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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): October 31, 2023
DOLPHIN
ENTERTAINMENT, INC.
(Exact name of registrant as specified in its charter)
Florida |
001-38331 |
86-0787790 |
(State
or other jurisdiction |
(Commission
|
(IRS
Employer |
of
incorporation) |
File
Number) |
Identification
No.) |
150
Alhambra Circle, Suite 1200,
Coral Gables, Florida
33134
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area
code (305) 774
-0407
Not Applicable
(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) |
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Name
of each exchange on which registered |
Common
Stock, $0.015 par value per share |
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DLPN |
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The Nasdaq
Capital Market |
Indicate by check mark whether the registrant is an emerging growth
company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934
(17 CFR §240.12b-2).
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 October 31, 2023, Dolphin Entertainment,
Inc. (the “Company”), entered into an Underwriting Agreement (the “Underwriting Agreement”) with
Maxim Group LLC (the “Underwriter”), pursuant to which the Company agreed to issue and sell to the Underwriter in an
underwritten public offering (the “Offering”) an aggregate of 1,400,000 shares (the “Shares”) of
common stock, $0.015 par value per share, of the Company (the “Common Stock”). Each share of Common Stock is being
offered and sold to the public for a public offering price of $1.65 per share. Under the terms of
the Underwriting Agreement, the Company granted the Underwriter an option, exercisable for 45 days, to purchase an additional 210,000
shares of common stock.
The Company intends to use the
net proceeds for working capital and other general corporate purposes. The Company may also use a portion of the net proceeds to acquire
or invest in complementary businesses. The Company received gross proceeds of approximately $2,310,000 before deducting underwriting discounts
and commissions and estimated offering expenses payable by the Company. The Offering closed on November 2, 2023.
The Underwriting Agreement contains
customary representations, warranties, and covenants by the Company. It also provides for customary indemnification by each of the Company
and the Underwriter, including for liabilities under the Securities Act of 1933, as amended (the “Securities Act”),
other obligations of the parties and termination provisions.
The Offering was made pursuant
to the Company’s effective “shelf” registration statement on Form S-3 and an accompanying prospectus (Registration No.
333-273431) filed with the Securities and Exchange Commission (the “SEC”) on July 25, 2023 and declared effective by
the SEC on August 3, 2023, as supplemented by the preliminary prospectus supplement filed with the SEC on October 30, 2023 and the final
prospectus supplement filed with the SEC on November 1, 2023.
A copy of the Underwriting Agreement
is attached as Exhibit 1.1 to this Current Report on Form 8-K, and is incorporated herein by reference. The foregoing description of the
material terms of the Underwriting Agreement does not purport to be complete and is qualified in its entirety by reference to such exhibit,
which is incorporated by reference. A copy of the legal opinion of K&L Gates LLP relating to the legality of the issuance and sale
of the Shares being sold in the Offering is filed as Exhibit 5.1 to this Current Report on Form 8-K.
The provisions of the Underwriting
Agreement, including the representations and warranties contained therein, are not for the benefit of any party other than the parties
to such agreement and are not intended as a document for investors or the public to obtain factual information about the current state
of affairs of the parties to that document. Rather, investors and the public should look to other disclosures contained in the Company’s
filings with the SEC, including the prospectus supplements.
Item 8.01 Other Events
On October 30, 2023, the Company
issued a press release announcing that it had commenced the Offering and on October 31, 2023, the Company issued a press release announcing
that it had priced the Offering. Copies of these press releases are attached as Exhibit 99.1 and 99.2 hereto, respectfully, and are 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.
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DOLPHIN ENTERTAINMENT, INC. |
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Date: November 2, 2023 |
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By: |
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/s/ Mirta A. Negrini |
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Mirta A. Negrini |
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Chief Financial and Operating Officer |
Exhibit 1.1
1,400,000
SHARES of Common Stock
Dolphin
Entertainment, Inc.
UNDERWRITING
AGREEMENT
October 31, 2023
Maxim Group LLC
As the Representative of the
Several underwriters,
if any, named in Schedule I hereto
c/o Maxim Group LLC
300 Park Avenue
New York, NY 10022
Ladies and Gentlemen:
The
undersigned, Dolphin Entertainment, Inc., a company incorporated under the laws of Florida (collectively with its subsidiaries and affiliates,
including, without limitation, all entities disclosed or described in the Registration Statement as being subsidiaries or affiliates
of Dolphin Entertainment, Inc., the “Company”), hereby confirms its agreement (this “Agreement”)
with the several underwriters (such underwriters, including the Representative (as defined below), the “Underwriters”
and each an “Underwriter”) named in Schedule I hereto for which Maxim Group LLC is acting as representative
to the several Underwriters (the “Representative” and if there are no Underwriters other than the Representative,
references to multiple Underwriters shall be disregarded and the term Representative as used herein shall have the same meaning as Underwriter)
on the terms and conditions set forth herein.
It
is understood that the several Underwriters are to make a public offering of the Public Shares as soon as the Representative deems it
advisable to do so. The Public Shares are to be initially offered to the public at the public offering price set forth in the Prospectus
Supplement.
It
is further understood that you will act as the Representative for the Underwriters in the offering and sale of the Closing Shares and,
if any, the Option Shares in accordance with this Agreement.
ARTICLE
I.
DEFINITIONS
1.1
Definitions. In addition to the terms defined elsewhere in this Agreement, for all purposes of this Agreement, the following
terms have the meanings set forth in this Section 1.1:
“Action”
shall have the meaning ascribed to such term in Section 3.1(k).
“Affiliate”
means with respect to any Person, any other Person that, directly or indirectly through one or more intermediaries, controls or is controlled
by or is under common control with such Person as such terms are used in and construed under Rule 405 under the Securities Act.
“Board
of Directors” means the board of directors of the Company.
“Business
Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized
or required by law to remain closed; provided, however, for clarification, commercial banks shall not be deemed to be authorized
or required by law to remain closed due to “stay at home”, “shelter-in-place”, “non-essential employee”
or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority
so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in The City of New York are generally
open for use by customers on such day.
“Closing”
means the closing of the purchase and sale of the Closing Shares pursuant to Section 2.1.
“Closing
Date” means the hour and the date on the Trading Day on which all conditions precedent to (i) the Underwriters’ obligations
to pay the Closing Purchase Price and (ii) the Company’s obligations to deliver the Closing Shares, in each case, have been satisfied
or waived, but in no event later than 10:00 a.m. (New York City time) on the second (2nd) Trading Day (or third (3rd) Trading
Day if this Agreement is executed after 4:00 p.m. (New York City Time) but prior to 11:59 p.m. (New York City Time)) following the date
hereof or at such earlier time as shall be agreed upon by the Representative and the Company.
“Closing
Purchase Price” shall have the meaning ascribed to such term in Section 2.1(b), which aggregate purchase price shall be net
of the underwriting discounts and commissions.
“Closing
Shares” shall have the meaning ascribed to such term in Section 2.1(a).
“Commission”
means the United States Securities and Exchange Commission.
“Common
Stock” means the common stock of the Company, par value $0.001 per share, and any other class of securities into which such
securities may hereafter be reclassified or changed.
“Common
Stock Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire
at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is
at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Company
Auditor” means Grant Thornton LLP, with offices located at 1301 International Parkway, Suite 300, Fort Lauderdale, FL 33323.
“Company
Counsel” means K&L Gates LLP, with offices located at Southeast Financial Center, 200 S. Biscayne Boulevard, Suite 3900,
Miami, FL 33131.
“Effective
Date” shall have the meaning ascribed to such term in Section 3.1(f).
“EGS”
means Ellenoff Grossman & Schole LLP, with offices located at 1345 Avenue of the Americas, New York, New York 10105.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Execution
Date” shall mean the date on which the parties execute and enter into this Agreement.
“FCPA”
means the Foreign Corrupt Practices Act of 1977, as amended.
“FINRA”
means the Financial Industry Regulatory Authority.
“GAAP”
shall have the meaning ascribed to such term in Section 3.1(i).
“Indebtedness”
means (a) any liabilities for borrowed money or amounts owed in excess of $50,000 (other than trade accounts payable incurred in the
ordinary course of business), (b) all guaranties, endorsements and other contingent obligations in respect of indebtedness of others,
whether or not the same are or should be reflected in the Company’s consolidated balance sheet (or the notes thereto), except guaranties
by endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business; and (c)
the present value of any lease payments in excess of $50,000 due under leases required to be capitalized in accordance with GAAP.
“Liens”
means a lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.
“Material
Adverse Effect” means (i) a material adverse effect on the legality, validity or enforceability of any Transaction Document,
(ii) a material adverse effect on the results of operations, assets, business, prospects or condition (financial or otherwise) of the
Company and the Subsidiaries, taken as a whole or (iii) a material adverse effect on the Company’s ability to perform in any material
respect on a timely basis its obligations under any Transaction Document.
“Offering”
shall have the meaning ascribed to such term in Section 2.1(c).
“Option”
shall have the meaning ascribed to such term in Section 2.2.
“Option
Closing Date” shall have the meaning ascribed to such term in Section 2.2(c).
“Option
Closing Purchase Price” shall have the meaning ascribed to such term in Section 2.2(b), which aggregate purchase price shall
be net of the underwriting discounts and commissions.
“Option
Securities” shall have the meaning ascribed to such term in Section 2.2(a).
“Option
Shares” shall have the meaning ascribed to such term in Section 2.2(a).
“Over-Allotment
Option” shall have the meaning ascribed to such term in Section 2.2.
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Preliminary
Prospectus” means the preliminary prospectus supplement relating to the Public Shares and filed with the Commission pursuant
to Rule 424(b) together with the Prospectus and Permitted Free Writing Prospectus.
“Proceeding”
means an action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation or partial proceeding,
such as a deposition), whether commenced or threatened.
“Prospectus”
means the final base prospectus included in the Registration Statement.
“Prospectus
Supplement” means the final prospectus supplement to the Prospectus relating to the Public Shares, together with the Prospectus
and Permitted Free Writing Prospectus, filed with the Commission pursuant to Rule 424(b) of the Securities Act.
“Public
Shares” means, collectively, the Closing Shares and, if any, the Option Shares.
“Registration
Statement” means, collectively, the various parts of the registration statement prepared by the Company on Form S-3 (File No.
333-273431) with respect to the Public Shares, each as amended as of the date hereof, including the Prospectus, Preliminary Prospectus
and Prospectus Supplement, and all exhibits filed with or incorporated by reference into such registration statement, and includes any
Rule 462(b) Registration Statement.
“Required
Approvals” shall have the meaning ascribed to such term in Section 3.1(e).
“Rule
424” means Rule 424 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted
from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect
as such Rule.
“Rule
462(b) Registration Statement” means any registration statement prepared by the Company registering additional Public Shares,
which was filed with the Commission on or prior to the date hereof and became automatically effective pursuant to Rule 462(b) promulgated
by the Commission pursuant to the Securities Act.
“SEC
Reports” shall have the meaning ascribed to such term in Section 3.1(i).
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Share
Purchase Price” shall have the meaning ascribed to such term in Section 2.1(b).
“Subsidiary”
means any subsidiary of the Company and shall, where applicable, also include any direct or indirect subsidiary of the Company formed
or acquired after the date hereof.
“Trading
Day” means a day on which the principal Trading Market is open for trading.
“Trading
Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date
in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, or the New York
Stock Exchange (or any successors to any of the foregoing).
“Transaction
Documents” means this Agreement and any other documents or agreements executed in connection with the transactions contemplated
hereunder.
“Transfer
Agent” means Nevada Agency and Transfer Company, the current transfer agent of the Company, with offices located at50 West
Liberty St., Suite 880, Reno, Nevada 89501, and any successor transfer agent of the Company.
ARTICLE
II.
PURCHASE AND
SALE
2.1
Closing.
(a)
Upon the terms and subject to the conditions set forth herein, the Company agrees to sell in the aggregate 1,400,000 shares of
Common Stock, and each Underwriter agrees to purchase, severally and not jointly, at the Closing, the number of shares of Common Stock
(the “Closing Shares”) set forth opposite the name of such Underwriter on Schedule I hereof.
(b)
The aggregate purchase price for the Closing Shares shall equal the amount set forth opposite the name of such Underwriter on
Schedule I hereto (the “Closing Purchase Price”). The purchase price for one Share shall be $1.518 per Share
(representing a 8% discount to the purchase price offered to the public, the “Share Purchase Price”).
(c)
On the Closing Date, each Underwriter shall deliver or cause to be delivered to the Company, via wire transfer, immediately available
funds equal to such Underwriter’s Closing Purchase Price and the Company shall deliver to, or as directed by, such Underwriter
its respective Closing Shares and the Company shall deliver the other items required pursuant to Section 2.3 deliverable at the Closing.
Upon satisfaction of the covenants and conditions set forth in Sections 2.3 and 2.4, the Closing shall occur at the offices of EGS or
such other location as the Company and Representative shall mutually agree. The Public Shares are to be offered initially to the public
at the offering price set forth on the cover page of the Prospectus Supplement (the “Offering”).
2.2
Over-Allotment Option.
(a)
For the purposes of covering any over-allotments in connection with the distribution and sale of the Closing Shares, the Representative
is hereby granted an option (the “Over-Allotment Option”) to purchase, in the aggregate, up to 210,000 shares of Common
Stock (the “Option Shares”) at the Share Purchase Price.
(b)
In connection with an exercise of the Over-Allotment Option, the purchase price to be paid for the Option Shares is equal to the
product of the Share Purchase Price multiplied by the number of Option Shares to be purchased (the aggregate purchase price to be paid
on an Option Closing Date, the “Option Closing Purchase Price”).
(c)
The Over-Allotment Option granted pursuant to this Section 2.2 may be exercised by the Representative as to all (at any time)
or any part (from time to time) of the Option Shares within 45 days after the Execution Date. An Underwriter will not be under any obligation
to purchase any Option Shares prior to the exercise of the Over-Allotment Option by the Representative. The Over-Allotment Option granted
hereby may be exercised by the giving of oral notice to the Company from the Representative, which must be confirmed in writing by overnight
mail or electronic transmission setting forth the number of Option Shares to be purchased and the date and time for delivery of and payment
for the Option Shares (each, an “Option Closing Date”), which will not be later than two (2) full Business Days after
the date of the notice or such other time as shall be agreed upon by the Company and the Representative, at the offices of EGS or at
such other place (including remotely by other electronic transmission) as shall be agreed upon by the Company and the Representative.
If such delivery and payment for the Option Shares does not occur on the Closing Date, each Option Closing Date will be as set forth
in the notice. Upon exercise of the Over-Allotment Option, the Company will become obligated to convey to the Underwriters, and, subject
to the terms and conditions set forth herein, the Underwriters will become obligated to purchase, the number of Option Shares specified
in such notice. The Representative may cancel the Over-Allotment Option at any time prior to the expiration of the Over-Allotment Option
by written notice to the Company.
2.3
Deliveries. The Company shall deliver or cause to be delivered to the Representative or each Underwriter (if applicable)
the following:
(i)
At the Closing Date, the Closing Shares and, as to each Option Closing Date, if any, the applicable Option Shares, which shares
shall be delivered via The Depository Trust Company Deposit or Withdrawal at Custodian system for the accounts of the several Underwriters
as directed by the Representative;
(ii)
At the Closing Date and at each Option Closing Date, if any, a legal opinion of Company Counsel addressed to the Underwriters,
including, without limitation, a negative assurance letter, in form and substance satisfactory in all respects to the Representative;
(iii)
Contemporaneously herewith, a cold comfort letter, addressed to the Underwriters and in form and substance satisfactory in all
respects to the Representative from the Company Auditor dated, respectively, as of the date of this Agreement and a bring-down letter
dated as of the Closing Date and each Option Closing Date, if any;
(iv)
On the Closing Date and on each Option Closing Date, if any, the duly executed and delivered Officer’s Certificate, in form
and substance satisfactory in all respects to the Representative;
(v)
On the Closing Date and on each Option Closing Date, if any, the duly executed and delivered Secretary’s Certificate, in
form and substance satisfactory in all respects to the Representative; and
(vi)
On the Closing Date and on each Option Closing Date, if any, the duly executed and delivered Chief Financial Officer’s Certificate,
in form and substance satisfactory in all respects to the Representative.
2.4
Closing Conditions. The respective obligations of each Underwriter hereunder in connection with the Closing and each Option
Closing Date are subject to the following conditions being met:
(i)
the accuracy in all material respects when made and on the date in question (other than representations and warranties of the
Company already qualified by materiality, which shall be true and correct in all respects) of the representations and warranties of the
Company contained herein (unless as of a specific date therein);
(ii)
all obligations, covenants and agreements of the Company required to be performed at or prior to the date in question shall have
been performed;
(iii)
the delivery by the Company of the items set forth in Section 2.3 of this Agreement;
(iv)
the Registration Statement shall be effective on the date of this Agreement and at each of the Closing Date and each Option Closing
Date, if any, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or shall be pending or contemplated by the Commission and any request on the part of the Commission
for additional information shall have been complied with to the reasonable satisfaction of the Representative;
(v)
by the Execution Date, if required by FINRA, the Underwriters shall have received clearance from FINRA as to the amount of compensation
allowable or payable to the Underwriters as described in the Registration Statement;
(vi)
the Closing Shares and the Option Shares have been approved for listing on the Trading Market; and
(vii)
prior to and on each of the Closing Date and each Option Closing Date, if any: (i) there shall have been no material adverse
change or development involving a prospective material adverse change in the condition or prospects or the business activities, financial
or otherwise, of the Company from the latest dates as of which such condition is set forth in the Registration Statement, Preliminary
Prospectus, and the Prospectus Supplement; (ii) no action suit or proceeding, at law or in equity, shall have been pending or threatened
against the Company or any Affiliate of the Company before or by any court or federal or state commission, board or other administrative
agency wherein an unfavorable decision, ruling or finding may materially adversely affect the business, operations, prospects or financial
condition or income of the Company, except as set forth in the Registration Statement, Preliminary Prospectus, and the Prospectus Supplement;
(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; (iv) the Company has not incurred any material liabilities or obligations, direct or contingent, nor has it entered
into any material transactions not in the ordinary course of business, other than pursuant to this Agreement and the transactions referred
to herein, except as set forth in the Registration Statement, Preliminary Prospectus, and the Prospectus Supplement; (v) the Company
has not paid or declared any dividends or other distributions of any kind on any class of its capital stock; (vi) the Company has not
altered its method of accounting; and (vii) the Registration Statement, Preliminary Prospectus, and the Prospectus Supplement
and any amendments or supplements thereto shall contain all material statements which are required to be stated therein in accordance
with the Securities Act and the rules and regulations thereunder and shall conform in all material respects to the requirements of the
Securities Act and the rules and regulations thereunder, and none of the Registration Statement, nor the Preliminary Prospectus nor the
Prospectus Supplement 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.
ARTICLE
III.
REPRESENTATIONS
AND WARRANTIES
3.1
Representations and Warranties of the Company. The Company represents and warrants to the Underwriters as of the Execution
Date, as of the Closing Date and as of each Option Closing Date, if any, as follows:
(a)
Subsidiaries. All of the direct and indirect Subsidiaries of the Company are set forth in the SEC Reports. The Company
owns, directly or indirectly, all of the capital stock or other equity interests of each Subsidiary free and clear of any Liens, and
all of the issued and outstanding shares of capital stock of each Subsidiary are validly issued and are fully paid, non-assessable and
free of preemptive and similar rights to subscribe for or purchase securities. If the Company has no Subsidiaries, all other references
to the Subsidiaries or any of them in the Transaction Documents shall be disregarded.
(b)
Organization and Qualification. The Company and each of the Subsidiaries is an entity duly incorporated or otherwise organized,
validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite power
and authority to own and use its properties and assets and to carry on its business as currently conducted. Neither the Company nor any
Subsidiary is in violation nor default of any of the provisions of its respective certificate or articles of incorporation, bylaws or
other organizational or charter documents. Each of the Company and the Subsidiaries is duly qualified to conduct business and is in good
standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned
by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be, could
not have or could not have reasonably be expected to result in a Material Adverse Effect and no Proceeding has been instituted in any
such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority or qualification.
(c)
Authorization; Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate
the transactions contemplated by this Agreement and each of the other Transaction Documents to which the Company is a party and otherwise
to carry out its obligations hereunder and thereunder. The execution and delivery of this Agreement and each of the other Transaction
Documents by the Company and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by
all necessary action on the part of the Company and no further action is required by the Company, the Board of Directors or the Company’s
stockholders in connection herewith or therewith other than in connection with the Required Approvals. This Agreement and each other
Transaction Document to which the Company is a party has been (or upon delivery will have been) duly executed by the Company and, when
delivered in accordance with the terms hereof and thereof, will constitute the valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as
limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar
as indemnification and contribution provisions may be limited by applicable law.
(d)
No Conflicts. The execution, delivery and performance by the Company of this Agreement and the other Transaction Documents
to which it is a party, the issuance and sale of the Public Shares and the consummation by it of the transactions contemplated hereby
and thereby do not and will not (i) conflict with or violate any provision of the Company’s or any Subsidiary’s certificate
or articles of incorporation, bylaws or other organizational or charter documents, or (ii) conflict with, or constitute a default (or
an event that with notice or lapse of time or both would become a default) under, result in the creation of any Lien upon any of the
properties or assets of the Company or any Subsidiary, or give to others any rights of termination, amendment, anti-dilution or similar
adjustments, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or
other instrument (evidencing a Company or Subsidiary debt or otherwise) or other understanding to which the Company or any Subsidiary
is a party or by which any property or asset of the Company or any Subsidiary is bound or affected, or (iii) subject to the Required
Approvals, conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction
of any court or governmental authority to which the Company or a Subsidiary is subject (including federal and state securities laws and
regulations), or by which any property or asset of the Company or a Subsidiary is bound or affected; except in the case of each of clauses
(ii) and (iii), such as could not have or reasonably be expected to result in a Material Adverse Effect.
(e)
Filings, Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of,
give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority
or other Person in connection with the execution, delivery and performance by the Company of the Transaction Documents, other than: (i)
the filing with the Commission of the Prospectus Supplement, (ii) filings with the Trading Market and (iii) such filings as are required
to be made under applicable state securities laws (collectively, the “Required Approvals”).
(f)
Registration Statement. The Company has filed with the Commission the Registration Statement under the Securities Act,
which became effective on August 3, 2023 (the “Effective Date”), for the registration under the Securities Act of
the Securities. At the time of such filing, the Company met the requirements of Form S-3 under the Securities Act. The Registration Statement
meets the requirements set forth in Rule 415(a)(1)(x) under the Securities Act and complies with said Rule and the Prospectus Supplement
will meet the requirements set forth in Rule 424(b). The Company is eligible to use Form S-3 under the Securities Act and it meets the
transaction requirements with respect to the aggregate market value of securities being sold pursuant to this offering and during the
twelve (12) months prior to this offering, as set forth in General Instruction I.B.6 of Form S-3. The Company has advised the Representative
of all further information (financial and other) with respect to the Company required to be set forth therein in the Registration Statement
and Prospectus Supplement. Any reference in this Agreement to the Registration Statement, the Prospectus, the Preliminary Prospectus
or the Prospectus Supplement shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item
12 of Form S-3 which were filed under the Exchange Act, on or before the date of this Agreement, or the issue date of the Prospectus,
the Preliminary Prospectus or the Prospectus Supplement, as the case may be; and any reference in this Agreement to the terms “amend,”
“amendment” or “supplement” with respect to the Registration Statement, the Prospectus, the Preliminary Prospectus
or the Prospectus Supplement shall be deemed to refer to and include the filing of any document under the Exchange Act after the date
of this Agreement, or the issue date of the , the Preliminary Prospectus or the Prospectus Supplement, as the case may be, deemed to
be incorporated therein by reference. All references in this Agreement to financial statements and schedules and other information which
is “contained,” “included,” “described,” “referenced,” “set forth” or “stated”
in the Registration Statement, the Prospectus, the Preliminary Prospectus or the Prospectus Supplement (and all other references of like
import) shall be deemed to mean and include all such financial statements and schedules and other information which is or is deemed to
be incorporated by reference in the Registration Statement, the Prospectus, the Preliminary Prospectus or the Prospectus Supplement,
as the case may be. No stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus, the Preliminary
Prospectus or the Prospectus Supplement has been issued, and no proceeding for any such purpose is pending or has been initiated or,
to the Company's knowledge, is threatened by the Commission. For purposes of this Agreement, “free writing prospectus”
has the meaning set forth in Rule 405 under the Securities Act. The Company will not, without the prior consent of the Representative,
prepare, use or refer to, any free writing prospectus.
(g)
Issuance of Securities. The Public Shares are duly authorized and, when issued and paid for in accordance with the applicable
Transaction Documents, will be duly and validly issued, fully paid and non-assessable, free and clear of all Liens imposed by the Company.
The Company has reserved from its duly authorized capital stock the maximum number of shares of Common Stock issuable pursuant to this
Agreement. The holder of the Public Shares will not be subject to personal liability by reason of being such holders. The Public Shares
are not and will not be subject to the preemptive rights of any holders of any security of the Company or similar contractual rights
granted by the Company. All corporate action required to be taken for the authorization, issuance and sale of the Public Shares has been
duly and validly taken. The Public Shares conform in all material respects to all statements with respect thereto contained in the Registration
Statement.
(h)
Capitalization. The capitalization of the Company is as set forth in the SEC Reports. The Company has not issued any capital
stock since its most recently filed periodic report under the Exchange Act, other than pursuant to the exercise of employee stock options
under the Company’s stock option plans, the issuance of shares of Common Stock to employees pursuant to the Company’s employee
stock purchase plans and pursuant to the conversion and/or exercise of Common Stock Equivalents outstanding as of the date of the most
recently filed periodic report under the Exchange Act, or as disclosed in the SEC Reports. No Person has any right of first refusal,
preemptive right, right of participation, or any similar right to participate in the transactions contemplated by the Transaction Documents.
Except as a result of the purchase and sale of the Closing Shares, there are no outstanding options, warrants, scrip rights to subscribe
to, calls or commitments of any character whatsoever relating to, or securities, rights or obligations convertible into or exercisable
or exchangeable for, or giving any Person any right to subscribe for or acquire, any shares of Common Stock or the capital stock of any
Subsidiary, or contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound to
issue additional shares of Common Stock or Common Stock Equivalents or the capital stock of any Subsidiary, except as disclosed in the
SEC Reports. The issuance and sale of the Public Shares will not obligate the Company or any Subsidiary to issue shares of Common Stock
or other securities to any Person (other than the Underwriters) and will not result in a right of any holder of Company securities to
adjust the exercise, conversion, exchange or reset price under any of such securities. There are no outstanding securities or instruments
of the Company or any Subsidiary with any provision that adjusts the exercise, conversion, exchange or reset price of such security or
instrument upon an issuance of securities by the Company or any Subsidiary. There are no outstanding securities or instruments of the
Company or any Subsidiary that contain any redemption or similar provisions, and there are no contracts, commitments, understandings
or arrangements by which the Company or any Subsidiary is or may become bound to redeem a security of the Company or such Subsidiary.
The Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement.
All of the outstanding shares of capital stock of the Company are duly authorized, validly issued, fully paid and nonassessable, have
been issued in compliance with all federal and state securities laws, and none of such outstanding shares was issued in violation of
any preemptive rights or similar rights to subscribe for or purchase securities. The authorized shares of the Company conform in all
material respects to all statements relating thereto contained in the Registration Statement, the Prospectus, and the Prospectus Supplement.
The offers and sales of the Company’s securities were at all relevant times either registered under the Securities Act and the
applicable state securities or Blue Sky laws or, based in part on the representations and warranties of the purchasers, exempt from such
registration requirements. No further approval or authorization of any stockholder, the Board of Directors or others is required for
the issuance and sale of the Public Shares. There are no stockholders agreements, voting agreements or other similar agreements with
respect to the Company’s capital stock to which the Company is a party or, to the knowledge of the Company, between or among any
of the Company’s stockholders.
(i)
SEC Reports; Financial Statements. Except as disclosed in the SEC Reports, the Company has filed all reports, schedules,
forms, statements and other documents required to be filed by the Company under the Securities Act and the Exchange Act, including pursuant
to Section 13(a) or 15(d) thereof, for the two years preceding the date hereof (or such shorter period as the Company was required by
law or regulation to file such material) (the foregoing materials, including the exhibits thereto and documents incorporated by reference
therein, together with the Registration Statement, Prospectus, the Preliminary Prospectus and the Prospectus Supplement, being collectively
referred to herein as the “SEC Reports”) on a timely basis or has received a valid extension of such time of filing
and has filed any such SEC Reports prior to the expiration of any such extension. As of their respective dates, the SEC Reports complied
in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable, and none of the SEC Reports,
when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary
in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The financial
statements of the Company included in the SEC Reports comply in all material respects with applicable accounting requirements and the
rules and regulations of the Commission with respect thereto as in effect at the time of filing. The selected financial data set forth
under the caption “Selected Financial Data” in the SEC Reports fairly present, on the basis stated in the Registration Statement,
the Preliminary Prospectus, the Prospectus, the Prospectus Supplement, and the information included therein. The pro forma financial
statements included in the Registration Statement, the Preliminary Prospectus, the Prospectus, and the Prospectus Supplement include
assumptions that provide a reasonable basis for presenting the significant effects directly attributable to the transactions and events
described therein, the related pro forma adjustments give appropriate effect to those assumptions, and the pro forma adjustments reflect
the proper application of those adjustments to the historical financial statement amounts in the pro forma financial statements included
in the Registration Statement, the Preliminary Prospectus, the Prospectus, and the Prospectus Supplement. The pro forma financial statements
included in the Registration Statement, the Preliminary Prospectus the Prospectus, and the Prospectus Supplement comply as to form in
all material respects with the applicable accounting requirements of Regulation S-X under the Securities Act and the pro forma adjustments
have been properly applied to the historical amounts in the compilation of those statements. Such financial statements have been prepared
in accordance with United States generally accepted accounting principles applied on a consistent basis during the periods involved (“GAAP”),
except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements
may not contain all footnotes required by GAAP, and fairly present in all material respects the financial position of the Company and
its consolidated Subsidiaries as of and for the dates thereof and the results of operations and cash flows for the periods then ended,
subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments. The agreements and documents described
in the Registration Statement, the Prospectus, the Preliminary Prospectus, the Prospectus Supplement and the SEC Reports conform to the
descriptions thereof contained therein and there are no agreements or other documents required by the Securities Act and the rules and
regulations thereunder to be described in the Registration Statement, the Prospectus, the Preliminary Prospectus, the Prospectus Supplement
or the SEC Reports or to be filed with the Commission as exhibits to the Registration Statement, that have not been so described or filed.
Each agreement or other instrument (however characterized or described) to which the Company is a party or by which it is or may be bound
or affected and (i) that is referred to in the Registration Statement, the Prospectus, the Preliminary Prospectus, the Prospectus
Supplement or the SEC Reports, or (ii) is material to the Company’s business, has been duly authorized and validly executed
by the Company, is in full force and effect in all material respects and is enforceable against the Company and, to the Company’s
knowledge, the other parties thereto, in accordance with its terms, except (x) as such enforceability may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting creditors’ rights generally, (y) as enforceability of any indemnification
or contribution provision may be limited under the federal and state securities laws, and (z) that the remedy of specific performance
and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before
which any proceeding therefore may be brought. None of such agreements or instruments has been assigned by the Company, and neither the
Company nor, to the best of the Company’s knowledge, any other party is in default thereunder and, to the best of the Company’s
knowledge, no event has occurred that, with the lapse of time or the giving of notice, or both, would constitute a default thereunder.
To the best of the Company’s knowledge, performance by the Company of the material provisions of such agreements or instruments
will not result in a violation of any existing applicable law, rule, regulation, judgment, order or decree of any governmental agency
or court, domestic or foreign, having jurisdiction over the Company or any of its assets or businesses, including, without limitation,
those relating to environmental laws and regulations.
(j)
Material Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest audited financial statements
included within the SEC Reports, except as specifically disclosed in a subsequent SEC Report filed prior to the date hereof, (i) there
has been no event, occurrence or development that has had or that could reasonably be expected to result in a Material Adverse Effect,
(ii) the Company has not incurred any liabilities (contingent or otherwise) other than (A) trade payables and accrued expenses incurred
in the ordinary course of business consistent with past practice and (B) liabilities not required to be reflected in the Company’s
financial statements pursuant to GAAP or disclosed in filings made with the Commission, (iii) the Company has not altered its method
of accounting, (iv) the Company has not declared or made any dividend or distribution of cash or other property to its stockholders or
purchased, redeemed or made any agreements to purchase or redeem any shares of its capital stock, (v) the Company has not issued any
equity securities to any officer, director or Affiliate, except pursuant to existing Company stock option plans and (vi) no officer or
director of the Company has resigned from any position with the Company. The Company does not have pending before the Commission any
request for confidential treatment of information. Except for the issuance of the Public Shares contemplated by this Agreement, no event,
liability, fact, circumstance, occurrence or development has occurred or exists or is reasonably expected to occur or exist with respect
to the Company or its Subsidiaries or their respective businesses, prospects, properties, operations, assets or financial condition that
would be required to be disclosed by the Company under applicable securities laws at the time this representation is made or deemed made
that has not been publicly disclosed at least one (1) Trading Day prior to the date that this representation is made. Unless otherwise
disclosed in an SEC Report filed prior to the date hereof, 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.
(k)
Litigation. There is no action, suit, inquiry, notice of violation, proceeding or investigation pending or, to the knowledge
of the Company, threatened against or affecting the Company, any Subsidiary or any of their respective properties before or by any court,
arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign) (collectively, an
“Action”) which (i) adversely affects or challenges the legality, validity or enforceability of this Agreement or
any of any of the Transaction Documents or the Public Shares or (ii) could, if there were an unfavorable decision, have or reasonably
be expected to result in a Material Adverse Effect. Neither the Company nor any Subsidiary, nor any director or officer thereof, is or
has been the subject of any Action involving a claim of violation of or liability under federal or state securities laws or a claim of
breach of fiduciary duty. There has not been, and to the knowledge of the Company, there is not pending or contemplated, any investigation
by the Commission involving the Company or any current or former director or officer of the Company. The Commission has not issued any
stop order or other order suspending the effectiveness of any registration statement filed by the Company or any Subsidiary under the
Exchange Act or the Securities Act.
(l)
Labor Relations. No labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the employees
of the Company, which could reasonably be expected to result in a Material Adverse Effect. None of the Company’s or its Subsidiaries’
employees is a member of a union that relates to such employee’s relationship with the Company or such Subsidiary, and neither
the Company nor any of its Subsidiaries is a party to a collective bargaining agreement, and the Company and its Subsidiaries believe
that their relationships with their employees are good. To the knowledge of the Company, no executive officer of the Company or any Subsidiary,
is, or is now expected to be, in violation of any material term of any employment contract, confidentiality, disclosure or proprietary
information agreement or non-competition agreement, or any other contract or agreement or any restrictive covenant in favor of any third
party, and the continued employment of each such executive officer does not subject the Company or any of its Subsidiaries to any liability
with respect to any of the foregoing matters. The Company and its Subsidiaries are in compliance with all U.S. federal, state, local
and foreign laws and regulations relating to employment and employment practices, terms and conditions of employment and wages and hours,
except where the failure to be in compliance could not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect.
(m)
Compliance. Neither the Company nor any Subsidiary: (i) is in default under or in violation of (and no event has occurred
that has not been waived that, with notice or lapse of time or both, would result in a default by the Company or any Subsidiary under),
nor has the Company or any Subsidiary received notice of a claim that it is in default under or that it is in violation of, any indenture,
loan or credit agreement or any other agreement or instrument to which it is a party or by which it or any of its properties is bound
(whether or not such default or violation has been waived), (ii) is in violation of any judgment, decree or order of any court, arbitrator
or other governmental authority or (iii) is or has been in violation of any statute, rule, ordinance or regulation of any governmental
authority, including without limitation all foreign, federal, state and local laws relating to taxes, environmental protection, occupational
health and safety, product quality and safety and employment and labor matters, except in each case as could not have or reasonably be
expected to result in a Material Adverse Effect.
(n)
Regulatory Permits. The Company and the Subsidiaries possess all certificates, authorizations and permits issued by the
appropriate federal, state, local or foreign regulatory authorities necessary to conduct their respective businesses as described in
the SEC Reports, except where the failure to possess such permits could not reasonably be expected to result in a Material Adverse Effect
(each, a “Material Permit”), and neither the Company nor any Subsidiary has received any notice of proceedings relating
to the revocation or modification of any Material Permit. The disclosures in the Registration Statement concerning the effects of Federal,
State, local and all foreign regulation on the Company’s business as currently contemplated are correct in all material respects.
(o)
Title to Assets. The Company and the Subsidiaries have good and marketable title in fee simple to, or have valid and marketable
rights to lease or otherwise use, all real property and all personal property that is material to the business of the Company and the
Subsidiaries, in each case free and clear of all Liens, except for (i) Liens that do not materially affect the value of such property
and do not materially interfere with the use made and proposed to be made of such property by the Company and the Subsidiaries and (ii)
Liens for the payment of federal, state or other taxes, for which appropriate reserves have been made therefor in accordance with GAAP,
and the payment of which is neither delinquent nor subject to penalties. Any real property and facilities held under lease by the Company
and the Subsidiaries are held by them under valid, subsisting and enforceable leases with which the Company and the Subsidiaries are
in compliance.
(p)
Intellectual Property. The Company and the Subsidiaries have, or have rights to use, all patents, patent applications,
trademarks, trademark applications, service marks, trade names, trade secrets, inventions, copyrights, licenses and other intellectual
property rights and similar rights necessary or required for use in connection with their respective businesses as described in the SEC
Reports and which the failure to do so could have a Material Adverse Effect (collectively, the “Intellectual Property Rights”).
None of, and neither the Company nor any Subsidiary has received a notice (written or otherwise) that any of, the Intellectual Property
Rights has expired, terminated or been abandoned, or is expected to expire or terminate or be abandoned, within two (2) years from the
date of this Agreement. Neither the Company nor any Subsidiary has received, since the date of the latest audited financial statements
included within the SEC Reports, a written notice of a claim or otherwise has any knowledge that the Intellectual Property Rights violate
or infringe upon the rights of any Person. To the knowledge of the Company, all such Intellectual Property Rights are enforceable and
there is no existing infringement by another Person of any of the Intellectual Property Rights. The Company and its Subsidiaries have
taken reasonable security measures to protect the secrecy, confidentiality and value of all of their intellectual properties, except
where failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(q)
Insurance. The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such
losses and risks and in such amounts as are prudent and customary in the businesses in which the Company and the Subsidiaries are engaged,
including, but not limited to, directors and officers insurance coverage. Neither the Company nor any Subsidiary has any reason to believe
that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business without a significant increase in cost.
(r)
Transactions With Affiliates and Employees. Except as set forth in the SEC Reports, none of the officers or directors of
the Company or any Subsidiary and, to the knowledge of the Company, none of the employees of the Company or any Subsidiary is presently
a party to any transaction with the Company or any Subsidiary (other than for services as employees, officers and directors), including
any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal
property to or from, providing for the borrowing of money from or lending of money to or otherwise requiring payments to or from, any
officer, director or such employee or, to the knowledge of the Company, any entity in which any officer, director, or any such employee
has a substantial interest or is an officer, director, trustee, stockholder, member or partner, in each case in excess of $120,000 other
than for (i) payment of salary or consulting fees for services rendered, (ii) reimbursement for expenses incurred on behalf of the Company
and (iii) other employee benefits, including stock option agreements under any stock option plan of the Company.
(s)
Sarbanes-Oxley; Internal Accounting Controls. The Company and the Subsidiaries are in compliance with any and all applicable
requirements of the Sarbanes-Oxley Act of 2002 that are effective as of the date hereof, and any and all applicable rules and regulations
promulgated by the Commission thereunder that are effective as of the date hereof and as of the Closing Date. Except as disclosed in
the SEC Reports filed by the Company prior to the date hereof, the Company and the Subsidiaries maintain a system of internal accounting
controls sufficient to provide reasonable assurance that: (i) transactions are executed in accordance with management’s general
or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with
GAAP and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management’s general or
specific authorization, and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals
and appropriate action is taken with respect to any differences. Except as disclosed in the SEC Reports filed by the Company prior to
the date hereof, the Company and the Subsidiaries have established disclosure controls and procedures (as defined in Exchange Act Rules
13a-15(e) and 15d-15(e)) for the Company and the Subsidiaries and designed such disclosure controls and procedures to ensure that information
required to be disclosed by the Company in the reports it files or submits under the Exchange Act is recorded, processed, summarized
and reported, within the time periods specified in the Commission’s rules and forms. The Company’s certifying officers have
evaluated the effectiveness of the disclosure controls and procedures of the Company and the Subsidiaries as of the end of the period
covered by the most recently filed periodic report under the Exchange Act (such date, the “Evaluation Date”). The
Company presented in its most recently filed periodic report under the Exchange Act the conclusions of the certifying officers about
the effectiveness of the disclosure controls and procedures based on their evaluations as of the Evaluation Date. Since the Evaluation
Date, there have been no changes in the internal control over financial reporting (as such term is defined in the Exchange Act) of the
Company and its Subsidiaries that have materially affected, or is reasonably likely to materially affect, the internal control over financial
reporting of the Company and its Subsidiaries.
(t)
Certain Fees. Except as set forth in the Prospectus or the Prospectus Supplement, no brokerage or finder’s fees or
commissions are or will be payable by the Company, any Subsidiary or Affiliate of the Company to any broker, financial advisor or consultant,
finder, placement agent, investment banker, bank or other Person with respect to the transactions contemplated by the Transaction Documents.
To the Company’s knowledge, there are no other arrangements, agreements or understandings of the Company or, to the Company’s
knowledge, any of its stockholders that may affect the Underwriters’ compensation, as determined by FINRA. The Company has not
made any direct or indirect payments (in cash, securities or otherwise) to: (i) any person, as a finder’s fee, 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 months prior to the Execution Date. None of the net proceeds of the Offering
will be paid by the Company to any participating FINRA member or its affiliates, except as specifically authorized herein.
(u)
Investment Company. The Company is not, and is not an Affiliate of, and immediately after receipt of payment for the Public
Shares will not be or be an Affiliate of, an “investment company” within the meaning of the Investment Company Act of 1940,
as amended. The Company shall conduct its business in a manner so that it will not become an “investment company” subject
to registration under the Investment Company Act of 1940, as amended.
(v)
Registration Rights. No Person has any right to cause the Company or any Subsidiary to effect the registration under the
Securities Act of any securities of the Company or any Subsidiary.
(w)
Listing and Maintenance Requirements. The Common Stock is registered pursuant to Section 12(b) of the Exchange Act, and
the Company has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration
of the Common Stock under the Exchange Act nor has the Company received any notification that the Commission is contemplating terminating
such registration. The Company has not, in the 12 months preceding the date hereof, received notice from any Trading Market on which
the Common Stock is or has been listed or quoted to the effect that the Company is not in compliance with the listing or maintenance
requirements of such Trading Market. The Company is, and has no reason to believe that it will not in the foreseeable future continue
to be, in compliance with all such listing and maintenance requirements. The Common Stock is currently eligible for electronic transfer
through the Depository Trust Company or another established clearing corporation and the Company is current in payment of the fees of
the Depository Trust Company (or such other established clearing corporation) in connection with such electronic transfer.
(x)
Application of Takeover Protections. The Company and the Board of Directors have taken all necessary action, if any, in
order to render inapplicable any control share acquisition, business combination, poison pill (including any distribution under a rights
agreement) or other similar anti-takeover provision under the Company’s certificate of incorporation (or similar charter documents)
or the laws of its state of incorporation that is or could become applicable as a result of the Underwriters and the Company fulfilling
their obligations or exercising their rights under the Transaction Documents.
(y)
Disclosure; 10b-5. The Registration Statement (and any further documents to be filed with the Commission) contains all
exhibits and schedules as required by the Securities Act. Each of the Registration Statement and any post-effective amendment thereto,
if any, at the time it became effective, complied in all material respects with the Securities Act and the Exchange Act and the applicable
rules and regulations under the Securities Act and did not and, as amended or supplemented, if applicable, will not, contain any untrue
statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein
not misleading. The Preliminary Prospectus, Prospectus and the Prospectus Supplement, each as of its respective date, comply in all material
respects with the Securities Act and the Exchange Act and the applicable rules and regulations. Each of the Preliminary Prospectus, Prospectus
and the Prospectus Supplement, as amended or supplemented, did not and will not contain as of the date thereof any untrue statement of
a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under
which they were made, not misleading. The SEC Reports, when they were filed with the Commission, conformed in all material respects to
the requirements of the Exchange Act and the applicable rules and regulations, and none of such documents, when they were filed with
the Commission, contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements
therein (with respect to the SEC Reports incorporated by reference in the Preliminary Prospectus, Prospectus or Prospectus Supplement),
in light of the circumstances under which they were made not misleading; and any further documents so filed and incorporated by reference
in the Preliminary Prospectus, Prospectus or Prospectus Supplement, when such documents are filed with the Commission, will conform in
all material respects to the requirements of the Exchange Act and the applicable rules and regulations, as applicable, and will not contain
any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances
under which they were made not misleading. No post-effective amendment to the Registration Statement reflecting any facts or events arising
after the date thereof which represent, individually or in the aggregate, a fundamental change in the information set forth therein is
required to be filed with the Commission. There are no documents required to be filed with the Commission in connection with the transaction
contemplated hereby that (x) have not been filed as required pursuant to the Securities Act or (y) will not be filed within the requisite
time period. There are no contracts or other documents required to be described in the Preliminary Prospectus, Prospectus or Prospectus
Supplement, or to be filed as exhibits or schedules to the Registration Statement, which have not been described or filed as required.
The press releases disseminated by the Company during the twelve months preceding the date of this Agreement taken as a whole do not
contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under which they were made and when made, not misleading.
(z)
No Integrated Offering. Neither the Company, nor any of its Affiliates, nor any Person acting on its or their behalf has,
directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, under circumstances that
would cause this offering of the Public Shares to be integrated with prior offerings by the Company for purposes of any applicable shareholder
approval provisions of any Trading Market on which any of the securities of the Company are listed or designated.
(aa)
Solvency. Based on the consolidated financial condition of the Company as of the Closing Date, after giving effect to the
receipt by the Company of the proceeds from the sale of the Public Shares hereunder, (i) the fair saleable value of the Company’s
assets exceeds the amount that will be required to be paid on or in respect of the Company’s existing debts and other liabilities
(including known contingent liabilities) as they mature, (ii) the Company’s assets do not constitute unreasonably small capital
to carry on its business as now conducted and as proposed to be conducted including its capital needs taking into account the particular
capital requirements of the business conducted by the Company, consolidated and projected capital requirements and capital availability
thereof, and (iii) the current cash flow of the Company, together with the proceeds the Company would receive, were it to liquidate all
of its assets, after taking into account all anticipated uses of the cash, would be sufficient to pay all amounts on or in respect of
its liabilities when such amounts are required to be paid. The Company does not intend to incur debts beyond its ability to pay such
debts as they mature (taking into account the timing and amounts of cash to be payable on or in respect of its debt). The Company has
no knowledge of any facts or circumstances which lead it to believe that it will file for reorganization or liquidation under the bankruptcy
or reorganization laws of any jurisdiction within one (1) year from the Closing Date. The SEC Reports set forth as of the date thereof
all outstanding secured and unsecured Indebtedness of the Company or any Subsidiary, or for which the Company or any Subsidiary has commitments.
Neither the Company nor any Subsidiary is in default with respect to any Indebtedness.
(bb)
Tax Status. Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result
in a Material Adverse Effect, the Company and its Subsidiaries each (i) has made or filed all United States federal, state and local
income and all foreign income and franchise tax returns, reports and declarations required by any jurisdiction to which it is subject,
(ii) has paid all taxes and other governmental assessments and charges that are material in amount, shown or determined to be due on
such returns, reports and declarations and (iii) has set aside on its books provision reasonably adequate for the payment of all material
taxes for periods subsequent to the periods to which such returns, reports or declarations apply. There are no unpaid taxes in any material
amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company or of any Subsidiary know of no
basis for any such claim. The provisions for taxes payable, if any, shown on the financial statements filed with or as part of the Registration
Statement are sufficient for all accrued and unpaid taxes, whether or not disputed, and for all periods to and including the dates of
such consolidated financial statements. The term “taxes” mean all federal, state, local, foreign, and other net income, gross
income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll,
employment, excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties or other taxes, fees, assessments,
or charges of any kind whatsoever, together with any interest and any penalties, additions to tax, or additional amounts with respect
thereto. The term “returns” means all returns, declarations, reports, statements, and other documents required to be filed
in respect to taxes.
(cc)
Foreign Corrupt Practices. Neither the Company nor any Subsidiary, nor to the knowledge of the Company or any Subsidiary,
any agent or other person acting on behalf of the Company or any Subsidiary, has (i) directly or indirectly, used any funds for unlawful
contributions, gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful
payment to foreign or domestic government officials or employees or to any foreign or domestic political parties or campaigns from corporate
funds, (iii) failed to disclose fully any contribution made by the Company or any Subsidiary (or made by any person acting on its behalf
of which the Company is aware) which is in violation of law, or (iv) violated in any material respect any provision of FCPA. The Company
has taken reasonable steps to ensure that its accounting controls and procedures are sufficient to cause the Company to comply in all
material respects with the FCPA.
(dd)
Accountants. To the knowledge and belief of the Company, the Company Auditor (i) is an independent registered public accounting
firm as required by the Exchange Act and (ii) shall express its opinion with respect to the financial statements to be included in the
Company’s Annual Report for the fiscal year ending December 31, 2023. The Company Auditor has not, during the periods covered by
the financial statements included in the Prospectus and the Prospectus Supplement, provided to the Company any non-audit services, as
such term is used in Section 10A(g) of the Exchange Act.
(ee)
Office
of Foreign Assets Control. Neither the Company nor any Subsidiary nor, to the Company's knowledge, any director, officer, agent,
employee or affiliate of the Company or any Subsidiary is currently subject to any U.S. sanctions administered by the Office of Foreign
Assets Control of the U.S. Treasury Department.
______________
[1] NTD: The company does not and has not issued stock options in recent
years.
(ff)
U.S. Real Property Holding Corporation. The Company is not and has never been a U.S.
real property holding corporation within the meaning of Section 897 of the Internal Revenue Code of 1986, as amended, and the Company
shall so certify upon the Representative’s request.
(gg)
Bank Holding Company Act. Neither the Company nor any of its Subsidiaries or Affiliates
is subject to the Bank Holding Company Act of 1956, as amended (the “BHCA”) and to regulation by the Board of Governors
of the Federal Reserve System (the “Federal Reserve”). Neither the Company nor any of its Subsidiaries or Affiliates
owns or controls, directly or indirectly, five percent (5%) or more of the outstanding shares of any class of voting securities or twenty-five
percent (25%) or more of the total equity of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve.
Neither the Company nor any of its Subsidiaries or Affiliates exercises a controlling influence over the management or policies of a
bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve.
(hh)
Money Laundering. The operations of the Company and its Subsidiaries are and have
been conducted at all times in compliance with applicable financial record-keeping and reporting requirements of the Currency and Foreign
Transactions Reporting Act of 1970, as amended, applicable money laundering statutes and applicable rules and regulations thereunder
(collectively, the “Money Laundering Laws”), and no Action or Proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any Subsidiary with respect to the Money Laundering Laws is pending or,
to the knowledge of the Company or any Subsidiary, threatened.
(ii)
D&O Questionnaires. To the Company’s knowledge, all information contained in the questionnaires completed by
each of the Company’s directors and officers prior to the Offering is true and correct in all respects and the Company has not
become aware of any information which would cause the information disclosed in such questionnaires become inaccurate and incorrect.
(jj)
FINRA Affiliation. No officer, director or any beneficial owner of 5% or more of the Company’s unregistered securities
has any direct or indirect affiliation or association with any FINRA member (as determined in accordance with the rules and regulations
of FINRA) that is participating in the Offering. The Company will advise the Representative and EGS if it learns that any officer, director
or owner of 5% or more of the Company’s outstanding shares of Common Stock or Common Stock Equivalents is or becomes an affiliate
or associated person of a FINRA member firm.
(kk)
Officers’ Certificate. Any certificate signed by any duly authorized officer of the Company and delivered to the
Representative or EGS shall be deemed a representation and warranty by the Company to the Underwriters as to the matters covered thereby.
(ll)
Board of Directors. The Board of Directors is comprised of the persons set forth in the SEC Reports. The qualifications
of the persons serving as board members and the overall composition of the Board of Directors comply with the Sarbanes-Oxley Act of 2002
and the rules promulgated thereunder applicable to the Company and the rules of the Trading Market. At least one member of the Board
of Directors qualifies as a “financial expert” as such term is defined under the Sarbanes-Oxley Act of 2002 and the rules
promulgated thereunder and the rules of the Trading Market. In addition, at least a majority of the persons serving on the Board of Directors
qualify as “independent” as defined under the rules of the Trading Market.
(mm)
ERISA. The Company is not a party to an “employee benefit plan,” as defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”), which: (i) is subject to any provision of ERISA and
(ii) is or was at any time maintained, administered or contributed to by the Company or any of its ERISA Affiliates (as defined hereafter).
These plans are referred to collectively herein as the “Employee Plans.” An “ERISA Affiliate” of
any person or entity means any other person or entity which, together with that person or entity, could be treated as a single employer
under Section 414(b), (c), (m) or (o) of the Internal Revenue Code of 1986, as amended (the “Code”). Each Employee
Plan has been maintained in material compliance with its terms and the requirements of applicable law. No Employee Plan is subject to
Title IV of ERISA. The Registration Statement, Preliminary Prospectus, the Prospectus, and the Prospectus Supplement identify each employment,
severance or other similar agreement, arrangement or policy and each material plan or arrangement required to be disclosed pursuant to
the Rules and Regulations providing for insurance coverage (including any self-insured arrangements), workers’ compensation, disability
benefits, severance benefits, supplemental unemployment benefits, vacation benefits or retirement benefits, or deferred compensation,
profit-sharing, bonuses, stock options, stock appreciation rights or other forms of incentive compensation, or post-retirement insurance,
compensation or benefits, which: (i) is not an Employee Plan; (ii) is entered into, maintained or contributed to, as the case may be,
by the Company or any of its ERISA Affiliates; and (iii) covers any officer or director or former officer or director of the Company
or any of its ERISA Affiliates. These agreements, arrangements, policies or plans are referred to collectively as “Benefit Arrangements.”
Each Benefit Arrangement has been maintained in material compliance with its terms and with the requirements of applicable law. Except
as disclosed in the Registration Statement, Preliminary Prospectus, the Prospectus, and the Prospectus Supplement, there is no liability
in respect of post-retirement health and medical benefits for retired employees of the Company or any of its ERISA Affiliates, other
than medical benefits required to be continued under applicable law. No “prohibited transaction” (as defined in either Section
406 of ERISA or Section 4975 of the Code) has occurred with respect to any Employee Plan; and each Employee Plan that is intended to
be qualified under Section 401(a) of the Code is so qualified, and nothing has occurred, whether by action or by failure to act, which
could cause the loss of such qualification.
(nn)
Cybersecurity. There has been no security breach or other compromise of or relating to any of the Company’s
or any Subsidiary’s information technology and computer systems, networks, hardware, software, data (including the data of its
respective customers, employees, suppliers, vendors and any third party data maintained by or on behalf of it), equipment or technology
(collectively, “IT Systems and Data”) and (y) the Company and the Subsidiaries have not been notified of, and has
no knowledge of any event or condition that would reasonably be expected to result in, any security breach or other compromise to its
IT Systems and Data; (ii) the Company and the Subsidiaries are presently in compliance with all applicable laws or statutes and all judgments,
orders, rules and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations
relating to the privacy and security of IT Systems and Data and to the protection of such IT Systems and Data from unauthorized use,
access, misappropriation or modification, except as would not, individually or in the aggregate, have a Material Adverse Effect; (iii) the
Company and the Subsidiaries have implemented and maintained commercially reasonable safeguards to maintain and protect its material
confidential information and the integrity, continuous operation, redundancy and security of all IT Systems and Data; and (iv) the Company
and the Subsidiaries have implemented backup and disaster recovery technology consistent with industry standards and practices.
(oo)
Environmental Laws. The Company and its Subsidiaries (i) are in compliance with all federal, state, local and foreign
laws relating to pollution or protection of human health or the environment (including ambient air, surface water, groundwater, land
surface or subsurface strata), including laws relating to emissions, discharges, releases or threatened releases of chemicals, pollutants,
contaminants, or toxic or hazardous substances or wastes (collectively, “Hazardous Materials”) into the environment,
or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous
Materials, as well as all authorizations, codes, decrees, demands, or demand letters, injunctions, judgments, licenses, notices or notice
letters, orders, permits, plans or regulations, issued, entered, promulgated or approved thereunder (“Environmental Laws”);
(ii) have received all permits licenses or other approvals required of them under applicable Environmental Laws to conduct their respective
businesses; and (iii) are in compliance with all terms and conditions of any such permit, license or approval where in each clause (i),
(ii) and (iii), the failure to so comply could be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect.
ARTICLE
IV.
OTHER AGREEMENTS
OF THE PARTIES
4.1
Amendments to Registration Statement. The Company has delivered, or will as promptly as practicable deliver, to the Underwriters
complete conformed copies of the Registration Statement and of each consent and certificate of experts, as applicable, filed as a part
thereof, and conformed copies of the Registration Statement (without exhibits), the Prospectus, the Preliminary Prospectus and the Prospectus
Supplement, as amended or supplemented, in such quantities and at such places as an Underwriter reasonably requests. Neither the Company
nor any of its directors and officers has distributed and none of them will distribute, prior to the Closing Date, any offering material
in connection with the offering and sale of the Public Shares other than the Prospectus, the Preliminary Prospectus, the Prospectus Supplement,
the Registration Statement, and copies of the documents incorporated by reference therein. The Company shall not file any such amendment
or supplement to which the Representative shall reasonably object in writing.
4.2
Federal Securities Laws.
(a)
Compliance. During the time when a Prospectus Supplement is required to be delivered under the Securities Act, the Company
will use its best efforts to comply with all requirements imposed upon it by the Securities Act and the rules and regulations thereunder
and the Exchange Act and the rules and regulations thereunder, as from time to time in force, so far as necessary to permit the continuance
of sales of or dealings in the Public Shares in accordance with the provisions hereof and the Prospectus Supplement. If at any time when
a Prospectus Supplement relating to the Public Shares is required to be delivered under the Securities Act, any event shall have occurred
as a result of which, in the opinion of counsel for the Company or counsel for the Underwriters, the Prospectus, as then amended or supplemented,
includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary at any time to
amend the Prospectus Supplement to comply with the Securities Act, the Company will notify the Underwriters promptly and prepare and
file with the Commission, subject to Section 4.1 hereof, an appropriate amendment or supplement in accordance with Section 10 of the
Securities Act.
(b)
Filing of Final Prospectus Supplement. The Company will file the Prospectus Supplement (in form and substance satisfactory
to the Representative) with the Commission pursuant to the requirements of Rule 424.
(c)
Exchange Act Registration. For a period of three (3) years from the Execution Date, the Company will use its best efforts
to maintain the registration of the Common Stock under the Exchange Act. The Company will not deregister the Common Stock under the Exchange
Act without the prior written consent of the Representative.
(d)
Free Writing Prospectuses. The Company represents and agrees that it has not made and will not make any offer relating
to the Public Shares that would constitute an issuer free writing prospectus, as defined in Rule 433 of the rules and regulations under
the Securities Act, without the prior written consent of the Representative. Any such free writing prospectus consented to by the Representative
is herein referred to as a “Permitted Free Writing Prospectus.” The Company represents that it will treat each
Permitted Free Writing Prospectus as an “issuer free writing prospectus” as defined in rule and regulations under the Securities
Act, and has complied and will comply with the applicable requirements of Rule 433 of the Securities Act, including timely Commission
filing where required, legending and record keeping.
4.3
Delivery to the Underwriters of Prospectuses. The Company will deliver to the Underwriters, without charge, from time to
time during the period when the Prospectus Supplement is required to be delivered under the Securities Act or the Exchange Act such number
of copies of each Prospectus Supplement as the Underwriters may reasonably request and, as soon as the Registration Statement or any
amendment or supplement thereto becomes effective, deliver to the Representative two original executed Registration Statements, including
exhibits, and all post-effective amendments thereto and copies of all exhibits filed therewith or incorporated therein by reference and
all original executed consents of certified experts.
4.4
Effectiveness and Events Requiring Notice to the Underwriters. The Company will use its best efforts to cause the Registration
Statement to remain effective with a current prospectus until nine (9) months from the Execution Date, and will notify the Underwriters
immediately and confirm the notice in writing: (i) of the effectiveness of the Registration Statement and any amendment thereto;
(ii) of the issuance by the Commission of any stop order or of the initiation, or the threatening, of any proceeding for that purpose;
(iii) of the issuance by any state securities commission of any proceedings for the suspension of the qualification of the Public
Shares 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 Prospectus Supplement;
(v) of the receipt of any comments or request for any additional information from the Commission; and (vi) of the happening
of any event during the period described in this Section 4.4 that, in the judgment of the Company, makes any statement of a material
fact made in the Registration Statement , the Prospectus, or the Prospectus Supplement untrue or that requires the making of any changes
in the Registration Statement, the Prospectus, or the Prospectus Supplement in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. If the Commission or any state securities commission shall enter a stop order
or suspend such qualification at any time, the Company will make every reasonable effort to obtain promptly the lifting of such order.
4.5
Review of Financial Statements. For a period of five (5) years from the Execution Date, the Company, at its expense, shall
cause its regularly engaged independent registered public accountants to review (but not audit) the Company’s financial statements
for each of the first three fiscal quarters prior to the announcement of quarterly financial information.
4.6
Reports to the Underwriters; Expenses of the Offering.
(a)
Periodic Reports, etc. For a period of three (3) years from the Execution Date, the Company will furnish or make available
to the Underwriters copies of such financial statements and other periodic and special reports as the Company from time to time furnishes
generally to holders of any class of its securities and also promptly furnish or make available to the Underwriters: (i) a copy of each
periodic report the Company shall be required to file with the Commission; (ii) a copy of every press release which was released by the
Company; (iii) a copy of each Form 8-K prepared and filed by the Company; (iv) a copy of each registration statement filed by the Company
under the Securities Act; (v) such additional documents and information with respect to the Company and the affairs of any future Subsidiaries
of the Company as the Representative may from time to time reasonably request; provided that the Underwriters shall each sign, if requested
by the Company, a Regulation FD compliant confidentiality agreement which is reasonably acceptable to the Representative in connection
with such Underwriter’s receipt of such information. Documents filed with the Commission pursuant to its EDGAR system shall be
deemed to have been delivered to the Underwriters pursuant to this Section.
(b)
General Expenses Related to the Offering. The Company hereby agrees to pay on each of the Closing Date and each Option
Closing Date, if any, to the extent not paid at the Closing Date, all expenses incident to the performance of the obligations of the
Company under this Agreement, including, but not limited to: (a) all filing fees and communication expenses relating to the registration
of the Public Shares to be sold in the Offering with the Commission (including the Option Shares); (b) all FINRA Public Offering Filing
System fees associated with the review of the Offering by FINRA; all fees and expenses relating to the listing of such Closing Shares
and Option Shares on the Trading Market and such other stock exchanges as the Company and the Representative together determine; (c)
all fees, expenses and disbursements relating to the registration or qualification of such Public Shares under any foreign jurisdictions
as the Representative may reasonably designate (including, without limitation, all filing and registration fees, and the fees and expenses
of Blue Sky counsel); (d) the costs of all mailing and printing of the underwriting documents (including, without limitation, the Underwriting
Agreement, any Blue Sky Surveys and, if appropriate, any Agreement Among Underwriters, Selected Dealers’ Agreement, Underwriters’
Questionnaire and Power of Attorney), Registration Statements, Prospectuses and all amendments, supplements and exhibits thereto and
as many preliminary and final Prospectuses and Prospectus Supplements as the Representative may reasonably deem necessary; (e) the costs
and expenses of the Company’s public relations firm; (f) the costs of preparing, printing and delivering the Public Shares; (g)
fees and expenses of the Transfer Agent for the Public Shares (including, without limitation, any fees required for same-day processing
of any instruction letter delivered by the Company); (h) stock transfer and/or stamp taxes, if any, payable upon the transfer of securities
from the Company to the Underwriters; (i) the fees and expenses of the Company’s accountants; (j) the fees and expenses of the
Company’s legal counsel and other agents and representatives; (k) the Underwriters’ costs of mailing prospectuses to prospective
investors; and (l) up to $75,000 for the fees and expenses of EGS. For avoidance of doubt, the maximum amount of legal fees, costs and
expenses incurred by the Representative that the Company shall be responsible for shall not exceed $75,000. The Underwriters shall also
deduct from the net proceeds of the Offering payable to the Company on the Closing Date, or each Option Closing Date, if any, the expenses
set forth herein to be paid by the Company to the Underwriters.
(c)
Upon a Closing of the Offering, then, if within twelve (12) months following the date of this Agreement, the Company completes
any financing of equity, equity-linked, convertible or debt or other capital raising activity (collectively, a “Subsequent Placement”)
with, or receives any proceeds from, any of the investors previously unknown to the Company and contacted or introduced by Maxim during
the term of this Agreement, then the Company will pay the Representative upon the closing of such Subsequent Placement or receipt of
such proceeds from such investor(s) a cash fee equal to 8.0% of the gross proceeds of the Subsequent Placement.
4.7
Application of Net Proceeds. The Company will apply the net proceeds from the Offering received by it in a manner consistent
with the application described under the caption “Use of Proceeds” in the Prospectus and the Prospectus Supplement.
4.8
Delivery of Earnings Statements to Security Holders. The Company will make generally available to its security holders
as soon as practicable, but not later than the first day of the fifteenth full calendar month following the Execution Date, an earnings
statement (which need not be certified by independent public or independent certified public accountants unless required by the Securities
Act or the Rules and Regulations under the Securities Act, but which shall satisfy the provisions of Rule 158(a) under Section 11(a)
of the Securities Act) covering a period of at least twelve consecutive months beginning after the Execution Date.
4.9
Stabilization. Neither the Company, nor, to its knowledge, any of its employees, directors or shareholders (without the
consent of the Representative) has taken or will take, directly or indirectly, any action designed to or that has constituted or that
might reasonably be expected to cause or result in, under the Exchange Act, or otherwise, stabilization or manipulation of the price
of any security of the Company to facilitate the sale or resale of the Public Shares.
4.10
Internal Controls. Except as disclosed in the SEC Reports filed by the Company prior to the date hereof, the Company will
maintain a system of internal accounting controls sufficient to provide reasonable assurances that: (i) transactions are executed
in accordance with management’s general or specific authorization; (ii) transactions are recorded as necessary in order to
permit preparation of financial statements in accordance with GAAP and to maintain accountability for assets; (iii) access to assets
is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability
for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
4.11
Accountants. The Company shall continue to retain a nationally recognized independent certified public accounting firm
for a period of at least three years after the Execution Date. The Underwriters acknowledge that the Company Auditor is acceptable to
the Underwriters.
4.12
FINRA. The Company shall advise the Underwriters (who shall make an appropriate filing with FINRA) if it is aware that
any 5% or greater shareholder of the Company becomes an affiliate or associated person of an Underwriter.
4.13
No Fiduciary Duties. The Company acknowledges and agrees that the Underwriters’ responsibility to the Company is
solely contractual and commercial in nature, based on arms-length negotiations and that neither the Underwriters nor their affiliates
or any selected dealer shall be deemed to be acting in a fiduciary capacity, or otherwise owes any fiduciary duty to the Company or any
of its affiliates in connection with the Offering and the other transactions contemplated by this Agreement. Notwithstanding anything
in this Agreement to the contrary, the Company acknowledges that the Underwriters may have financial interests in the success of the
Offering that are not limited to the difference between the price to the public and the purchase price paid to the Company by the Underwriters
for the shares and the Underwriters have no obligation to disclose, or account to the Company for, any of such additional financial interests.
The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Underwriters
with respect to any breach or alleged breach of fiduciary duty.
4.14
Board Composition and Board Designations. The Company shall ensure that: (i) the qualifications of the persons serving
as board members and the overall composition of the Board of Directors comply with the Sarbanes-Oxley Act of 2002 and the rules promulgated
thereunder and with the listing requirements of the Trading Market and (ii) if applicable, at least one member of the Board of Directors
qualifies as a “financial expert” as such term is defined under the Sarbanes-Oxley Act of 2002 and the rules promulgated
thereunder.
4.15
Securities Laws Disclosure; Publicity. At the request of the Representative, by 9:00 a.m. (New York City time) on the date
hereof, the Company shall issue a press release disclosing the material terms of the Offering. The Company and the Representative shall
consult with each other in issuing any other press releases with respect to the Offering, and neither the Company nor any Underwriter
shall issue any such press release nor otherwise make any such public statement without the prior consent of the Company, with respect
to any press release of such Underwriter, or without the prior consent of such Underwriter, with respect to any press release of the
Company, which consent shall not unreasonably be withheld or delayed, except if such disclosure is required by law, in which case the
disclosing party shall promptly provide the other party with prior notice of such public statement or communication. The Company will
not issue press releases or engage in any other publicity, without the Representative’s prior written consent, for a period ending
at 5:00 p.m. (New York City time) on the first business day following the 45th day following the Closing Date, other than normal and
customary releases issued in the ordinary course of the Company’s business.
4.16
Shareholder Rights Plan. No claim will be made or enforced by the Company or, with the consent of the Company, any other
Person, that any Underwriter of the Closing Shares is an “Acquiring Person” under any control share acquisition, business
combination, poison pill (including any distribution under a rights agreement) or similar anti-takeover plan or arrangement in effect
or hereafter adopted by the Company, or that any Underwriter of Closing Shares could be deemed to trigger the provisions of any such
plan or arrangement, by virtue of receiving Closing Shares.
4.17
Reservation of Common Stock. As of the date hereof, the Company has reserved and the Company shall continue to reserve
and keep available at all times, free of preemptive rights, a sufficient number of shares of Common Stock for the purpose of enabling
the Company to issue Option Shares pursuant to the Over-Allotment Option.
4.18
Listing of Common Stock. The Company hereby agrees to use best efforts to maintain the listing or quotation of the Common
Stock on the Trading Market on which it is currently listed, and concurrently with the Closing, the Company shall apply to list or quote
all of the Closing Shares and Option Shares on such Trading Market and promptly secure the listing of all of the Closing Shares and Option
Shares on such Trading Market. The Company further agrees, if the Company applies to have the Common Stock traded on any other Trading
Market, it will then include in such application all of the Closing Shares and Option Shares, and will take such other action as is necessary
to cause all of the Closing Shares and Option Shares to be listed or quoted on such other Trading Market as promptly as possible. The
Company will then take all action reasonably necessary to continue the listing and trading of its Common Stock on a Trading Market and
will comply in all respects with the Company’s reporting, filing and other obligations under the bylaws or rules of the Trading
Market. The Company agrees to maintain the eligibility of the Common Stock for electronic transfer through the Depository Trust Company
or another established clearing corporation, including, without limitation, by timely payment of fees to the Depository Trust Company
or such other established clearing corporation in connection with such electronic transfer.
4.19
Intentionally omitted.
4.20
Research Independence. The Company acknowledges that each Underwriter’s research analysts and research departments,
if any, are required to be independent from their respective investment banking divisions and are subject to certain regulations and
internal policies, and that such Underwriter’s research analysts may hold and make statements or investment recommendations and/or
publish research reports with respect to the Company and/or the offering that differ from the views of its investment bankers. The Company
hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against such Underwriter with
respect to any conflict of interest that may arise from the fact that the views expressed by their independent research analysts and
research departments may be different from or inconsistent with the views or advice communicated to the Company by such Underwriter’s
investment banking divisions. The Company acknowledges that the Representative is a full service securities firm and as such from time
to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold
long or short position in debt or equity securities of the Company.
4.21
Right of First Refusal. Upon the Closing of the Offering, for a period of twelve (12) months from such Closing the Company
grants the Representative the right of first refusal to act as co-lead managing underwriter and co-book runner, placement agent with
at least 50% of the economics, or sales agent with at least 50% of the economics, for any and all future public or private equity, equity-linked
or debt (excluding commercial bank debt) offerings for which the Company retains the service of an underwriter, agent, advisor, finder
or other person or entity in connection with such offering during such twelve (12) month period of the Company, or any successor to or
any subsidiary of the Company. The Company shall not offer to retain any entity or person in connection with any such offering on terms
more favorable than terms on which it offers to retain the Representative. Such offer shall be made in writing in order to be effective.
The Representative shall notify the Company within ten (10) business days of its receipt of the written offer contemplated above as to
whether or not it agrees to accept such retention. If the Representative should decline such retention, the Company shall have no further
obligations to the Representative with respect to the offering for which it has offered to retain the Representative, except as otherwise
provided for herein. The parties agree that this Section 4.21 shall not be applicable to any issuance of securities or financing provided
by or solicited from any person or entity who is, or has been within such twelve (12) months period, a holder of the Company’s
debt or equity securities.
ARTICLE
V.
DEFAULT
BY UNDERWRITERS
If
on the Closing Date or any Option Closing Date, if any, any Underwriter shall fail to purchase and pay for the portion of the Closing
Shares or Option Shares, as the case may be, which such Underwriter has agreed to purchase and pay for on such date (otherwise than by
reason of any default on the part of the Company), the Representative, or if the Representative is the defaulting Underwriter, the non-defaulting
Underwriters, shall use their reasonable efforts to procure within thirty-six (36) hours thereafter one or more of the other Underwriters,
or any others, to purchase from the Company such amounts as may be agreed upon and upon the terms set forth herein, the Closing Shares
or Option Shares , as the case may be, which the defaulting Underwriter or Underwriters failed to purchase. If during such 36 hours the
Representative shall not have procured such other Underwriters, or any others, to purchase the Closing Shares or Option Shares, as the
case may be, agreed to be purchased by the defaulting Underwriter or Underwriters, then (a) if the aggregate number of Closing Shares
or Option Shares, as the case may be, with respect to which such default shall occur does not exceed 10% of the Closing Shares or Option
Shares, as the case may be, covered hereby, the other Underwriters shall be obligated, severally, in proportion to the respective numbers
of Closing Shares or Option Shares, as the case may be, which they are obligated to purchase hereunder, to purchase the Closing Shares
or Option Shares, as the case may be, which such defaulting Underwriter or Underwriters failed to purchase, or (b) if the aggregate number
of Closing Shares or Option Shares, as the case may be, with respect to which such default shall occur exceeds 10% of the Closing Shares
or Option Shares, as the case may be, covered hereby, the Company or the Representative will have the right to terminate this Agreement
without liability on the part of the non-defaulting Underwriters or of the Company except to the extent provided in Article VI hereof.
In the event of a default by any Underwriter or Underwriters, as set forth in this Article V, the applicable Closing Date may be postponed
for such period, not exceeding seven (7) days, as the Representative, or if the Representative is the defaulting Underwriter, the non-defaulting
Underwriters, may determine in order that the required changes in the Prospectus Supplement or in any other documents or arrangements
may be effected. The term “Underwriter” includes any Person substituted for a defaulting Underwriter. Any action taken under
this Section shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.
ARTICLE
VI.
INDEMNIFICATION
6.1
Indemnification of the Underwriters. Subject to the conditions set forth below, the Company agrees to indemnify and hold
harmless the Underwriters, and each dealer selected by each Underwriter that participates in the offer and sale of the Public Shares
(each a “Selected Dealer”) and each of their respective directors, officers and employees and each Person, if any,
who controls such Underwriter or any Selected Dealer (“Controlling Person”) within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, against any and all loss, liability, claim, damage and expense whatsoever (including
but not limited to any and all legal or other expenses reasonably incurred in investigating, preparing or defending against any litigation,
commenced or threatened, or any claim whatsoever, whether arising out of any action between such Underwriter and the Company or between
such Underwriter and any third party or otherwise) to which they or any of them may become subject under the Securities Act, the Exchange
Act or any other statute or at common law or otherwise or under the laws of foreign countries, arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in (i) any Preliminary Prospectus, if any, the Registration Statement,
the Prospectus (as from time to time each may be amended and supplemented), or the Prospectus Supplement; (ii) any materials or information
provided to investors by, or with the approval of, the Company in connection with the marketing of the offering of the Public Shares,
including any “road show” or investor presentations made to investors by the Company (whether in person or electronically);
or (iii) any application or other document or written communication (in this Article VI, collectively called “application”)
executed by the Company or based upon written information furnished by the Company in any jurisdiction in order to qualify the Public
Shares under the securities laws thereof or filed with the Commission, any state securities commission or agency, Trading Market or any
securities exchange; or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were made, not misleading, unless such statement or omission was
made in reliance upon and in conformity with written information furnished to the Company with respect to the applicable Underwriter
by or on behalf of such Underwriter expressly for use in any Preliminary Prospectus, if any, the Registration Statement or Prospectus
Supplement, or any amendment or supplement thereto, or in any application, as the case may be. With respect to any untrue statement or
omission or alleged untrue statement or omission made in the Preliminary Prospectus, if any, the indemnity agreement contained in this
Section 6.1 shall not inure to the benefit of an Underwriter to the extent that any loss, liability, claim, damage or expense of such
Underwriter results from the fact that a copy of the Prospectus Supplement 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 Shares to such Person as required by the Securities
Act and the rules and regulations thereunder, and if the untrue statement or omission has been corrected in the Prospectus Supplement,
unless such failure to deliver the Prospectus Supplement was a result of non-compliance by the Company with its obligations under this
Agreement. The Company agrees promptly to notify each Underwriter of the commencement of any litigation or proceedings against the Company
or any of its officers, directors or Controlling Persons in connection with the issue and sale of the Public Shares or in connection
with the Registration Statement, the Prospectus, or the Prospectus Supplement.
6.2
Procedure. If any action is brought against an Underwriter, a Selected Dealer or a Controlling Person in respect of which
indemnity may be sought against the Company pursuant to Section 6.1, such Underwriter, such Selected Dealer or Controlling Person, as
the case may be, shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense
of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected
Dealer, as the case may be) and payment of actual expenses. Such Underwriter, such Selected Dealer or Controlling Person shall have the
right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such
Underwriter, such Selected Dealer or Controlling Person unless (i) the employment of such counsel at the expense of the Company shall
have been authorized in writing by the Company in connection with the defense of such action, or (ii) the Company shall not have employed
counsel to have charge of the defense of such action, or (iii) such indemnified party or parties shall have reasonably concluded that
there may be defenses available to it or them which are different from or additional to those available to the Company (in which case
the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which
events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such Underwriter (in addition to
local counsel), Selected Dealer and/or Controlling Person shall be borne by the Company. Notwithstanding anything to the contrary contained
herein, if any Underwriter, Selected Dealer or Controlling Person shall assume the defense of such action as provided above, the Company
shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld.
6.3
Indemnification of the Company. Each Underwriter severally and not jointly agrees to indemnify and hold harmless the Company,
its directors, officers and employees and agents who control the Company within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act against any and all loss, liability, claim, damage and expense described in the foregoing indemnity from the Company
to such Underwriter, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions
made in any Preliminary Prospectus, if any, the Registration Statement or Prospectus Supplement or any amendment or supplement thereto
or in any application, in reliance upon, and in strict conformity with, written information furnished to the Company with respect to
such Underwriter by or on behalf of such Underwriter expressly for use in such Preliminary Prospectus, if any, the Registration Statement
or Prospectus Supplement or any amendment or supplement thereto or in any such application. In case any action shall be brought against
the Company or any other Person so indemnified based on any Preliminary Prospectus, if any, the Registration Statement or Prospectus
Supplement or any amendment or supplement thereto or any application, and in respect of which indemnity may be sought against such Underwriter,
such Underwriter shall have the rights and duties given to the Company, and the Company and each other Person so indemnified shall have
the rights and duties given to such Underwriter by the provisions of this Article VI. Notwithstanding
the provisions of this Section 6.3, no Underwriter shall be required to indemnify the Company for any amount in excess of the underwriting
discounts and commissions applicable to the Public Shares purchased by such Underwriter.
The Underwriters' obligations in this Section 6.3 to indemnify the Company are several in proportion to their respective underwriting
obligations and not joint.
6.4
Contribution.
(a)
Contribution Rights. In order to provide for just and equitable contribution under the Securities Act in any case in which
(i) any Person entitled to indemnification under this Article VI makes a claim for indemnification pursuant hereto but it is judicially
determined (by the entry of a final judgment or decree by a court of competent jurisdiction and the expiration of time to appeal or the
denial of the last right of appeal) that such indemnification may not be enforced in such case notwithstanding the fact that this Article
VI provides for indemnification in such case, or (ii) contribution under the Securities Act, the Exchange Act or otherwise may be required
on the part of any such Person in circumstances for which indemnification is provided under this Article VI, then, and in each such case,
the Company and each Underwriter, severally and not jointly, shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by said indemnity agreement incurred by the Company and such Underwriter, as incurred, in such proportions
that such Underwriter is responsible for that portion represented by the percentage that the underwriting discount appearing on the cover
page of the Prospectus Supplement bears to the initial offering price appearing thereon and the Company is responsible for the balance;
provided, that, no Person guilty of a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall
be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. For purposes of this Section, each
director, officer and employee of such Underwriter or the Company, as applicable, and each Person, if any, who controls such Underwriter
or the Company, as applicable, within the meaning of Section 15 of the Securities Act shall have the same rights to contribution as such
Underwriter or the Company, as applicable. Notwithstanding the provisions of this Section 6.4,
no Underwriter shall be required to contribute any amount in excess of the underwriting discounts and commissions applicable to the Public
Shares purchased by such Underwriter. The Underwriters' obligations in this Section 6.4 to contribute
are several in proportion to their respective underwriting obligations and not joint.
(b)
Contribution Procedure. Within fifteen (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 6.4
are intended to supersede, to the extent permitted by law, any right to contribution under the Securities Act, the Exchange Act or otherwise
available.
ARTICLE
VII.
MISCELLANEOUS
7.1
Termination.
(a)
Termination Right. The Representative shall have the right to terminate this Agreement at any time prior to any Closing
Date, (i) if any domestic or international event or act or occurrence has materially disrupted, or in its opinion will in the immediate
future materially disrupt, general securities markets in the United States; or (ii) if trading on any Trading Market shall have
been suspended or materially limited, or minimum or maximum prices for trading shall have been fixed, or maximum ranges for prices for
securities shall have been required by FINRA or by order of the Commission or any other government authority having jurisdiction, or
(iii) if the United States shall have become involved in a new war or an increase in major hostilities, or (iv) if a banking
moratorium has been declared by a New York State or federal authority, or (v) if a moratorium on foreign exchange trading has been
declared which materially adversely impacts the United States securities markets, or (vi) if the Company shall have sustained a
material loss by fire, flood, accident, hurricane, earthquake, theft, sabotage or other calamity or malicious act which, whether or not
such loss shall have been insured, will, in the Representative’s opinion, make it inadvisable to proceed with the delivery of the
Public Shares, or (vii) if the Company is in material breach of any of its representations, warranties or covenants hereunder, or
(viii) if the Representative shall have become aware after the date hereof of such a material adverse change in the conditions or
prospects of the Company, or such adverse material change in general market conditions as in the Representative’s judgment would
make it impracticable to proceed with the offering, sale and/or delivery of the Public Shares or to enforce contracts made by the Underwriters
for the sale of the Public Shares.
(b)
Expenses. In the event this Agreement shall be terminated pursuant to Section 7.1(a), within the time specified herein
or any extensions thereof pursuant to the terms herein, the Company shall be obligated to pay to the Representative its actual and accountable
out of pocket expenses related to the transactions contemplated herein then due and payable, including the fees and disbursements of
EGS up to $35,000 (provided, however, that
such expense cap in no way limits or impairs the indemnification and contribution provisions of this Agreement).
(c)
Indemnification. Notwithstanding any contrary provision contained in this Agreement, any election hereunder or any termination
of this Agreement, and whether or not this Agreement is otherwise carried out, the provisions of Article VI shall not be in any way effected
by such election or termination or failure to carry out the terms of this Agreement or any part hereof.
7.2
Entire Agreement. The Transaction Documents, together with the exhibits and schedules thereto, the Prospectus and the Prospectus
Supplement, contain the entire understanding of the parties with respect to the subject matter hereof and thereof and supersede all prior
agreements and understandings, oral or written, with respect to such matters, which the parties acknowledge have been merged into such
documents, exhibits and schedules. Notwithstanding anything herein to the contrary, the Engagement Agreement, dated October 30, 2023
(“Engagement Agreement”), by and between the Company and the Representative, shall continue to be effective and the
terms therein shall continue to survive and be enforceable by the Representative in accordance with its terms, provided that, in the
event of a conflict between the terms of the Engagement Agreement and this Agreement, the terms of this Agreement shall prevail.
7.3
Notices. Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall
be in writing and shall be deemed given and effective on the earliest of: (a) the time of transmission, if such notice or communication
is delivered via e-mail attachment at the email address set forth on the signature pages attached hereto at or prior to 5:30 p.m. (New
York City time) on a Trading Day, (b) the next Trading Day after the time of transmission, if such notice or communication is delivered
via e-mail attachment at the e-mail address as set forth on the signature pages attached hereto on a day that is not a Trading Day or
later than 5:30 p.m. (New York City time) on any Trading Day, (c) the second (2nd) Trading Day following the date of mailing,
if sent by U.S. nationally recognized overnight courier service or (d) upon actual receipt by the party to whom such notice is required
to be given. The address for such notices and communications shall be as set forth on the signature pages attached hereto.
7.4
Amendments; Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written
instrument signed, in the case of an amendment, by the Company and the Representative. No waiver of any default with respect to any provision,
condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default
or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right
hereunder in any manner impair the exercise of any such right.
7.5
Headings. The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed
to limit or affect any of the provisions hereof.
7.6
Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors
and permitted assigns.
7.7
Governing Law. All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents
shall be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the
principles of conflicts of law thereof. Each party agrees that all legal proceedings concerning the interpretations, enforcement and
defense of the transactions contemplated by this Agreement and any other Transaction Documents (whether brought against a party hereto
or its respective affiliates, directors, officers, shareholders, partners, members, employees or agents) shall be commenced exclusively
in the state and federal courts sitting in the City of New York. Each party hereby irrevocably submits to the exclusive jurisdiction
of the state and federal courts sitting in the City of New York, Borough of Manhattan for the adjudication of any dispute hereunder or
in connection herewith or with any transaction contemplated hereby or discussed herein (including with respect to the enforcement of
any of the Transaction Documents), and hereby irrevocably waives, and agrees not to assert in any action, suit 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 Agreement and agrees that such service shall constitute good and
sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process
in any other manner permitted by law. If either party shall commence an action or proceeding to enforce any provisions of the Transaction
Documents, then, in addition to the obligations of the Company under Article VI, the prevailing party in such action, suit or proceeding
shall be reimbursed by the other party for its reasonable attorneys’ fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such action or proceeding.
7.8
Survival. The representations and warranties contained herein shall survive the Closing and the Option Closing, if any,
and the delivery of the Public Shares.
7.9
Execution. This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered
one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to each other party,
it being understood that the parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission
or by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party
executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature
page were an original thereof.
7.10
Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction
to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall
remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially
reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would
have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared
invalid, illegal, void or unenforceable.
7.11
Remedies. In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of
damages, the Underwriters and the Company will be entitled to specific performance under the Transaction Documents. The parties agree
that monetary damages may not be adequate compensation for any loss incurred by reason of any breach of obligations contained in the
Transaction Documents and hereby agree to waive and not to assert in any action for specific performance of any such obligation the defense
that a remedy at law would be adequate.
7.12
Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any
right required or granted herein shall not be a Business Day, then such action may be taken or such right may be exercised on the next
succeeding Business Day.
7.13
Construction. The parties agree that each of them and/or their respective counsel have reviewed and had an opportunity
to revise the Transaction Documents and, therefore, the normal rule of construction to the effect that any ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation of the Transaction Documents or any amendments thereto. In addition,
each and every reference to share prices and shares of Common Stock in any Transaction Document shall be subject to adjustment for reverse
and forward stock splits, stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the
date of this Agreement.
7.14
WAIVER OF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER
PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, THE PARTIES EACH KNOWINGLY AND INTENTIONALLY,
TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY AND EXPRESSLY WAIVE FOREVER ANY RIGHT
TO TRIAL BY JURY.
(Signature
Pages Follow)
If
the foregoing correctly sets forth the understanding between the Underwriters and the Company, please so indicate in the space provided
below for that purpose, whereupon this letter shall constitute a binding agreement among the Company and the several Underwriters in
accordance with its terms.
Very truly yours,
DOLPHIN
ENTERTAINMENT, INC.
By: /s/ Bill O’Dowd________
Name:William O’Dowd,
IV
Title:Chief Executive Officer
Address for Notice:
150 Alhambra Circle, Suite 1200
Coral Gables, Florida 33134
Attn; Bill O’Dowd, Chief Executive
Officer
Email: billodowd@dolphinentertainment.com
Copy to:
K&L Gates LLP
200 S. Biscayne Blvd., Suite 3900
Miami, FL 33131
Attn: Clayton Parker
Email: clayton.parker@klgates.com
Accepted on the date first above written.
MAXIM GROUP LLC
As the Representative of the several
Underwriters listed on Schedule I
By: /s/Clifford Teller___________________________
Name: Clifford A. Teller
Title: Co-President
Address for Notice:
300
Park Avenue, 16th Floor
New
York, NY 10022
Attention:
James Siegel, General Counsel
Email:
jsiegel@maximgrp.com
Copy
to:
Ellenoff Grossman & Schole LLP
1345 Avenue of the Americas
New York, NY 10105
Attention: Matthew Bernstein, Esq.
Email:
mbernstein@egsllp.com
SCHEDULE
I
Schedule
of Underwriters
Underwriters |
Closing
Shares |
Closing
Purchase Price |
Maxim
Group LLC |
1,400,000 |
$2,125,200.00 |
|
|
|
Total |
1,400,000 |
$2,125,200.00 |
Exhibit 5.1
![](https://www.sec.gov/Archives/edgar/data/1282224/000107997323001524/image_001.jpg)
October 31, 2023
Dolphin Entertainment, Inc.
150 Alhambra Circle, Suite 1200
Coral Gables, FL 33134
Ladies and Gentlemen:
We have acted as counsel to Dolphin
Entertainment, Inc., a Florida corporation (the “Company”) in connection with the issuance and sale of 1,400,000 shares
(the “Shares”) of its common stock, par value 0.015 per share (“Common Stock”), to be issued and
sold pursuant to the Underwriting Agreement, dated as of October 31, 2023, by and between the Company and Maxim Group, LLC (the “Underwriting
Agreement”). The Shares have been registered on a Registration Statement on Form S-3 (File No. 333-273431) (such registration
statement, as amended, including documents incorporated by reference therein, the “Registration Statement”), initially
filed by the Company with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933,
as amended (the “Securities Act”) on July 25, 2023 and declared effective on August 3, 2023. Capitalized terms used
herein and not otherwise defined shall have the meanings set forth in the Underwriting Agreement.
The Company has requested our
opinion as to the matters set forth below in connection with the Registration Statement and the issuance and sale of the Shares. For purposes
of rendering that opinion, we have examined: (i) the Registration Statement, including the exhibits filed therewith; (ii) the preliminary
prospectus supplement, dated October 30, 2023 and the final prospectus supplement, dated October 31, 2023, filed with the Commission pursuant
to Rule 424(b) under the Securities Act (including the documents incorporated or deemed incorporated by reference therein) (collectively,
the “Prospectus Supplement”); (iii) the Company’s Articles of Incorporation, as amended through the date hereof,
(iv) the Bylaws of the Company; (v) resolutions adopted by the Board of Directors of the Company (the “Board of Directors”)
that provide for the issuance of the Shares (the “Authorizing Resolutions”); (vi) the Company’s stock ledger;
and (vii) as to certain matters of fact that are material to our opinion, we have also relied on a certificate of an officer of the Company.
We have not reviewed any documents other than the documents listed in (i) through (vii) above.
For the purposes of this opinion
letter, we have assumed that: (i) each document submitted to us is accurate and complete; (ii) each such document that is an original
is authentic; (iii) each such document that is a copy conforms to an authentic original; and (iv) all signatures on each such document
are genuine. We have further assumed the legal capacity of natural persons. We have not verified any of the forgoing assumptions.
Our opinion set forth below is
limited to the Florida Business Corporation Act, including reported judicial decisions interpreting that law.
Based upon and subject to the
foregoing, it is our opinion that the Shares are duly authorized for issuance by the Company and, when issued and paid for pursuant to
the Underwriting Agreement and the Authorizing Resolutions, will be validly issued, fully paid and nonassessable.
The opinion set forth above is
subject to the following additional assumptions: (i) the effectiveness of the Registration Statement and any amendment thereto (including
any post-effective amendment) under the Securities Act shall not have been terminated, suspended or rescinded, and (ii) all Shares offered
pursuant to the Registration Statement will be issued and sold in compliance with all applicable federal and state securities laws, rules
and regulations and solely in the manner provided in the Registration Statement and the Prospectus Supplement, and there will not have
occurred any change in law or fact affecting the validity of the opinion rendered herein with respect thereto. We assume no obligation
to update or supplement our opinion to reflect any changes of law or fact that may occur.
We hereby consent to the filing
of this opinion as an exhibit to the Current Report on Form 8-K relating to the issuance of the Shares and to the reference to this firm
in the related prospectus under the caption “Legal Matters.” In giving our consent we do not admit that we are in the category
of persons whose consent is required by Section 7 of the Securities Act or the rules and regulations thereunder. In giving our consent
we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the
rules and regulations thereunder. This opinion is expressed as of the date hereof, and we disclaim any undertaking to advise of any subsequent
changes in the facts stated or assumed herein or any subsequent changes in law.
|
Yours truly, |
|
|
|
|
|
|
|
|
/s/ K&L Gates LLP |
|
|
K&L Gates LLP |
|
Exhibit 99.1
Dolphin Entertainment,
Inc. Announces Proposed Public Offering of Common Stock
MIAMI,
FL / ACCESSWIRE / October 30, 2023 / Dolphin Entertainment (“Dolphin Entertainment” or the “Company”)
(NASDAQ:DLPN), the leader in entertainment marketing, today announced that it has commenced an underwritten public offering of shares
of its common stock (the “Offering”), which it expects to price at or near the closing price of the common stock. The Company
also expects to grant to the underwriters of the offering a 45-day option to purchase up to an additional 15% of the shares of common
stock offered in the underwritten public offering on the same terms and conditions. All of the shares of common stock are being offered
by Dolphin Entertainment. The Offering is subject to market and other conditions, and there can be no assurance as to whether or when
the Offering may be completed, or as to the actual size or terms of the Offering.
Maxim
Group LLC is acting as the sole book-runner for the Offering.
The Offering is being
made pursuant to an effective shelf registration statement on Form S-3 (File No. 333-273431) previously filed with the U.S. Securities
and Exchange Commission (“SEC”), which was declared effective on August 3, 2023. The shares may be offered only by means
of the written prospectus supplement and the accompanying prospectus that form a part of the registration statement. A preliminary prospectus
supplement and the accompanying prospectus relating to and describing the terms of the anticipated Offering have been filed with the
SEC and are available on the SEC’s website at www.sec.gov. When available, copies of the preliminary prospectus supplement and
accompanying prospectus relating to the Offering may also be obtained by contacting Maxim Group LLC, at 300 Park Avenue, 16th Floor,
New York, NY 10022, Attention: Prospectus Department, or by telephone at (212) 895-3745 or by email at syndicate@maximgrp.com. Before
you invest, you should read the preliminary prospectus supplement and accompanying prospectus, together with the information incorporated
therein, for more complete information about Dolphin Entertainment and the proposed Offering. The final terms of the Offering will be
disclosed in a final prospectus supplement to be filed with the SEC.
This press release
does not constitute an offer to sell or the solicitation of an offer to buy these securities, nor shall there be any sale of these securities
in any state or other jurisdiction in which such offer, solicitation or sale would be unlawful prior to the registration or qualification
under the securities laws of any such state or other jurisdiction.
About Dolphin
Entertainment, Inc.
Dolphin Entertainment
is a leading independent entertainment marketing and production company. Through our subsidiaries 42West, The Door and Shore Fire Media,
we provide expert strategic marketing and publicity services to many of the top brands, both individual and corporate, in the film, television,
music, gaming and hospitality industries. All three PR firms have been ranked among the most recent Observer's "Power 50" PR
Firms in the United States. Viewpoint Creative, The Digital Dept. complement their efforts with full-service creative branding and production
capabilities as well as social media and influencer marketing services. Dolphin's legacy content production business, founded by Emmy-nominated
CEO Bill O'Dowd, has produced multiple feature films and award-winning digital series, and has recently entered into a multi-year agreement
with IMAX to co-produce feature documentaries.
Forward Looking Statements:
Certain statements
made herein are "forward-looking statements" within the meaning of the "safe harbor" provisions of the Private Securities
Litigation Reform Act of 1995. Forward-looking statements may be identified by the use of words and phrases such as "opportunity,"
"future," "will," "goal," "enable," "pipeline," "transition," "move
forward," "towards," "build out," "coming" and "look forward" and other similar expressions
that predict or indicate future events or trends or that are not statements of historical matters. These forward-looking statements are
not guarantees of future performance, conditions, or results, and involve a number of known and unknown risks, uncertainties, assumptions,
and other important factors, many of which are outside the Company's control, which could cause actual results or outcomes to differ
materially from those discussed in the forward-looking statements. Important factors that may affect actual results or outcomes include,
among others, the Company's ability to manage growth; the Company's ability to execute its business plan and meet its projections, including
obtaining financing to construct planned facilities; potential litigation involving the Company; changes in applicable laws or regulations;
general economic and market conditions impacting demand for the Company's products and services, and in particular economic and market
conditions in the resort and entertainment industry; the effects of the ongoing global coronavirus (COVID-19) pandemic on capital markets,
general economic conditions, unemployment and the Company's liquidity, operations and personnel; increased inflation; the inability to
maintain the listing of the Company's shares on Nasdaq; the Company’s ability to consummate the Offering; the anticipated use of
proceeds from the Offering; and those risks and uncertainties discussed from time to time in our reports and other public filings with
the SEC. The Company does not undertake any obligation to update or revise any forward-looking statements, whether as a result of new
information, future events or otherwise, except as required by law.
Contact:
James Carbonara/Hayden IR
(646)-755-7412
james@haydenir.com
SOURCE: Dolphin Entertainment
Exhibit 99.2
Dolphin
Entertainment, Inc. Announces Pricing of $2.3 Million Public Offering of Common Stock
MIAMI,
FL / ACCESSWIRE / October 31, 2023 / Dolphin Entertainment (“Dolphin Entertainment” or the “Company”)
(NASDAQ:DLPN), a leader in entertainment marketing, today announced the pricing of its previously announced underwritten public
offering of 1,400,000 shares of its common stock (the “Offering”) at a public Offering price of $1.65 per share. In addition,
Dolphin Entertainment has granted the underwriters a 45-day option to purchase up to an additional 210,000 shares of common stock.
Maxim Group LLC is acting as sole book-running manager
for the Offering.
The gross proceeds of the Offering are expected to
be approximately $2.3 million before deducting underwriting discounts and commissions and estimated Offering expenses. This Offering is
expected to close on or about November 2, 2023, subject to customary closing conditions.
The Offering is being made pursuant to an effective
shelf registration statement on Form S-3 (File No. 333-273431) previously filed with the U.S. Securities and Exchange Commission (“SEC”),
and which was declared effective on August 3, 2023. The shares may be offered only by means of the written prospectus supplement and the
accompanying prospectus that form a part of the registration statement. A preliminary prospectus supplement and the accompanying prospectus
relating to and describing the terms of the Offering have been filed with the SEC and are available on the SEC’s website at www.sec.gov.
Copies of the preliminary prospectus supplement and accompanying prospectus relating to the public Offering may also be obtained by contacting
Maxim Group LLC, at 300 Park Avenue, 16th Floor, New York, NY 10022, Attention: Prospectus Department, or by telephone at (212) 895-3745
or by email at syndicate@maximgrp.com. Before you invest, you should read the preliminary prospectus supplement and accompanying prospectus,
together with the information incorporated therein, for more complete information about Dolphin Entertainment and the proposed Offering.
The final terms of the Offering will be disclosed in a final prospectus supplement to be filed with the SEC.
This press release shall not constitute an offer to
sell or a solicitation of an offer to buy, 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 Dolphin Entertainment, Inc.
Dolphin Entertainment is a leading independent entertainment
marketing and production company. Through our subsidiaries 42West, The Door and Shore Fire Media, we provide expert strategic marketing
and publicity services to many of the top brands, both individual and corporate, in the film, television, music, gaming and hospitality
industries. All three PR firms have been ranked among the most recent Observer's "Power 50" PR Firms in the United States. Viewpoint
Creative, The Digital Dept. complement their efforts with full-service creative branding and production capabilities as well as social
media and influencer marketing services. Dolphin's legacy content production business, founded by Emmy-nominated CEO Bill O'Dowd, has
produced multiple feature films and award-winning digital series, and has recently entered into a multi-year agreement with IMAX to co-produce
feature documentaries.
Forward Looking Statements:
Certain statements made herein are "forward-looking
statements" within the meaning of the "safe harbor" provisions of the Private Securities Litigation Reform Act of 1995.
Forward-looking statements may be identified by the use of words and phrases such as "opportunity," "future," "will,"
"goal," "enable," "pipeline," "transition," "move forward," "towards," "build
out," "coming" and "look forward" and other similar expressions that predict or indicate future events or trends
or that are not statements of historical matters. These forward-looking statements are not guarantees of future performance, conditions,
or results, and involve a number of known and unknown risks, uncertainties, assumptions, and other important factors, many of which are
outside the Company's control, which could cause actual results or outcomes to differ materially from those discussed in the forward-looking
statements. Important factors that may affect actual results or outcomes include, among others, the Company's ability to manage growth;
the Company's ability to execute its business plan and meet its projections, including obtaining financing to construct planned facilities;
potential litigation involving the Company; changes in applicable laws or regulations; general economic and market conditions impacting
demand for the Company's products and services, and in particular economic and market conditions in the resort and entertainment industry;
the effects of the ongoing global coronavirus (COVID-19) pandemic on capital markets, general economic conditions, unemployment and the
Company's liquidity, operations and personnel; increased inflation; the inability to maintain the listing of the Company's shares on Nasdaq;
the Company’s ability to consummate the Offering; the anticipated use of proceeds from the Offering; and those risks and uncertainties
discussed from time to time in our reports and other public filings with the SEC. The Company does not undertake any obligation to update
or revise any forward-looking statements, whether as a result of new information, future events or otherwise, except as required by law.
Contact:
James Carbonara/Hayden IR
(646)-755-7412
james@haydenir.com
SOURCE: Dolphin Entertainment
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