to any of the
undersigned’s Common Stock issued upon such exercise, or (iii) the establishment of any new plan (a “Plan”)
that satisfies all of the requirements of Rule 10b5-1(c)(1)(i)(B) under the Exchange Act; provided that no sales of the undersigned’s
Securities shall be made pursuant to such new Plan prior to the expiration of the Lock-Up Period (as such may have been extended pursuant
to the provisions hereof), and such a Plan may only be established if no public announcement of the establishment or existence thereof
and no filing with the Securities and Exchange Commission or other regulatory authority in respect thereof or transactions thereunder
or contemplated thereby, by the undersigned, the Company or any other person, shall be required, and no such announcement or filing is
made voluntarily, by the undersigned, the Company, or any other person, prior to the expiration of the Lock-Up Period (as such may have
been extended pursuant to the provisions hereof).
The
undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar
against the transfer of the undersigned’s securities subject to this this lock-up agreement except in compliance with this this
lock-up agreement.
If
the undersigned is an officer or director of the Company, (i) the undersigned agrees that the foregoing restrictions shall be equally
applicable to any Securities that the undersigned may purchase in the Public Offering; (ii) the Representative agrees that, at least
three (3) business days before the effective date of any release or waiver of the foregoing restrictions in connection with a transfer
of Lock-Up Securities, the Representative will notify the Company of the impending release or waiver; and (iii) the Company has agreed
in the Underwriting Agreement to announce the impending release or waiver by press release through a major news service at least two
(2) business days before the effective date of the release or waiver. Any release or waiver granted by the Representative hereunder to
any such officer or director shall only be effective two (2) business days after the publication date of such press release. The provisions
of this paragraph will not apply if (a) the release or waiver is effected solely to permit a transfer of Lock- Up Securities not for
consideration and (b) the transferee has agreed in writing to be bound by the same terms described in this lock-up agreement to the extent
and for the duration that such terms remain in effect at the time of such transfer.
The
undersigned understands that the Company and the Representative are relying upon this lock-up agreement in proceeding toward consummation
of the Public Offering. The undersigned further understands that this lock-up agreement is irrevocable and shall be binding upon the
undersigned’s heirs, legal representatives, successors, and assigns.
The
undersigned understands that, if the Underwriting Agreement does not become effective, or if the Underwriting Agreement (other than the
provisions thereof which survive termination) shall terminate or be terminated prior to payment for and delivery of the Securities to
be sold thereunder, the undersigned shall be released from all obligations under this lock-up agreement.
This
lock-up agreement shall be governed by, and construed in accordance with, the laws of the State of New York.
Very truly yours, |
|
|
(Name - Please Print) |
|
|
(Signature) |
|
|
(Name of Signatory, in the
case of entities - Please Print) |
|
|
(Title
of Signatory, in the case of entities - Please Print) |
EXHIBIT
C
Form
of Press Release
[________]
[Date]
[ ]
(the “Company”) announced today that EF Hutton, division of Benchmark Investments, LLC, acting as representative for the
underwriters in the Company’s recent public offering of ________shares of the Company’s Common Stock, and pre-funded warrants
to purchase shares of the Company’s Common Stock, is [waiving] [releasing] a lock-up restriction with respect to ________shares
of Common Stock and__________ shares of Common Stock underlying convertible securities held by [certain officers or directors] [an officer
or director] of the Company. The [waiver] [release] will take effect on ________, 20 __, and such shares of Common Stock and shares of
Common Stock underlying convertible securities may be sold on or after such date.
This
press release is not an offer or sale of the securities in the United States or in any other jurisdiction where such offer or sale is
prohibited, and such securities may not be offered or sold in the United States absent registration or an exemption from registration
under the Securities Act of 1933, as amended.
Exhibit C-1
Exhibit 4.1
PRE-FUNDED COMMON STOCK PURCHASE WARRANT
Treasure
Global, Inc.
Warrant Shares: 14,000,000 |
Initial Exercise Date: November 30, 2023 |
|
|
CUSIP: 89458T114 |
Issue Date: November 30, 2023 |
THIS PRE-FUNDED COMMON STOCK PURCHASE
WARRANT (“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 until this Warrant is exercised in full (the “Termination Date”) but not thereafter, to
subscribe for and purchase from Treasure Global Inc., a Delaware corporation (the “Company”), up to 14,000,000
shares (as subject to adjustment hereunder, the “Warrant Shares”) of Common Stock. The purchase price of one (1)
share of Common Stock under this Warrant shall be equal to the Exercise Price, as defined in Section 2(b)..
Section 1. Definitions. In addition
to the terms defined elsewhere in this Warrant, the following terms have the meanings indicated in this Section 1:
“Affiliate” means any Person
that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person,
as such terms are used in and construed under Rule 405 under the Securities Act.
“Bid Price” means, for any
date, the price determined by the first of the following clauses that applies: (i) 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 L.P. (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02
p.m. (New York City time)), (ii) 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, (iii) 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 (iv) 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
Holders of a majority in interest of the Warrants then outstanding and reasonably acceptable to the Company, the fees and expenses of
which shall be paid by the Company.
“Business Day” means any day
other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law to remain
closed; provided, however, for clarification, commercial banks shall not be deemed to be authorized or required by law to
remain closed due to “stay at home,” “shelter-in-place,” “non-essential employee” or any other similar
orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority so long as the electronic
funds transfer systems (including for wire transfers) of commercial banks in The City of New York generally are open for use by customers
on such day.
“Commission” means the United
States Securities and Exchange Commission.
“Common Stock” means the common
stock of the Company, par value $0.0001 per share, and any other class of securities into which such securities may hereafter be reclassified
or changed.
“Common Stock Equivalents”
means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire at any time Common Stock, including,
without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable
or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Exchange Act” means the Securities
Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Person” means an individual
or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock
company, government (or an agency or subdivision thereof) or other entity of any kind.
“Registration Statement” means
the Company’s registration statement on Form S-3 (File No. 333-271605).
“Securities Act” means the
Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Subsidiary” means any subsidiary
of the Company and shall, where applicable, also include any direct or indirect subsidiary of the Company formed or acquired after the
date hereof.
“Trading Day” means a day on
which the Common Stock is traded on a Trading Market.
“Trading Market” means any
of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the NYSE American,
The Nasdaq Capital Market, The Nasdaq Global Market, The Nasdaq Global Select Market, the New York Stock Exchange, OTCQB or OTCQX (or
any successors to any of the foregoing).
“Transfer Agent” means Vstock
Transfer, LLC, the current transfer agent of the Company, with a mailing address of 18 Lafayette Place, Woodmere, New York 11598, and
any successor transfer agent of the Company.
“Underwriting Agreement” means
the underwriting agreement, dated as of November 28, 2023 among the Company and EF Hutton, division of Benchmark Investments, LLC., as
the underwriter named therein, as amended, modified or supplemented from time to time in accordance with its terms.
“VWAP” means, for any date,
the price determined by the first of the following clauses that applies: (i) 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 L.P. (based on a Trading Day from 9:30 a.m. (New York City
time) to 4:02 p.m. (New York City time)), (ii) 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, (iii) 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 (iv)
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 holders of a majority in interest of the Warrants then outstanding and reasonably acceptable to the Company, the fees and expenses
of which shall be paid by the Company.
“Warrants” means this Warrant
and other pre-funded warrants issued by the Company pursuant to the Registration Statement.
Section 2. Exercise.
a) Exercise of Warrant. Subject
to the provisions of Section 2(e) herein, 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 Exercise Date and on or before the Termination Date by delivery to the Company of a duly
executed facsimile copy or PDF copy submitted by e-mail (or e-mail attachment) of the Notice of Exercise in the form attached hereto as
Exhibit A (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(d)(i) herein) following the date of exercise as aforesaid,
the Holder shall deliver the aggregate Exercise Price for the Warrant Shares specified in the applicable Notice of Exercise by wire transfer
of immediately available funds 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) Trading Day of receipt of such
notice. Notwithstanding the foregoing, with respect to any Notice(s) of Exercise delivered on or prior to 4:00 p.m. (New York City time)
on the Trading Date prior to the Initial Exercise Date, which may be delivered at any time after the time of execution of the Underwriting
Agreement, the Company agrees to deliver the Warrant Shares subject to such notice(s) by 4:00 p.m. (New York City time) on the Initial
Exercise Date and the Initial Exercise Date shall be the Warrant Share Delivery Date for purposes hereunder, provided that payment of
the aggregate Exercise Price (other than in the case of a cashless exercise) is received by such Warrant Share Delivery Date. 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.
Notwithstanding the foregoing in this Section
2(a), a holder whose interest in this Warrant is a beneficial interest in certificate(s) representing this Warrant held in book-entry
form through DTC (or another established clearing corporation performing similar functions), shall effect exercises made pursuant to this
Section 2(a) by delivering to DTC (or such other clearing corporation, as applicable) the appropriate instruction form for exercise, complying
with the procedures to effect exercise that are required by DTC (or such other clearing corporation, as applicable), subject to a Holder’s
right to elect to receive a Warrant in certificated form pursuant to the terms of the Warrant Agency Agreement, in which case this sentence
shall not apply.
b) Exercise Price. The aggregate
exercise price of this Warrant, except for a nominal exercise price of $0.0001 per Warrant Share, was pre-funded to the Company on or
prior to the Initial Exercise Date and, consequently, no additional consideration (other than the nominal exercise price of $0.0001 per
Warrant Share) shall be required to be paid by the Holder to any Person to effect any exercise of this Warrant. The Holder shall not be
entitled to the return or refund of all, or any portion, of such pre-paid aggregate exercise price under any circumstance or for any reason
whatsoever, including in the event this Warrant shall not have been exercised prior to the Termination Date. The remaining unpaid exercise
price per share of Common Stock under this Warrant shall be $0.0001, subject to adjustment hereunder (the “Exercise Price”).
c) Cashless Exercise. 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:
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(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)(68) 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. 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; |
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|
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(B) = |
the Exercise Price of this Warrant, as adjusted hereunder; and |
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(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 registered 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).
d) 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 (i) there is an effective
registration statement permitting the issuance of the Warrant Shares to or resale of the Warrant Shares by the Holder or (ii) this Warrant
is being exercised via cashless exercise, 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 (A) two (2) Trading Days
after the delivery to the Company of the Notice of Exercise, (B) one (1) Trading Day after delivery of the aggregate Exercise Price to
the Company and (C) 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
(3rd) Trading Day after such liquidated damages begin to accrue) 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 Automated Securities Transfer 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. Notwithstanding the foregoing,
with respect to any Notice(s) of Exercise delivered on or prior to 12:00 p.m. (New York City time) on the Initial Exercise Date, which
may be delivered at any time after the time of execution of the Underwriting Agreement, the Company agrees to deliver the Warrant Shares
subject to such notice(s) by 4:00 p.m. (New York City time) on the Initial Exercise Date and the Initial Exercise Date shall be the Warrant
Share Delivery Date for purposes hereunder, provided that payment of the aggregate Exercise Price (other than in the case of a cashless
exercise) is received by such Warrant Share Delivery Date.
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(d)(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(d)(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 as Exhibit B 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.
e) 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) exercise of the remaining, unexercised 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 unconverted 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(e), 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(e) 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(e), 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 9.99% of the number of shares of
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(e),
provided that the Beneficial Ownership Limitation in no event exceeds 9.99% of the number of shares of 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(e) shall continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the
sixty-first (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(e)
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 all (or substantially all) of 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,
including without limitation, the Beneficial Ownership Limitation) 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 (provided, however, that, to the extent
that the Holder’s right to participate in any such Purchase Right would result in the Holder exceeding the Beneficial Ownership
Limitation, then the Holder shall not be entitled to participate in such Purchase Right to such extent (or beneficial ownership of such
shares of Common Stock as a result of such Purchase Right to such extent) and such Purchase Right to such extent shall be held in abeyance
for the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).
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 all (or substantially all) of 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, including without limitation, the Beneficial Ownership Limitation)
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 (provided, however,
that, to the extent that the Holder’s right to participate in any such Distribution would result in the Holder exceeding the Beneficial
Ownership Limitation, then the Holder shall not be entitled to participate in such Distribution to such extent (or in the beneficial ownership
of any shares of Common Stock as a result of such Distribution to such extent) and the portion of such Distribution shall be held in abeyance
for the benefit of the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership
Limitation). 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 fifty percent (50%) or more of the outstanding Common Stock or fifty
percent (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 (other than as a
result of a stock split, combination or reclassification of shares of Common Stock covered by Section 3(a) above), 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 fifty percent (50%) or more of the outstanding shares of Common Stock or
fifty percent (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(e) 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(e)
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.
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 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 that 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 prior 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(e) 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 Exercise 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 twenty (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 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 Commission 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. 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 as Exhibit B 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. If this Warrant is not
held in global form through DTC (or any successor depositary), 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.
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(d)(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(d)(i) and Section 2(d)(iv), in no event, including if the Company is for any reason
unable to issue and deliver Warrant Shares upon exercise of this Warrant as required pursuant to the terms hereof, shall the Company be
required to net cash settle an exercise of this Warrant or cash settle in any other form.
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 that 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) Governing Law. All questions concerning
the construction, validity, enforcement and interpretation of this Warrant shall be governed by and construed and enforced in accordance
with the internal laws of the State of New York, without regard to the principles of conflicts of law thereof. Each party agrees that
all legal proceedings concerning the interpretations, enforcement and defense of the transactions contemplated by this Warrant (whether
brought against a party hereto or their respective affiliates, directors, officers, shareholders, partners, members, employees or agents)
shall be commenced exclusively in the state and federal courts sitting in the City of New York. Each party hereby irrevocably submits
to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, Borough of Manhattan for the adjudication
of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of
any such court, that such suit, action or proceeding is improper or is an inconvenient venue for such proceeding. Each party hereby irrevocably
waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof
via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices
to it under this Warrant and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law. If either party
shall commence an action, suit or proceeding to enforce any provisions of this Warrant, the prevailing party in such action, suit or proceeding
shall be reimbursed by the other party for their reasonable attorneys’ fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such action or proceeding. Notwithstanding the foregoing, nothing in this paragraph shall limit or restrict
the federal district court in which a Holder may bring a claim under the federal securities laws.
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. No provision of this Warrant shall be construed as a waiver by the Holder of
any rights which the Holder may have under the federal securities laws and the rules and regulations of the Commission thereunder. Without
limiting any other provision of this Warrant, if the Company willfully and knowingly fails to comply with any material 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 and all notices or other
communications or deliveries to be provided by the Holders hereunder including, without limitation, any Notice of Exercise, shall be in
writing and delivered personally, or by e-mail, or sent by a nationally recognized overnight courier service, addressed to the Company,
at Treasure Global Inc, 276 5th Avenue Suite 704 #739 New York, NY 10001, Attention: Chief Executive Officer, email address: sam@treasuregroup.co,
or such other email address or address as the Company may specify for such purposes by notice to the Holders. Any and all notices or other
communications or deliveries to be provided by the Company hereunder shall be in writing and delivered personally, by e-mail, or sent
by a nationally recognized overnight courier service addressed to each Holder at the e-mail address or address of such Holder appearing
on the books of the Company. Any notice or other communication or deliveries hereunder shall be deemed given and effective on the earliest
of (i) the time of transmission, if such notice or communication is delivered via e-mail at the e-mail address set forth in this Section
prior to 5:30 p.m. (New York City time) on any date, (ii) the next Trading Day after the time of transmission, if such notice or communication
is delivered via e-mail at the e-mail address set forth in this Section on a day that is not a Trading Day or later than 5:30 p.m. (New
York City time) on any Trading Day, (iii) the second (2nd) Trading Day following the date
of mailing, if sent by U.S. nationally recognized overnight courier service, or (iv) upon actual receipt by the party to whom such notice
is required to be given. To the extent that any notice provided hereunder constitutes, or contains, material, non-public information regarding
the Company or any Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Current Report on
Form 8-K.
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 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, on the one hand, and the Holder, on the other hand.
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.
|
TREASURE GLOBAL INC |
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By: |
/s/ Chong Chan “Sam” Teo |
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Name: |
Chong Chan “Sam” Teo |
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Title: |
Chief Executive Officer and President |
EXHIBIT A
NOTICE OF EXERCISE
(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: __________________________________________________________________________________________
EXHIBIT B
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: |
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(Please Print) |
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Address: |
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(Please Print) |
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Phone Number: |
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Email Address: |
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Dated: _______________ __, ______ |
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Holder’s Signature: |
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Holder’s Address: |
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(Signature Guaranteed): |
Date: |
___________________, _____ |
Signature to be guaranteed by an authorized
officer of a chartered bank, trust company or medallion guaranteed by an investment dealer who is a member of a recognized stock exchange.
15
Exhibit 99.1
Treasure Global Inc Announces Pricing of $4.0 Million Underwritten
Public Offering
November 29, 2023 9:00am EST Download as PDF
NEW YORK and KUALA LUMPUR, Malaysia, Nov. 29, 2023 (GLOBE NEWSWIRE)
-- Treasure Global Inc (NASDAQ: TGL) (“TGL” or the “Company”), a leading innovative technology solutions provider,
today announced the pricing of its underwritten public offering of 26,014,000 shares (the “Shares”) of common stock, par value
$0.00001 per share (“Common Stock”), at a public offering price of $0.10 per share, and 14,000,000 pre-funded warrants (the
“Pre-Funded Warrants”), each with a right to purchase one share of Common Stock at a public offering price of $0.0999 per
Pre-Funded Warrant, for aggregate gross proceeds of approximately $4.0 million, prior to deducting underwriting discounts and other offering
expenses. In addition, the Company has granted the underwriters a 45-day option to purchase up to an additional 6,002,100 shares of Common
Stock at the public offering price per Share and/or pre-funded warrants in lieu thereof at the public offering price per Pre-Funded Warrant,
less the underwriting discounts to cover over-allotments, if any. The offering is expected to close on November 30, 2023, subject to satisfaction
of customary closing conditions.
EF Hutton, division of Benchmark Investments, LLC, is acting as the
lead book-running manager for the offering.
The Shares and the Pre-Funded Warrants and the over-allotment option
securities, if any, are being offered by the Company pursuant to a registration statement on Form S-1, as amended (File No. No. 333-275411),
which was filed with the U.S. Securities and Exchange Commission (SEC) and declared effective by the SEC on November 13, 2023, and the
accompanying preliminary prospectus contained therein. A final prospectus relating to the offering will be filed with the SEC.
Copies of the preliminary prospectus and the final prospectus, when
available, relating to this offering may be obtained on the SEC’s website at www.sec.gov or by contacting EF Hutton, division of
Benchmark Investments, LLC Attention: Syndicate Department, 590 Madison Avenue, 39th Floor, New York, NY 10022, by email at syndicate@efhuttongroup.com,
or by telephone at (212) 404-7002.
This press release shall not constitute an offer to sell or the solicitation
of an offer to buy any of the securities described herein, nor shall there be any sale of these securities in any state or jurisdiction
in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such
state or jurisdiction.
About Treasure Global Inc
Treasure Global is a Malaysian solutions provider developing innovative
technology platforms. Treasure Global has developed two technology solutions: the ZCITY App, a unique digital ecosystem that transforms
and simplifies the e-payment experience for consumers, while simultaneously allowing them to earn rewards; and TAZTE, a digital F&B
management system providing merchants with a one-stop management and automated solution to digitalize their businesses. Treasure Global
also acts as a master franchiser in Southeast Asia for popular restaurant chains, while providing them with the TAZTE solution. As of
November 6, 2023, ZCITY had over 2,660,000 registered users.
Forward-Looking Statements
This press release includes “forward-looking statements”
within the meaning of U.S. federal securities laws. Words such as “expect,” “estimate,” “project,”
“budget,” “forecast,” “anticipate,” “intend,” “plan,” “may,” “will,”
“could,” “should,” “believes,” “predicts,” “potential,” “continue”
and similar expressions are intended to identify such forward-looking statements. These forward-looking statements involve significant
risks and uncertainties that could cause the actual results to differ materially from the expected results and, consequently, you should
not rely on these forward-looking statements as predictions of future events. These forward-looking statements and factors that may cause
such differences include, without limitation, the risks disclosed in the Company’s Annual Report on Form 10-Q filed with the SEC
on November 14, 2023, and in the Company’s other filings with the SEC. Readers are cautioned not to place undue reliance upon any
forward-looking statements, which speak only as of the date made. Except as required by law, the Company disclaims any obligation to update
or publicly announce any revisions to any of the forward-looking statements contained in this press release.
For further information, please contact:
U.S. Investor Contact
Phill Carlson
KCSA Strategic Communications
ir_us@treasuregroup.co
Malaysian Investor Contacts
ir_my@treasuregroup.co
Media Contact
Sue Chuah, Chief Marketing Officer
Treasure Global Inc
mediacontact@treasuregroup.co
Exhibit 99.2
Treasure Global Inc Announces Closing of $4.0
Million Public Offering
NEW YORK and KUALA LUMPUR, Malaysia, Nov. 29,
2023 (GLOBE NEWSWIRE) -- Treasure Global Inc (NASDAQ: TGL) (“TGL” or the “Company”) today closed its previously
announced underwritten public offering of 26,014,000 shares (the “Shares”) of common stock, par value $ $0.00001 per share
(“Common Stock”), at a public offering price of $0.10 per share, and 14,000,000 pre-funded warrants (the “Pre-Funded
Warrants”), each with a right to purchase one share of Common Stock at a public offering price of $0.0999 per Pre-Funded Warrant,
for aggregate gross proceeds of approximately $4.0 million, prior to deducting underwriting discounts and other offering expenses. In
addition, the Company has granted the underwriters a 45-day option to purchase up to an additional 6,002,100 shares of Common Stock at
the public offering price per Share and/or pre-funded warrants in lieu thereof at the public offering price per Pre-Funded Warrant, less
the underwriting discounts to cover over-allotments, if any.
EF Hutton LLC (“EF Hutton”) acted
as the sole book running manager for the offering.
The offering was conducted pursuant to the Company’s
registration statement on Form S-1, as amended (File No. No. 333-275411), initially filed with the Securities and Exchange Commission
(“SEC”) on November 8, 2023, which was declared effective by the SEC on November 13, 2023. A final prospectus relating to
the offering was filed with the SEC on November 30, 2023 and is available on the SEC’s website at www.sec.gov. Electronic copies
of the final prospectus relating to this offering may be obtained from EF Hutton, 590 Madison Avenue, 39th Floor, New York, NY 10022,
Attention: Syndicate Department, or via email at syndicate@efhuttongroup.com or via telephone at (212) 404-7002.
This press release shall not constitute an offer
to sell or the solicitation of an offer to buy any of the securities described herein, nor shall there be any sale of these securities
in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under
the securities laws of any such state or jurisdiction.
About Treasure Global Inc
Treasure Global is a Malaysian solutions provider
developing innovative technology platforms. Treasure Global has developed two technology solutions: the ZCITY App, a unique digital ecosystem
that transforms and simplifies the e-payment experience for consumers, while simultaneously allowing them to earn rewards; and TAZTE,
a digital F&B management system providing merchants with a one-stop management and automated solution to digitalize their businesses.
Treasure Global also acts as a master franchiser in Southeast Asia for popular restaurant chains, while providing them with the TAZTE
solution. As of November 28, 2023, ZCITY had over 2,670,000 registered users.
Forward-Looking Statements
This press release includes “forward-looking statements”
within the meaning of U.S. federal securities laws. Words such as “expect,” “estimate,” “project,”
“budget,” “forecast,” “anticipate,” “intend,” “plan,” “may,” “will,”
“could,” “should,” “believes,” “predicts,” “potential,” “continue”
and similar expressions are intended to identify such forward-looking statements. These forward-looking statements involve significant
risks and uncertainties that could cause the actual results to differ materially from the expected results and, consequently, you should
not rely on these forward-looking statements as predictions of future events. These forward-looking statements and factors that may cause
such differences include, without limitation, the risks disclosed in the Company’s Annual Report on Form 10-K filed with the SEC
on September 28, 2023, and in the Company’s other filings with the SEC. Readers are cautioned not to place undue reliance upon any
forward-looking statements, which speak only as of the date made. Except as required by law, the Company disclaims any obligation to update
or publicly announce any revisions to any of the forward-looking statements contained in this press release.
For further information, please contact:
U.S. Investor Contact
Phill Carlson
KCSA Strategic Communications
ir_us@treasuregroup.co
Malaysian Investor Contacts
ir_my@treasuregroup.co
Media Contact
Sue Chuah, Chief Marketing Officer
Treasure Global Inc
mediacontact@treasuregroup.co
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Treasure Global (NASDAQ:TGL)
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From Jun 2023 to Jun 2024