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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
July 25, 2024
Date of Report (Date of earliest event reported)
Cheetah Net Supply Chain Service Inc.
(Exact Name of Registrant as Specified in its Charter)
North Carolina | |
001-41761 | |
81-3509120 |
(State or other jurisdiction of incorporation) | |
(Commission File Number) | |
(I.R.S. Employer Identification No.) |
6201 Fairview Road, Suite 225
Charlotte, North Carolina |
|
28210 |
(Address of Principal Executive Offices) |
|
(Zip Code) |
(704) 826-7280
Registrant’s telephone number, including
area code
N/A
(Former name or former address, if changed since
last report)
Check the appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
¨ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act
(17 CFR 240.14a-12) |
¨ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b)) |
¨ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b)
of the Act:
Title of each class |
|
Trading Symbol(s) |
|
Name of each exchange on which
registered |
Class A Common Stock |
|
CTNT |
|
The Nasdaq Stock Market LLC |
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the
Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company x
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 July 25, 2024, Cheetah Net Supply Chain Service
Inc., a North Carolina corporation (the “Company”), entered into a securities purchase agreement (the “Purchase Agreement”)
with certain institutional investors (the “Investors”) for a follow-on offering (the “Offering”) of 6,479,663
shares of its Class A common stock, par value $0.0001 per share, at a price of $0.23 per share.
Pursuant to the Purchase Agreement, the Investors
have the right of participation (on a pro-rata basis) in certain equity linked financings undertaken by the Company up to 30% of the amount
of such financings for four months following the closing of the Offering. Further, until 90 days after the closing of the Offering, the
Company shall not issue certain securities (or enter into any agreement with respect thereto), subject to certain customary exceptions.
The Company’s securities described above
were offered pursuant to an effective registration statement on Form S-1 (SEC File No. 333-280743), that was previously filed
with the Securities and Exchange Commission (the “SEC”) on July 10, 2024, and declared effective on July 15, 2024 (the “Registration
Statement”). The Company filed the final prospectus, dated July 26, 2024 for the Offering, forming a part of the Registration Statement.
The Registration Statement and the final prospectus relating to this offering are available on the SEC’s website at www.sec.gov.
The Company also entered into Placement Agency
Agreement dated July 25, 2024 (the “Placement Agency Agreement”) with FT Global Capital, Inc., who acted as the exclusive
placement agent on a best efforts basis in connection with this Offering (the “Placement Agent”). Pursuant to the Placement
Agency Agreement, the Company agreed to pay the Placement Agent a cash fee of 7.25% of the aggregate purchase price for the shares of
Class A common stock sold in the Offering, and to reimburse the Placement Agent for its expenses up to $90,000 in the aggregate.
Pursuant to the Purchase Agreement and the Placement
Agency Agreement, each of the Company’s directors, officers, and beneficial owners of 5% or more of the Company’s securities,
have entered into lock-up agreements that generally prohibit the sale, transfer, or other disposition of the Company’s securities,
without the prior written consent of the Placement Agent, for a period of 90 days following the date of the final prospectus.
The Offering closed on July 26, 2024.
The Company intends to use the net proceeds received
from the offering for working capital and general corporate purposes.
A copy of the Placement Agency Agreement and the
form of the Purchase Agreement are attached hereto as Exhibits 10.1 and 10.2, respectively, and are incorporated by reference herein.
The foregoing summaries of the terms of the Placement Agency Agreement and the Purchase Agreement do not purport to be a complete description
of each of the documents described in this report and are qualified in their entirety by such documents.
Item 7.01 Regulation FD Disclosure.
On July 25, 2024,
the Company issued a press release regarding the pricing of the Offering. A copy of the press release is attached as Exhibit 99.1
hereto.
On July 26, 2024,
the Company issued a press release regarding the closing of the Offering. A copy of the press release is attached as Exhibit 99.2
hereto.
The information in this
Item 7.01, including Exhibit 99.1 and Exhibit 99.2 attached hereto, is being furnished and shall not be deemed “filed”
for the purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), nor shall it
be deemed incorporated by reference in any of the Company’s filings under the Securities Act, or the Exchange Act, whether made
before or after the date hereof, except as shall be expressly set forth by specific reference to this report in such filing.
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Date: July 26, 2024
|
Cheetah Net Supply Chain Service Inc. |
|
|
|
|
By: |
/s/ Huan Liu |
|
|
Huan Liu |
|
|
Chief Executive Officer, Director, and Chairman of the Board of Directors |
Exhibit 10.1
PLACEMENT AGENCY AGREEMENT
FT Global Capital, Inc.
1688 Meridian Avenue, Suite
700
Miami Beach, FL 33139
July 25, 2024
Ladies and Gentlemen:
This letter (this “Agreement”)
constitutes the agreement between Cheetah Net Supply Chain Service Inc. (the “Company”) and FT Global Capital, Inc.
(“FT Global” or the “Placement Agent”) pursuant to which FT Global shall serve as the placement
agent for the Company, on a reasonable “best efforts” basis, in connection with the proposed offer and sale (the “Offering”)
by the Company of its Securities (as defined Section 3 of this Agreement) (the “Services”). The Company expressly acknowledges
and agrees that FT Global’s obligations hereunder are on a reasonable “best efforts” basis only and that the execution
of this Agreement does not constitute a commitment by FT Global to purchase the Securities and does not ensure the successful placement
of the Securities or any portion thereof or the success of FT Global with respect to securing any other financing on behalf of the Company.
1. Appointment
of FT Global as Exclusive Placement Agent.
On the basis of the representations,
warranties, covenants and agreements of the Company herein contained, and subject to all the terms and conditions of this Agreement, the
Company hereby appoints the Placement Agent as its exclusive placement agent in connection with a distribution of its Shares (as defined
below) to be offered and sold by the Company pursuant to a registration statement filed under the Securities Act of 1933, as amended (the
“Securities Act”) on Form S-1 (File No. 333-280743), and the Placement Agent agrees to act as the Company’s exclusive
placement agent. Pursuant to this appointment, the Placement Agent will solicit offers for the purchase of or attempt to place all or
part of the Securities of the Company in the proposed Offering. Until the final closing or upon termination of this Agreement pursuant
to Section 5 hereof, the Company shall not, without the prior written consent of the Placement Agent, solicit or accept offers to purchase
the Securities other than through the Placement Agent. The Placement Agent will use its reasonable “best efforts” to solicit
offers to purchase the Securities from the Company on the terms, and subject to the conditions, set forth in the Prospectus (as defined
below). The Placement Agent shall use commercially reasonable efforts to assist the Company in obtaining performance by each Purchaser
(as defined below) whose offer to purchase Securities has been solicited by the Placement Agent, but the Placement Agent shall not, except
as otherwise provided in this Agreement, be obligated to disclose the identity of any potential purchaser or have any liability to the
Company in the event any such purchase is not consummated for any reason. The Company acknowledges that under no circumstances will the
Placement Agent be obligated to underwrite or purchase any Securities for its own account and, in soliciting purchases of the Securities,
the Placement Agent shall act solely as an agent of the Company. The Services provided pursuant to this Agreement shall be on an “agency”
basis and not on a “principal” basis. Following the prior written consent of the Company, the Placement Agent may retain other
brokers or dealers to act as sub-agents or selected-dealers on its behalf in connection with the Offering.
The Placement Agent will solicit
offers for the purchase of the Securities in the Offering at such times and in such amounts as the Placement Agent deems advisable. The
Company shall have the sole right to accept offers to purchase Securities and may reject any such offer, in whole or in part. The Company
and Placement Agent shall negotiate the timing and terms of the Offering and acknowledge that the Offering and the provision of the Services
related to the Offering are subject to market conditions and the receipt of all required related clearances and approvals.
2. Fees;
Expenses; Other Arrangements.
A. Placement
Agent’s Fee. As compensation for services rendered, the Company shall pay to the Placement Agent in cash by wire transfer in
immediately available funds to an account or accounts designated by the Placement Agent an amount (the “Placement Fee”)
equal to a percentage of the aggregate gross proceeds received by the Company from the sale of the Securities, at the closing of the Offering
(the “Closing” and the date on which the Closing occurs, the “Closing Date”), which percentage shall
be 7.25% of the aggregate gross proceeds from the sale of Securities in the Offering. The Placement Agent may deduct from the net proceeds
of the Offering payable to the Company on the Closing Date the Placement Fee set forth herein to be paid by the Company to the Placement
Agent.
B. Offering
Expenses. The Company will be responsible for and will pay all expenses relating to the Offering, including, without limitation, (a)
all filing fees and expenses relating to the registration of the Securities with the Commission; (b) all FINRA filing fees; (c) all fees
and expenses relating to the listing of the Shares (as defined below) on the Nasdaq Capital Market (the “Exchange”);
(d) the costs of all mailing and printing of the documents related to the Offering; (e) transfer and/or stamp taxes, if any, payable upon
the transfer of Securities from the Company to Investors (as defined below); (f) the fees and expenses of the Company’s accountants;
(g) FT Global’s travel expenses and due diligence expenses not to exceed $40,000; and (h) legal fees of FT Global’s counsel
not to exceed $50,000. The Placement Agent may deduct from the net proceeds of the Offering payable to the Company on the Closing Date
the expenses set forth herein to be paid by the Company to the Placement Agent, provided, however, that in the event that the Offering
is terminated, the Company agrees to reimburse the Placement Agent for the amount of expenses and legal fees incurred, up to the maximum
amounts set forth above, to the extent required by Section 5 hereof promptly after such termination.
C. Tail
Financing. The Placement Agent shall be entitled to fees per Section 2.A. of this Agreement with respect to any public or private
offering or other financing or capital-raising transaction of any kind (“Tail Financing”) to the extent that such Tail
Financing is provided to the Company by any investors that the Placement Agent has introduced to the Company through an in-person, an
electronic or a telephonic communication or investors that the Placement Agent had “wall-crossed” in connection with this
Offering (or any entity under common management or having a common investment advisor), if such Tail Financing is consummated at any time
within the 12-month period following the termination of this Agreement. Any right to the fees provided by this paragraph shall be terminated
upon termination of this Agreement by the Company for “Cause,” which shall mean a material breach by the Placement Agent of
this Agreement or a material failure by the Placement Agent to provide the Services as contemplated by this Agreement. Prior to ten (10)
days after termination or expiration of this Agreement, the Placement Agent will provide by electronic mail a written list of such persons
or entities that the Placement Agent had introduced to the Company or “wall-crossed” in connection with this Offering during
the term of this Agreement, which list shall be deemed to include entities under common management or having a common investment advisor
with the entities included on such list.
D. The
Services provided by the Placement Agent hereunder are solely for the benefit of the Company and are not intended to confer any rights
upon any persons or entities not a party hereto (including, without limitation, securityholders, employees or creditors of the Company)
as against the Placement Agent or its directors, officers, agents and employees.
3. Description
of the Offering.
The Securities to be offered
directly to various investors (each, an “Investor” or “Purchaser” and, collectively, the “Investors”
or the “Purchasers”) pursuant to the Securities Purchase Agreement dated on or about the date hereof between the Company
and the Investors (the “Securities Purchase Agreement”) shall consist of shares (the “Shares” or
the “Securities”) of the Company’s Class A common stock (“Common Stock”). The purchase price
for one Share shall be $0.23 per Share (the “Purchase Price”). If the Company shall default in its obligations to deliver
Securities to a Purchaser whose offer it has accepted and who has tendered payment, the Company shall indemnify and hold the Placement
Agent harmless against any loss, claim, damage or expense arising from or as a result of such default by the Company under this Agreement.
4. Delivery
and Payment; Closing.
Settlement of the Securities
purchased by an Investor shall be made as set forth in the Securities Purchase Agreement. On the Closing Date, the Securities to which
the Closing relates shall be delivered through such means as the parties to the Securities Purchase Agreement may hereafter agree. The
Securities shall be registered in such name or names and in such authorized denominations as set forth in the Securities Purchase Agreement.
The term “Business Day” means any day other than a Saturday, a Sunday, a legal holiday or a day on which banking institutions
are authorized or obligated by law to close in New York, New York.
5. Term
and Termination of Agreement.
The term of this Agreement
will commence upon the execution of this Agreement and will terminate on the tenth Business Day after the execution of this Agreement.
Notwithstanding anything to the contrary contained herein, any provision in this Agreement concerning or relating to confidentiality,
indemnification, contribution, advancement, the Company’s representations and warranties and the Company’s obligations to
pay fees, including without limitation as set forth in Section 2(C) and 2(D) above, and reimburse expenses will survive any expiration
or termination of this Agreement, subject to the terms of this Agreement. If any condition specified in Section 8 is not satisfied when
and as required to be satisfied, this Agreement may be terminated by the Placement Agent by written notice to the Company at any time
on or prior to a Closing Date, which termination shall be without liability on the part of any party to any other party, except that those
portions of this Agreement specified in Section 19 shall at all times be effective and shall survive such termination.
6. Permitted
Acts.
Nothing in this Agreement
shall be construed to limit the ability of the Placement Agent, its officers, directors, employees, agents, associated persons and any
individual or entity “controlling,” “controlled by,” or “under common control” with the Placement
Agent (as those terms are defined in Rule 405 under the Securities Act) to conduct its business including without limitation the ability
to pursue, investigate, analyze, invest in, or engage in investment banking, financial advisory or any other business relationship with
any 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.
7. Representations,
Warranties and Covenants of the Company.
As of the date and time of
the execution of this Agreement, the Closing Date and the Initial Sale Time (as defined herein), the Company (i) makes such representations
and warranties to the Placement Agent as the Company makes to the Investors pursuant to the Securities Purchase Agreement, and (ii) further
represents, warrants and covenants to the Placement Agent, other than as disclosed in Prospectus (as defined below) or in any of its filings
with the Securities and Exchange Commission (the “Commission”) that are incorporated by reference into the Registration
Statement (as defined below), that:
A. Registration
Matters.
i. The
Company has filed with the Commission a registration statement on Form S-1 (File No. 333-280743) including a related prospectus, for the
registration of the Shares under the Securities Act and the rules and regulations thereunder (the “Securities Act Regulations”).
The registration statement has been declared effective under the Securities Act by the Commission on July 15, 2024. The “Registration
Statement,” as of any time, means such registration statement as amended by any post-effective amendments thereto at such time,
including the exhibits and any schedules thereto at such time, the documents incorporated or deemed to be incorporated by reference therein
at such time and the documents otherwise deemed to be a part thereof as of such time pursuant to Rule 430A (“Rule 430A”).
Any registration statement filed pursuant to Rule 462(b) of the Securities Act Regulations is hereinafter called the “Rule 462(b)
Registration Statement,” and after such filing the term “Registration Statement” shall include the Rule 462(b) Registration
Statement. The prospectus set forth in the Registration Statement in the form first used to confirm sales of the Shares (or in the form
first made available to the Placement Agent by the Company to meet requests of purchasers pursuant to Rule 173 under the Securities Act)
is hereinafter referred to as the “Prospectus” and the term “Preliminary Prospectus” means any preliminary
form of the Prospectus, specifically related to the Shares filed with the Commission by the Company with the consent of the Placement
Agent.
ii. All
references in this Agreement to financial statements and schedules and other information which is “contained,” “included”
or “stated” (or other references of like import) in the Registration Statement, any Preliminary Prospectus or the Prospectus
shall be deemed to include all such financial statements and schedules and other information incorporated or deemed incorporated by reference
in the Registration Statement, such Preliminary Prospectus or the Prospectus, as the case may be, prior to the execution and delivery
of this Agreement; and all references in this Agreement to amendments or supplements to the Registration Statement, any Preliminary Prospectus
or the Prospectus shall be deemed to include the filing of any document under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), and the rules and regulations thereunder (the “Exchange Act Regulations”), incorporated or deemed
to be incorporated by reference in the Registration Statement, such Preliminary Prospectus or the Prospectus, as the case may be, at or
after the execution and delivery of this Agreement.
iii. The
term “Disclosure Package” means (i) the Preliminary Prospectus, as most recently amended or supplemented immediately
prior to the Initial Sale Time (as defined herein), and (ii) the Issuer Free Writing Prospectuses (as defined below), if any, identified
in Schedule I hereto.
iv. The
term “Issuer Free Writing Prospectus” means any issuer free writing prospectus, as defined in Rule 433 of the Securities
Act Regulations. The term “Free Writing Prospectus” means any free writing prospectus, as defined in Rule 405 of the
Securities Act Regulations.
v. Any
Preliminary Prospectus when filed with the Commission, and the Registration Statement as of each effective date and as of the date hereof,
complied or will comply, and the Prospectus and any further amendments or supplements to the Registration Statement, any Preliminary Prospectus
or the Prospectus will, when they become effective or are filed with the Commission, as the case may be, comply, in all material respects,
with the requirements of the Securities Act and the Securities Act Regulations; and the documents incorporated by reference in the Registration
Statement, any Preliminary Prospectus or the Prospectus complied, and any further documents so incorporated will comply, when filed with
the Commission, in all material respects to the requirements of the Exchange Act and Exchange Act Regulations.
vi. The
issuance by the Company of the Securities has been registered under the Securities Act. The Securities will be issued pursuant to the
Registration Statement and will be freely transferable and freely tradable by each of the Investors without restriction, unless otherwise
restricted by applicable law or regulation. The Company is eligible to use Form S-1 under the Securities Act, including, without limitation,
the incorporation by reference provisions in General Instruction VII of Form S-1.
B. Stock
Exchange Listing. The Common Stock is approved for listing on the Exchange and the Company has taken no action designed to, or likely
to have the effect of, delisting the Common Stock from the Exchange, nor has the Company received, except as disclosed below, any notification
that the Exchange is contemplating terminating such listing. On July 11, 2024, the Company received a letter from the Listing Qualifications
Department of The Nasdaq Stock Market LLC notifying the Company that, for the last 30 consecutive business days, the closing bid price
for the Common Stock was below $1.00 per share, which is the minimum closing bid price required for continued listing on The Nasdaq Capital
Market pursuant to Nasdaq Listing Rule 5550(a)(2). The letter also specifies that the Company is provided a compliance period of 180 calendar
days (under certain circumstances, an additional 180 calendar days period may be provided) to regain compliance with the minimum closing
bid price requirement. If the Company fails to regain compliance during the specified compliance period(s), the Common Stock will be subject
to delisting.
C. No
Stop Orders, etc. Neither the Commission nor, to the Company's knowledge, any state regulatory authority has issued any order preventing
or suspending the use of the Registration Statement, any Preliminary Prospectus or the Prospectus or has instituted or, to the Company's
knowledge, threatened to institute, any proceedings with respect to such an order. The Company has complied with each request (if any)
from the Commission for additional information.
D. Disclosures
in Registration Statement.
i. Compliance
with Securities Act and 10b-5 Representation.
(a) Each
of the Registration Statement and any post-effective amendment thereto, at the time it became effective, complied in all material respects
with the requirements of the Securities Act and the Securities Act Regulations. The Preliminary Prospectus and the Prospectus, at the
time each was or will be filed with the Commission, complied or will comply in all material respects with the requirements of the Securities
Act and the Securities Act Regulations. The Preliminary Prospectus delivered to the Placement Agent for use in connection with this Offering
and the Prospectus was or will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR,
except to the extent permitted by Regulation S-T.
(b) None
of the Registration Statement, any amendment thereto, or the Preliminary Prospectus, as of 8:00 a.m. (Eastern time) on the date hereof
(the “Initial Sale Time”), and at the Closing Date, contained, contains or will contain an untrue statement of a material
fact or omitted, omits or will omit to state a material fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty
shall not apply to statements made or statements omitted in reliance upon and in conformity with written information furnished to the
Company with respect to the Placement Agent by the Placement Agent expressly for use in the Registration Statement or any amendment thereof
or supplement thereto. The parties acknowledge and agree that such information provided by or on behalf of the Placement Agent consists
solely of the following disclosure contained in the “Plan of Distribution” section of the Prospectus: (i) the name of the
Placement Agent, and (ii) the information regarding its fees and expenses (the “Placement Agent’s Information”).
(c) The
Disclosure Package, as of the Initial Sale Time and at the Closing Date, did not, does not and will not include an untrue statement of
a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and each Issuer Free Writing Prospectus does not conflict with the information contained in
the Registration Statement, any Preliminary Prospectus, or the Prospectus, and each such Issuer Free Writing Prospectus, as supplemented
by and taken together with the Preliminary Prospectus as of the Initial Sale Time, did not include an untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were
made, not misleading; provided, however, that this representation and warranty shall not apply to statements made or statements omitted
in reliance upon and in conformity with written information furnished to the Company with respect to the Placement Agent by the Placement
Agent expressly for use in the Registration Statement, the Preliminary Prospectus or the Prospectus or any amendment thereof or supplement
thereto. The parties acknowledge and agree that such information provided by or on behalf of any Placement Agent consists solely of the
Placement Agent’s Information; and
(d)
Neither the Prospectus nor any amendment or supplement thereto, as of its issue date, at the time of any filing with the Commission pursuant
to Rule 424(b), or at the Closing Date, included, includes or will include an untrue statement of a material fact or omitted, omits or
will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that this representation and warranty shall not apply to the Placement Agent's Information.
ii. Disclosure
of Agreements. The agreements and documents described in the Registration Statement, the Disclosure Package and the Prospectus conform
in all material respects to the descriptions thereof contained therein and there are no agreements or other documents required by the
Securities Act and the Securities Act Regulations to be described in the Registration Statement, the Disclosure Package and the Prospectus
or to be filed with the Commission as exhibits to the Registration Statement, that have not been so described or filed. Each agreement
or other instrument (however characterized or described) to which the Company is a party or by which it is or may be bound or affected
and (i) that is referred to in the Registration Statement, the Disclosure Package and the Prospectus, and (ii) is material to the Company's
business, has been duly authorized and validly executed by the Company, is in full force and effect in all material respects and is enforceable
against the Company and, to the Company's knowledge, the other parties thereto, in accordance with its terms, except (x) as such enforceability
may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally, (y) as enforceability
of any indemnification or contribution provision may be limited under the federal and state securities laws, and (z) that the remedy of
specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion
of the court before which any proceeding therefor may be brought. None of such agreements or instruments has been assigned by the Company,
and neither the Company nor, to the Company's knowledge, any other party is in default thereunder and, to the Company's knowledge, no
event has occurred that, with the lapse of time or the giving of notice, or both, would constitute a default thereunder, except as disclosed
in the Registration Statement, the Disclosure Package and the Prospectus. To the Company's knowledge, performance by the Company of the
material provisions of such agreements or instruments will not result in a violation of any existing applicable law, rule, regulation,
judgment, order or decree of any governmental 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.
iii. Changes
After Dates in Registration Statement.
(a) No
Material Adverse Change. Since the respective dates as of which information is given in the Registration Statement, the Disclosure
Package and the Prospectus, except as otherwise specifically stated therein: (i) there has been no material adverse change in the financial
position or results of operations of the Company, nor any change or development that, singularly or in the aggregate, would involve a
material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects
of the Company (a “Material Adverse Change”); (ii) there have been no material transactions entered into by the Company,
other than as contemplated pursuant to this Agreement; and (iii) no officer or director of the Company has resigned from any position
with the Company.
(b) Recent
Securities Transactions, etc. Subsequent to the respective dates as of which information is given in the Registration Statement, the
Disclosure Package and the Prospectus, and except as may otherwise be indicated or contemplated herein or disclosed in the Registration
Statement, the Disclosure Package and the Prospectus, the Company has not: (i) issued any securities (other than (i) grants under any
share compensation plan and (ii) Common Stock issued upon the exercise or conversion of option, warrants or convertible securities described
in the Registration Statement, the Disclosure Package and the Prospectus) 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.
E. Transactions
Affecting Disclosure to FINRA.
i. Finder’s
Fees. There are no claims, payments, arrangements, agreements or understandings relating to the payment of a finder's, consulting
or origination fee by the Company or any executive officer or director of the Company with respect to the sale of the Securities hereunder
or any other arrangements, agreements or understandings of the Company or, to the Company's knowledge, any of its stockholders.
ii. Payments
Within Twelve (12) Months. 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 (12) months prior to the date hereof, other than
the payment to the Placement Agent as provided hereunder in connection with the Offering and other than (a) the fees paid to AC Sunshine
Securities LLC as placement agent in connection with the public offering of 13,210,000 shares of the Company’s Class A common stock
which closed on May 15, 2024, and (b) the fees paid to Maxim Group LLC as underwriter in connection with the public offering of 1,250,000
shares of the Company’s Class A common stock which closed on August 3, 2023.
iii. Use
of Proceeds. None of the net proceeds of the Offering will be paid by the Company to any participating FINRA member or its affiliates,
except as specifically authorized herein.
iv. FINRA
Affiliation. There is no (i) officer or director of the Company, (ii) to the Company’s knowledge, beneficial owner of 10% or
more of any class of the Company's securities or (iii) to the Company’s knowledge, beneficial owner of the Company's unregistered
equity securities which were acquired during the 180-day period immediately preceding the submission of the confidential Registration
Statement that is an affiliate or associated person of a FINRA member participating in the Offering (as determined in accordance with
the rules and regulations of FINRA).
F. Integration.
Neither the Company, nor any of its affiliates, nor any person acting on its or their behalf has, directly or indirectly, made any offers
or sales of any security or solicited any offers to buy any security, under circumstances that would cause the Offering to be integrated
with prior offerings by the Company for purposes of the Securities Act that would require the registration of any such securities under
the Securities Act.
G. Restriction
on Sales of Capital Stock. The Company, on behalf of itself and any successor entity, agrees that it will not, for a period of ninety
(90) days after the date of the final prospectus (the “Lock-Up Period”), without the prior written consent of the Placement
Agent (i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of capital stock
of the Company or any securities convertible into or exercisable or exchangeable for shares of capital stock of the Company; (ii) file
or cause to be filed any registration statement with the Commission relating to the offering of any shares of capital stock of the Company
or any securities convertible into or exercisable or exchangeable for shares of capital stock of the Company, other than pursuant to a
registration statement on Form S-8 for employee benefit plans or, commencing 30 days after the Closing Date, pursuant to a registration
statement on Form S-3; whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of shares of capital
stock of the Company or such other securities, in cash or otherwise; or (iii) publicly announce an intention to effect any transaction
specified in clause (i) or (ii). The restrictions contained in this section shall not apply to (i) the issuance by the Company of Common
Stock upon the exercise of stock options, warrants or the conversion of a security, in each case, that are outstanding on the date hereof
or issued in the Offering, provided that such securities have not been amended since the date hereof to increase the number of such securities
or to decrease the exercise price, exchange price or conversion price of such securities (other than in connection with share splits or
combinations) or to extend the term of such securities; (ii) the grant by the Company of stock options or other stock-based awards, or
the issuance of shares of capital stock of the Company under any stock compensation plan of the Company in effect on the date hereof;
and (iii) securities issued pursuant to acquisitions or strategic transactions approved by a majority of the disinterested directors of
the Company, provided that such securities are issued as “restricted securities” (as defined in Rule 144 under the Securities
Act) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the
Lock-Up Period, and provided that any such issuance shall only be to a person (or to the equityholders of a person) which is, itself or
through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the current business of the Company
at such time and shall provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction
in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing
in securities.
H. Lock-Up
Agreements. The Company has caused each of its officers, directors and beneficial owners of 5% or more of any class of the Company's
securities to deliver to the Placement Agent an executed Lock-Up Agreement, in the form attached as Exhibit A hereto (the “Lock-Up
Agreement”).
8. Conditions
of the Obligations of the Placement Agent.
The obligations of the Placement
Agent hereunder shall be subject to the accuracy of the representations and warranties on the part of the Company set forth in Section
7 hereof, in each case as of the date hereof and as of the Closing Date as though then made, to the timely performance by each of the
Company of its covenants and other obligations hereunder on and as of such dates, and to each of the following additional conditions:
A. Regulatory
Matters.
i. Effectiveness
of Registration Statement; Rule 424 Information. The Registration Statement is effective on or about the date of this Agreement, and,
on the Closing Date no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has
been issued under the Securities Act, no order preventing or suspending the use of any Preliminary Prospectus or the Prospectus has been
issued and no proceedings for any of those purposes have been instituted or are pending or, to the Company’s knowledge, contemplated
by the Commission. The Company has complied with each request (if any) from the Commission for additional information. All filings with
the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Date shall have been made within the applicable
time period prescribed for such filing by Rule 424.
ii. FINRA
Clearance. On or before the Closing Date, the Placement Agent shall have received clearance from FINRA as to the amount of compensation
allowable or payable to the Placement Agent as described in the Registration Statement.
iii. Listing
of Additional Shares. On or before the Closing Date, the Company shall have filed a notice with the Exchange with respect to the Company’s
additional listing of the securities sold in the Offering.
B. Company
Counsel Matters. On the Closing Date, the Placement Agent shall have received the opinion and negative assurance letter of Hunter
Taubman Fischer & Li LLC, securities counsel for the Company; and the opinions Maynard Nexsen, PC, North Carolina counsel for the
Company, in each case dated the Closing Date and addressed to the Placement Agent, and in each case substantially in form and substance
reasonably satisfactory to the Placement Agent.
C. Comfort
Letter. The Placement Agent shall have received letters dated the date of this Agreement and the Closing Date, each in form and substance
satisfactory to the Placement Agent, from Assentsure PAC containing statements and information of the type ordinarily included in accountants’
“comfort letters” with respect to the financial statements and certain financial information contained in the Registration
Statement and Prospectus.
D. Officers’
Certificate. On the Closing Date, the Placement Agent shall have received a certificate of the chief executive officer and chief financial
officer of the Company, dated the Closing Date, to the effect that, (i) such officers have carefully examined the Registration Statement,
the Disclosure Package, any Issuer Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statement and each
amendment thereto, as of the Initial Sale Time and through the Closing Date did not include any untrue statement of a material fact and
did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances
in which they were made, not misleading, and the Disclosure Package, as of the Initial Sale Time through the Closing Date, any Issuer
Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the
respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state
a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading;
and (ii) as of the Closing Date the representations and warranties of the Company contained herein and in the Securities Purchase Agreement
were and are accurate in all material respects, and that the obligations to be performed by the Company hereunder have been fully performed
in all material respects.
E. Secretary’s
Certificate. On the Closing Date, the Placement Agent shall have received from the Company a certificate of the corporate secretary
of the Company, dated the Closing Date, certifying to the organizational documents of the Company, good standing in the jurisdiction of
formation of the Company and board resolutions authorizing the Offering of the Securities.
F. Intentionally
deleted.
G. No
Material Changes. Prior to and on the Closing Date: (i) there shall have been no Material Adverse Change or development involving
a prospective Material Adverse Change in the condition or prospects or the business activities, financial or otherwise, of the Company
from the latest dates as of which such condition is set forth in the Registration Statement, the Disclosure Package and the Prospectus;
(ii) no action, suit or proceeding, at law or in equity, shall have been pending or threatened against the Company or any affiliates of
the Company before or by any court or federal or state commission, board or other administrative agency wherein an unfavorable decision,
ruling or finding may materially adversely affect the business, operations, prospects or financial condition or income of the Company,
except as set forth in the Registration Statement, the Disclosure Package and the Prospectus; (iii) no stop order shall have been issued
under the Securities Act and no proceedings therefor shall have been initiated or threatened by the Commission; and (iv) the Registration
Statement, the Disclosure Package and the Prospectus and any amendments or supplements thereto shall contain all material statements which
are required to be stated therein in accordance with the Securities Act and the Securities Act Regulations and shall conform in all material
respects to the requirements of the Securities Act and the Securities Act Regulations, and neither the Registration Statement, the Disclosure
Package nor the Prospectus nor any amendment or supplement thereto shall contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which
they were made, not misleading.
H. Delivery
of Agreements.
(i) Lock-Up Agreements.
On or before the Closing Date, the Company shall have delivered to the Placement Agent executed copies of the Lock-Up Agreement from each
of the Company’s officers, directors and beneficial owners of 5% or more of any class of the Company's securities.
I. Additional
Documents. At the Closing Date, Placement Agent’s counsel shall have been furnished with such documents and opinions as they
may reasonably require in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities as herein
contemplated shall be satisfactory in form and substance to the Placement Agent and Placement Agent’s counsel.
9. Indemnification
and Contribution; Procedures.
A. Indemnification
of the Placement Agent. The Company agrees to indemnify and hold harmless the Placement Agent, its affiliates and each person controlling
such Placement Agent (within the meaning of Section 15 of the Securities Act), and the directors, officers, agents and employees of the
Placement Agent, its affiliates and each such controlling person (the Placement Agent, and each such entity or person hereafter is referred
to as an “Indemnified Person”) from and against any losses, claims, damages, judgments, assessments, costs and other
liabilities (collectively, the “Liabilities”), and shall reimburse each Indemnified Person for all fees and expenses
(including the reasonable fees and expenses of counsel for the Indemnified Persons, except as otherwise expressly provided in this Agreement)
(collectively, the “Expenses”) and agrees to advance payment of such Expenses as they are incurred by an Indemnified
Person in investigating, preparing, pursuing or defending any actions, whether or not any Indemnified Person is a party thereto, arising
out of or based upon any untrue statement or alleged untrue statement of a material fact contained in (i) the Registration Statement,
the Disclosure Package, the Preliminary Prospectus, the Prospectus or in any Issuer Free Writing Prospectus (as from time to time each
may be amended and supplemented); (ii) any materials or information provided to investors by, or with the approval of, the Company in
connection with the marketing of the Offering, including any “road show” or investor presentations made to investors by the
Company (whether in person or electronically); or (iii) any application or other document or written communication (in this Section 9,
collectively called “application”) executed by the Company or based upon written information furnished by the Company in any
jurisdiction in order to qualify the Securities under the securities laws thereof or filed with the Commission, any state securities commission
or agency, any national securities exchange; or the omission or alleged omission therefrom of a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, unless such
statement or omission was made in reliance upon, and in conformity with, the Placement Agent’s information. The Company also agrees
to reimburse each Indemnified Person for all Expenses as they are incurred in connection with such Indemnified Person’s enforcement
of his or its rights under this Agreement. Each Indemnified Person is an intended third party beneficiary with the same rights to enforce
the indemnification that each Indemnified Person would have if he was a party to this Agreement.
B. Procedure.
Upon receipt by an Indemnified Person of actual notice of an action against such Indemnified Person with respect to which indemnity may
reasonably be expected to be sought under this Agreement, such Indemnified Person shall promptly notify the Company in writing; provided
that failure by any Indemnified Person so to notify the Company shall not relieve the Company from any obligation or liability which the
Company may have on account of this Section 9 or otherwise to such Indemnified Person, except to the extent
(and only to the extent) that its ability to assume the defense of any such action (as contemplated in the next sentence) is actually
impaired by such failure or delay. The Company shall, if requested by the Placement Agent, assume the defense of any such action
(including the employment of counsel reasonably satisfactory to the Placement Agent). Any Indemnified Person shall have the right to employ
separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the
expense of such Indemnified Person unless: (i) the Company has failed promptly to assume the defense and employ counsel for the benefit
of the Placement Agent and the other Indemnified Persons or (ii) such Indemnified Person shall have been advised that in the opinion of
counsel that there is an actual or potential conflict of interest that prevents (or makes it imprudent for) the counsel engaged by the
Company for the purpose of representing the Indemnified Person, to represent both such Indemnified Person and any other person represented
or proposed to be represented by such counsel, it being understood, however, that the Company shall not
be liable for the expenses of more than one separate counsel (together with local counsel),
representing the Placement Agent and all Indemnified Persons who are parties to such action.
The Company shall not be liable for any settlement of any action effected without its written consent (which shall not be unreasonably
withheld). In addition, the Company shall not, without the prior written consent of the Placement Agent, settle, compromise or consent
to the entry of any judgment in or otherwise seek to terminate any pending or threatened action in respect of which advancement, reimbursement,
indemnification or contribution may be sought hereunder (whether or not such Indemnified Person is a party thereto) unless such settlement,
compromise, consent or termination (i) includes an unconditional release of each Indemnified Person, acceptable to such Indemnified Party,
from all Liabilities arising out of such action for which indemnification or contribution may be sought hereunder and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any Indemnified Person. The advancement,
reimbursement, indemnification and contribution obligations of the Company required hereby shall be made by periodic payments of the amount
thereof during the course of the investigation or defense, as every Liability and Expense is incurred and is due and payable, and in such
amounts as fully satisfy each and every Liability and Expense as it is incurred (and in no event later than 30 days following the date
of any invoice therefor).
C. Indemnification
of the Company. The Placement Agent agrees to indemnify and hold harmless the Company, its directors, its officers who signed the
Registration Statement and persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act against any and all Liabilities, but only with respect to untrue statements or omissions, or alleged untrue statements or
omissions made in the Registration Statement, any Preliminary Prospectus, the Disclosure Package or Prospectus or any amendment or supplement
thereto, in reliance upon, and in strict conformity with, the Placement Agent’s Information. In case any action shall be brought
against the Company or any other person so indemnified based on any Preliminary Prospectus, the Registration Statement, the Disclosure
Package or Prospectus or any amendment or supplement thereto, and in respect of which indemnity may be sought against the Placement Agent,
the Placement Agent shall have the rights and duties given to the Company, and the Company and each other person so indemnified shall
have the rights and duties given to the Placement Agent by the provisions of Section 9.B. The Company agrees promptly to notify the Placement
Agent of the commencement of any litigation or proceedings against the Company or any of its officers, directors or any person, if any,
who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, in connection with
the issuance and sale of the Securities or in connection with the Registration Statement, the Disclosure Package, the Prospectus or any
Issuer Free Writing Prospectus, provided, that failure by the Company so to notify the Placement
Agent shall not relieve the Placement Agent from any obligation or liability which the Placement Agent may have on account of this Section
9.C. or otherwise to the Company, except to the extent the Placement Agent is materially prejudiced as a proximate result of such failure.
D. Contribution.
In the event that a court of competent jurisdiction makes a finding that indemnity is unavailable to any indemnified person, then each
indemnifying party shall contribute to the Liabilities and Expenses paid or payable by such indemnified person in such proportion as is
appropriate to reflect (i) the relative benefits to the Company, on the one hand, and to the Placement Agent and any other Indemnified
Person, on the other hand, of the matters contemplated by this Agreement or (ii) if the allocation provided by the immediately preceding
clause is not permitted by applicable law, not only such relative benefits but also the relative fault of the Company, on the one hand,
and the Placement Agent and any other Indemnified Person, on the other hand, in connection with the matters as to which such Liabilities
or Expenses relate, as well as any other relevant equitable considerations; provided that in no event shall the Company contribute less
than the amount necessary to ensure that all Indemnified Persons, in the aggregate, are not liable for any Liabilities and Expenses in
excess of the amount of commissions actually received by the Placement Agent pursuant to this Agreement. The relative fault shall be determined
by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company on the one hand or the Placement Agent on the other and the parties’
relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the
Placement Agent agree that it would not be just and equitable if contributions pursuant to this subsection (D) were determined by pro
rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in
this subsection (D). For purposes of this paragraph, the relative benefits to the Company, on the one hand, and to the Placement Agent
on the other hand, of the matters contemplated by this Agreement shall be deemed to be in the same proportion as: (a) the total value
received by the Company in the Offering, whether or not such Offering is consummated, bears to (b) the commissions paid to the Placement
Agent under this Agreement. Notwithstanding the above, no person guilty of fraudulent misrepresentation within the meaning of Section
11(f) of the Securities Act shall be entitled to contribution from a party who was not guilty of fraudulent misrepresentation.
E. Limitation.
The Company also agrees that no Indemnified Person shall have any liability (whether direct or indirect, in contract or tort or otherwise)
to the Company for or in connection with advice or services rendered or to be rendered by any Indemnified Person pursuant to this Agreement,
the transactions contemplated thereby or any Indemnified Person’s actions or inactions in connection with any such advice, services
or transactions, except to the extent that a court of competent jurisdiction has made a finding that Liabilities (and related Expenses)
of the Company have resulted primarily from such Indemnified Person’s gross negligence or willful misconduct in connection with
any such advice, actions, inactions or services.
F. Survival.
The advancement, reimbursement, indemnity and contribution obligations set forth in this Section 9 shall remain in full force and effect
regardless of any termination of, or the completion of any Indemnified Person’s services under or in connection with, this Agreement.
Each Indemnified Person is an intended third-party beneficiary of this Section 9, and has the right to enforce the provisions of Section
9 as if he/she/it was a party to this Agreement.
10. Limitation
of FT Global’s Liability to the Company.
FT Global and the Company
further agree that neither FT Global nor any of its affiliates or any of their respective officers, directors, controlling persons (within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), employees or agents shall have any liability to the
Company, its security holders or creditors, or any person asserting claims on behalf of or in the right of the Company (whether direct
or indirect, in contract or tort, for an act of negligence or otherwise) for any losses, fees, damages, liabilities, costs, expenses or
equitable relief arising out of or relating to this Agreement or the Services rendered hereunder, except for losses, fees, damages, liabilities,
costs or expenses that arise out of or are based on any action of or failure to act by FT Global and that are finally judicially determined
to have resulted solely from the gross negligence or willful misconduct of FT Global.
11. Limitation
of Engagement to the Company.
The Company acknowledges that
FT Global has been retained only by the Company, that FT Global is providing services hereunder as an independent contractor (and not
in any fiduciary or agency capacity) and that the Company’s engagement of FT Global is not deemed to be on behalf of, and is not
intended to confer rights upon, any shareholder, owner or partner of the Company or any other person not a party hereto as against FT
Global or any of its affiliates, or any of its or their respective officers, directors, controlling persons (within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act), employees or agents. Unless otherwise expressly agreed in writing by FT Global,
no one other than the Company is authorized to rely upon any statement or conduct of FT Global in connection with this Agreement. The
Company acknowledges that any recommendation or advice, written or oral, given by FT Global to the Company in connection with FT Global’s
engagement is intended solely for the benefit and use of the Company’s management and directors in considering a possible Offering,
and any such recommendation or advice is not on behalf of, and shall not confer any rights or remedies upon, any other person or be used
or relied upon for any other purpose. FT Global shall not have the authority to make any commitment binding on the Company. The Company,
in its sole discretion, shall have the right to reject any investor introduced to it by FT Global. If any purchase agreement and/or related
transaction documents are entered into between the Company and the investors in the Offering, FT Global will be entitled to rely on the
representations, warranties, agreements and covenants of the Company contained in any such purchase agreement and related transaction
documents as if such representations, warranties, agreements and covenants were made directly to FT Global by the Company.
12. Amendments
and Waivers.
No supplement, modification
or waiver of this Agreement shall be binding unless executed in writing by the party to be bound thereby. The failure of a party to exercise
any right or remedy shall not be deemed or constitute a waiver of such right or remedy in the future. No waiver of any of the provisions
of this Agreement shall be deemed or shall constitute a waiver of any other provision hereof (regardless of whether similar), nor shall
any such waiver be deemed or constitute a continuing waiver unless otherwise expressly provided.
13. Confidentiality.
In the event of the consummation
or public announcement of any Offering, FT Global shall have the right to disclose its participation in such Offering, including, without
limitation, the placement at its cost of “tombstone” advertisements in financial and other newspapers and journals. FT Global
agrees not to use any confidential information concerning the Company provided to FT Global by the Company for any purposes other than
those contemplated under this Agreement.
14. Headings.
The headings of the various
sections of this Agreement have been inserted for convenience of reference only and will not be deemed to be part of this Agreement.
15. Counterparts.
This Agreement may be executed
in one or more counterparts and, if executed in more than one counterpart, the executed counterparts shall each be deemed to be an original
and all such counterparts shall together constitute one and the same instrument. The words “execution,” “signed”
and “signature” and words of like import in this Agreement and all documents relating thereto, shall (to the extent permissible
under governing documents) include images of manually executed signatures transmitted by facsimile or other electronic format (including,
without limitation, “pdf,” “tif” or “jpg”) and other electronic signatures (including, without limitation,
DocuSign and AdobeSign). The use of electronic signatures and electronic records (including, without limitation, any contract or other
record created, generated, sent, communicated, received or stored by electronic means) shall be of the same legal effect, validity and
enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable
law, including, without limitation, the Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures
and Records Act and any other applicable law.
16. Severability.
The invalidity, illegality
or unenforceability of any section, paragraph or provision of this Agreement shall not affect the validity, legality or enforceability
of any other section, paragraph or provision hereof. If any Section, paragraph or provision of this Agreement is for any reason determined
to be invalid, illegal or unenforceable, there shall be deemed to be made such minor changes (and only such minor changes) as are necessary
to make it valid and enforceable.
17. Use
of Information.
The Company will furnish FT
Global such written information as FT Global reasonably requests in connection with the performance of its services hereunder. The Company
understands, acknowledges and agrees that, in performing its services hereunder, FT Global will use and rely entirely upon such information
as well as publicly available information regarding the Company and other potential parties to an Offering and that FT Global does not
assume responsibility for independent verification of the accuracy or completeness of any information, whether publicly available or otherwise
furnished to it, concerning the Company or otherwise relevant to an Offering, including, without limitation, any financial information,
forecasts or projections considered by FT Global in connection with the provision of its services.
18. Absence
of Fiduciary Relationship.
The Company acknowledges and
agrees that: (a) the Placement Agent has been retained solely to act as Placement Agent in connection with the sale of the Securities
and that no fiduciary, advisory or agency relationship between the Company and the Placement Agent has been created in respect of any
of the transactions contemplated by this Agreement, irrespective of whether the Placement Agent has advised or is advising the Company
on other matters; (b) the Purchase Price and other terms of the Securities set forth in this Agreement were established by the Company
following discussions and arms-length negotiations with the Investors and the Company is capable of evaluating and understanding and understands
and accepts the terms, risks and conditions of the transactions contemplated by this Agreement; (c) it has been advised that the Placement
Agent and its affiliates are engaged in a broad range of transactions that may involve interests that differ from those of the Company
and that the Placement Agent has no obligation to disclose such interest and transactions to the Company by virtue of any fiduciary, advisory
or agency relationship; and (d) it has been advised that the Placement Agent is acting, in respect of the transactions contemplated by
this Agreement, solely for the benefit of the Placement Agent, and not on behalf of the Company and that the Placement Agent may have
interests that differ from those of the Company. The Company waives to the full extent permitted by applicable law any claims it may have
against the Placement Agent arising from an alleged breach of fiduciary duty in connection with the Offering.
19. Survival
of Indemnities, Representations, Warranties, Etc.
The respective indemnities,
covenants, agreements, representations, warranties and other statements of the Company and Placement Agent, as set forth in this Agreement
or made by them respectively, pursuant to this Agreement, shall remain in full force and effect, regardless of any investigation made
by or on behalf of the Placement Agent, the Company, the Purchasers or any person controlling any of them and shall survive delivery of
and payment for the Securities. Notwithstanding any termination of this Agreement, including without limitation any termination pursuant
to Section 5, the payment, reimbursement, indemnity, contribution, advancement and limitation of liability agreements contained in Sections
2, 3, 9, 10, and 11, and the Company’s covenants, representations, and warranties set forth in this Agreement, shall not terminate
and shall remain in full force and effect at all times. The indemnity and contribution provisions contained in Section 9 and the covenants,
warranties and representations of the Company contained in this Agreement shall remain operative and in full force and effect regardless
of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any of the Placement Agent, any person who controls
the Placement Agent within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act or any affiliate of
the Placement Agent, or by or on behalf of the Company, its directors or officers or any person who controls the Company within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act, and (iii) the issuance and delivery of the Securities.
20. Governing
Law.
This Agreement shall be governed
by and construed in accordance with the laws of the State of New York applicable to agreements made and to be fully performed therein,
without regard to its choice of law provisions. Any disputes that arise under this Agreement, even after the termination of this Agreement,
will be heard only in the state or federal courts located in the City and County of New York, Borough of Manhattan. The parties hereto
expressly agree to submit themselves to the jurisdiction of the foregoing courts in the City and County of New York, Borough of Manhattan.
The parties hereto expressly waive any rights they may have to contest the jurisdiction, venue or authority of any court sitting in the
City and County of New York, Borough of Manhattan.
21. Notices.
All communications hereunder
shall be in writing and shall be mailed or hand delivered and confirmed to the parties hereto as follows:
If to the Company:
Cheetah Net Supply Chain Service
Inc.
6201 Fairview Road, Suite
225
Charlotte, North Carolina,
28210
Attention: CEO
If to the Placement Agent:
FT Global Capital, Inc.
1688 Meridian Avenue, Suite
700, Miami Beach, FL, 33139
Attention: President, CEO
Any party hereto may change
the address for receipt of communications by giving written notice to the others.
22. Miscellaneous.
This Agreement constitutes
the entire agreement of FT Global and the Company, and supersedes any prior agreements, with respect to the subject matter hereof. If
any provision of this Agreement is determined to be invalid or unenforceable in any respect, such determination will not affect such provision
in any other respect, and the remainder of this Agreement shall remain in full force and effect.
23. Successors.
This Agreement will inure
to the benefit of and be binding upon the parties hereto, and to the benefit of the employees, officers and directors and controlling
persons referred to in Section 9 hereof, and to their respective successors, and personal representatives, and, except as set forth in
Section 9 of this Agreement, no other person will have any right or obligation hereunder.
[SIGNATURE PAGE TO FOLLOW]
In acknowledgment that the
foregoing correctly sets forth the understanding reached by FT Global and the Company, and intending to be legally bound, please sign
in the space provided below, whereupon this letter shall constitute a binding agreement as of the date executed.
Very truly yours,
Cheetah
Net Supply Chain Service Inc. |
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By: |
/s/ Huan
Liu |
|
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Name: |
Huan Liu |
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Title: |
CEO |
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Confirmed
as of the date first written above: |
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FT
Global Capital, Inc. |
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By: |
/s/
Alec Orudjev |
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Name: |
Alec
Orudjev |
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Title: |
General Counsel |
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SCHEDULE I
Issuer General Use Free Writing
Prospectuses
None.
Exhibit A
Lock-Up Agreement
Exhibit 10.2
SECURITIES
PURCHASE AGREEMENT
This Securities Purchase
Agreement (this “Agreement”), dated as of July 25, 2024, is by and between Cheetah Net Supply Chain Service
Inc., a North Carolina corporation (the “Company”), and each purchaser identified on the signature pages hereto
(each, including its successors and assigns, a “Purchaser” and collectively the “Purchasers”).
WHEREAS, subject to the terms
and conditions set forth in this Agreement and pursuant to an effective registration statement under the Securities Act of 1933, as amended
(the “Securities Act”), the Company desires to issue and sell to each Purchaser, and each Purchaser, severally and
not jointly, desires to purchase from the Company, securities of the Company as more fully described in this Agreement.
NOW, THEREFORE, IN
CONSIDERATION of the mutual covenants contained in this Agreement, and for other good and valuable consideration the receipt and adequacy
of which are hereby acknowledged, the Company and each Purchaser agree as follows:
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:
“Acquiring Person”
shall have the meaning ascribed to such term in Section 4.5.
“Action”
shall have the meaning ascribed to such term in Section 3.1(j).
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a Person as such terms are used in and construed under Rule 405 under the Securities Act.
“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
are open for use by customers on such day.
“Closing”
means the closing of the purchase and sale of the Securities pursuant to Section 2.1.
“Closing
Date” means the Trading Day on which all of the Transaction Documents have been executed and delivered by the applicable parties
thereto, and all conditions precedent to (i) the Purchasers’ obligations to pay the Subscription Amount and (ii) the
Company’s obligations to deliver the Securities, in each case, have been satisfied or waived, but in no event later than the first
(1st) Trading Day following the date hereof (or the second (2nd) Trading Day following the date hereof if this Agreement is signed
on a day that is not a Trading Day or after 4:00 p.m. (New York City time) and before midnight (New York City time) on a Trading
Day).
“Commission”
means the United States Securities and Exchange Commission.
“Common
Stock” means the Class A common stock of the Company, par value $0.0001, 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
Counsel” means Hunter Taubman Fischer & Li LLC, with offices located at 950 Third Avenue, 19th Floor, New York, New
York 10022.
“Disclosure
Schedules” means the Disclosure Schedules of the Company delivered concurrently herewith.
“Disclosure
Time” means, (i) if this Agreement is signed on a day that is not a Trading Day or after 9:00 a.m. (New York City
time) and before midnight (New York City time) on any Trading Day, 9:01 a.m. (New York City time) on the Trading Day immediately
following the date hereof, unless otherwise instructed as to an earlier time by the Placement Agent, and (ii) if this Agreement
is signed between midnight (New York City time) and 9:00 a.m. (New York City time) on any Trading Day, no later than 9:01 a.m. (New
York City time) on the date hereof, unless otherwise instructed as to an earlier time by the Placement Agent.
“Evaluation
Date” shall have the meaning ascribed to such term in Section 3.1(s).
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exempt
Issuance” means the issuance of (a) shares of Common Stock or options to employees, consultants, officers or directors
of the Company pursuant to any stock or option plan duly adopted for such purpose, by a majority of the non-employee members of the Board
of Directors or a majority of the members of a committee of non-employee directors established for such purpose for services rendered
to the Company, provided, however that the aggregate number of shares issued to consultants during the prohibition period in Section 4.12(a) herein
shall be limited to 388,000; (b) securities upon the exercise or exchange of or conversion of any Securities issued hereunder and/or
other securities exercisable or exchangeable for or convertible into Common Stock issued and outstanding on the date of this Agreement,
provided that such securities have not been amended since the date of this Agreement to increase the number of such securities or to
decrease the exercise price, exchange price or conversion price of such securities (other than in connection with stock splits or combinations)
or to extend the term of such securities; and (c) securities issued pursuant to acquisitions or strategic transactions approved
by a majority of the disinterested directors of the Company, provided that such securities are issued as “restricted securities”
(as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection
therewith during the prohibition period in Section 4.12(a) herein, and provided that any such issuance shall only be to a
Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset
in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment
of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital
or to an entity whose primary business is investing in securities.
“FCPA”
means the Foreign Corrupt Practices Act of 1977, as amended.
“GAAP”
shall have the meaning ascribed to such term in Section 3.1(h).
“Indebtedness”
shall have the meaning ascribed to such term in Section 3.1(aa).
“Intellectual
Property Rights” shall have the meaning ascribed to such term in Section 3.1(p).
“Liens”
means a lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.
“Lock-Up
Agreement” means the Lock-Up Agreement, dated on or about the date hereof, by and among the Company and the directors, officers,
and 5% stockholders of the Company, in the form of Exhibit A attached hereto.
“Material
Adverse Effect” shall have the meaning assigned to such term in Section 3.1(b).
“Material
Permits” shall have the meaning ascribed to such term in Section 3.1(n).
“Participation
Maximum” shall have the meaning ascribed to such term in Section 4.11(a).
“Per Share
Purchase Price” equals $0.23, 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.
“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.
“Placement
Agent” means FT Global Capital, Inc.
“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 prospectus filed for the Registration Statement.
“Prospectus
Supplement” means the supplement to the Prospectus complying with Rule 424(b) of the Securities Act that is filed
with the Commission and delivered by the Company to each Purchaser at the Closing.
“Purchaser
Party” shall have the meaning ascribed to such term in Section 4.8.
“Registration
Statement” means the effective registration statement with Commission file No. 333-280743 which registers the
sale of the Shares to the Purchasers.
“Required
Approvals” shall have the meaning ascribed to such term in Section 3.1(e).
“Rule 144”
means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from
time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect
as such Rule.
“Rule 424”
means Rule 424 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from
time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect
as such Rule.
“SEC Reports”
shall have the meaning ascribed to such term in Section 3.1(h).
“Securities”
means the Shares.
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Shares”
means shares of Common Stock issued or issuable to each Purchaser pursuant to this Agreement.
“Short
Sales” means all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall
not be deemed to include locating and/or borrowing shares of Common Stock).
“Subscription
Amount” means, as to each Purchaser, the aggregate amount to be paid for Shares purchased hereunder as specified below such
Purchaser’s name on the signature page of this Agreement and next to the heading “Subscription Amount,” in United
States dollars and in immediately available funds.
“Subsequent
Financing” shall have the meaning ascribed to such term in Section 4.12(a).
“Subsequent
Financing Notice” shall have the meaning ascribed to such term in Section 4.12(b).
“Subsidiary”
means any subsidiary of the Company as set forth on Schedule 3.1(a), 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, and the New York
Stock Exchange (or any successors to any of the foregoing).
“Transaction
Documents” means this Agreement, the Lock-Up Agreement, all exhibits and schedules thereto and hereto and any other documents
or agreements executed in connection with the transactions contemplated hereunder.
“Transfer
Agent” means VStock Transfer, LLC, the current transfer agent of the Company, with a mailing address of 18 Lafayette Place,
Woodmere, New York 11598 and an email address of compliance@vstocktransfer.com, and any successor transfer agent of the Company.
“Variable
Rate Transaction” shall have the meaning ascribed to such term in Section 4.12(b).
ARTICLE II.
PURCHASE AND SALE
2.1 Closing.
On the Closing Date, upon the terms and subject to the conditions set forth herein, substantially concurrent with the execution and delivery
of this Agreement by the parties hereto, the Company agrees to sell, and the Purchasers, severally and not jointly, agree to purchase,
up to an aggregate of $1,490,332.49 of Shares. On the Closing Date, (i) each Purchaser shall pay its respective Subscription Amount
to the Company as set forth on the signature page hereto executed by such Purchaser for the Shares to be issued and sold to such
Purchaser at Closing, by wire transfer of immediately available funds in accordance with the Company’s written wire instructions
set forth in Section 2.2(iii), and (ii) the Company shall (A) cause the Transfer Agent via The Depository Trust Company
Deposit or Withdrawal at Custodian system (“DWAC”) to deliver Shares equal to such Purchaser’s Subscription Amount
divided by the Per Share Purchase Price, and (B) deliver to each such Purchaser the other items set forth in Section 2.2
deliverable at the Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the Closing shall occur
at the offices of Placement Agent counsel or such other location as the parties shall mutually agree.
2.2 Deliveries.
(a) On
or prior to the Closing Date, the Company shall deliver or cause to be delivered to each Purchaser the following:
(i) this
Agreement duly executed by the Company;
(ii) a
legal opinion of Company Counsel, in form and substance reasonably satisfactory to the Placement Agent and the Purchasers addressed to
the Placement Agent and the Purchasers;
(iii) the
Company shall have provided each Purchaser with the Company’s wire instructions, on Company letterhead and executed by the Chief
Executive Officer or Chief Financial Officer;
(iv) a
copy of the irrevocable instructions to the Transfer Agent instructing the Transfer Agent to deliver on an expedited basis via The Depository
Trust Company Deposit or Withdrawal at Custodian system (“DWAC”) Shares equal to such Purchaser’s Subscription
Amount divided by the Per Share Purchase Price, registered in the name of such Purchaser;
(v) the
Prospectus and Prospectus Supplement (which may be delivered in accordance with Rule 172 under the Securities Act).
(b) On
or prior to the Closing Date, each Purchaser shall deliver or cause to be delivered to the Company the following:
(i) this
Agreement duly executed by such Purchaser; and
(ii) such
Purchaser’s Subscription Amount.
2.3 Closing
Conditions.
(a) The
obligations of the Company hereunder in connection with the Closing are subject to the following conditions being met:
(i) the
accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect,
in all respects) on the Closing Date of the representations and warranties of the Purchasers contained herein (unless as of a specific
date therein in which case they shall be accurate as of such date);
(ii) all
obligations, covenants and agreements of each Purchaser required to be performed at or prior to the Closing Date shall have been performed;
and
(iii) the
delivery by each Purchaser of the items set forth in Section 2.2(b) of this Agreement.
(b) The
respective obligations of each Purchaser hereunder in connection with the Closing are subject to the following conditions being met:
(i) the
accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect,
in all respects) when made and on the Closing Date of the representations and warranties of the Company contained herein (unless as of
a specific date therein in which case they shall be accurate as of such date);
(ii) all
obligations, covenants and agreements of the Company required to be performed at or prior to the Closing Date shall have been performed;
(iii) the
delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(iv) the
Registration Statement shall be effective and available for the issuance and sale of the Securities hereunder and the Company shall have
delivered to such Purchaser the Prospectus and the Prospectus Supplement as required thereunder;
(v) there
shall have been no Material Adverse Effect with respect to the Company since the date hereof; and
(vi) from
the date hereof to the Closing Date, trading in the Common Stock shall not have been suspended by the Commission or the Company’s
principal Trading Market, and, at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg L.P. shall
not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such
service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities
nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such
magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of
such Purchaser, makes it impracticable or inadvisable to purchase the Securities at the Closing.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
3.1 Representations
and Warranties of the Company. Except as set forth in the SEC Reports and the Disclosure Schedules, which Disclosure Schedules shall
be deemed a part hereof and shall qualify any representation made herein to the extent of the disclosure contained in the corresponding
section of the Disclosure Schedules, the Company hereby makes the following representations and warranties to each Purchaser:
(a) Subsidiaries. All
of the direct and indirect subsidiaries of the Company (each, a “Subsidiary”, and collectively, the “Subsidiaries”)
are as set forth on Schedule 3.1(a). 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 or equity interests, as applicable,
of each Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive rights. There are no outstanding options,
warrants, scrips or 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 capital stock or
equity interests, as applicable, of any Subsidiary, or contracts, commitments, understandings or arrangements by which any Subsidiary
is or may become bound to issue capital stock or equity interests, as applicable. If the Company has no Subsidiaries, all other references
to the Subsidiaries or any of them in the Transaction Documents shall be disregarded.
(b) Organization
and Qualification. The Company and each of the Subsidiaries is an entity duly incorporated or otherwise organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite power and authority
to own and use its properties and assets and to carry on its business as currently conducted. Neither the Company nor any Subsidiary
is in violation nor default of any of the provisions of its respective certificate or articles of incorporation, bylaws or other organizational
or charter documents. Each of the Company and the Subsidiaries is duly qualified to conduct business and is in good standing as a foreign
corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification
necessary, except where the failure to be so qualified or in good standing, as the case may be, could not have or reasonably be expected
to result in: (i) a material adverse effect on the legality, validity or enforceability of any Transaction Document, (ii) a
material adverse effect on the results of operations, assets, business, or condition (financial or otherwise) of the Company and the
Subsidiaries, taken as a whole, or (iii) a material adverse effect on the Company’s ability to perform in any material respect
on a timely basis its obligations under any Transaction Document (any of (i), (ii) or (iii), a “Material Adverse Effect”)
and no Proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail
such power and authority or qualification.
(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 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 it is a party has been (or
upon delivery will have been) duly executed by the Company and, when delivered in accordance with the terms hereof and thereof, will
constitute the valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except (i) as
limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application
affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by
applicable law.
(d) No
Conflicts. The execution, delivery and performance by the Company of this Agreement and the other Transaction Documents to which
it is a party, the issuance and sale of the Securities and the consummation by it of the transactions contemplated hereby and thereby
do not and will not (i) conflict with or violate any provision of the Company’s or any Subsidiary’s certificate or
articles of incorporation, bylaws or other organizational or charter documents, or (ii) conflict with, or constitute a default
(or an event that with notice or lapse of time or both would become a default) under, result in the creation of any Lien upon any of
the properties or assets of the Company or any Subsidiary, or give to others any rights of termination, amendment, anti-dilution or similar
adjustments, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or
other instrument (evidencing a Company or Subsidiary debt or otherwise) or other understanding to which the Company or any Subsidiary
is a party or by which any property or asset of the Company or any Subsidiary is bound or affected, or (iii) subject to the Required
Approvals, conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction
of any court or governmental authority to which the Company or a Subsidiary is subject (including federal and state securities laws and
regulations), or by which any property or asset of the Company or a Subsidiary is bound or affected; except in the case of each of clauses
(ii) and (iii), such as could not have or reasonably be expected to result in a Material Adverse Effect.
(e) Filings,
Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of, give any notice to,
or make any filing or registration with, any court or other federal, state, local or other governmental authority or other Person in
connection with the execution, delivery and performance by the Company of the Transaction Documents, other than: (i) the filings
required pursuant to Section 4.4 of this Agreement, (ii) the filing with the Commission of the Prospectus Supplement, (iii) application(s) to
the Trading Market for the listing of the Securities for trading thereon in the time and manner required thereby, (iv) approval
of the Board of Directors of the terms and conditions of this Agreement and the transactions contemplated herein; and (v) such
filings as are required to be made under applicable state securities laws (collectively, the “Required Approvals”).
(f) Issuance
of the Securities; Registration. The Securities are duly authorized and, when issued and paid for in accordance with the applicable
Transaction Documents, will be duly and validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company.
The Company has reserved from its duly authorized capital stock the maximum number of shares of Common Stock issuable pursuant to this
Agreement. The Company has prepared and filed the Registration Statement in conformity with the requirements of the Securities Act, which
became effective on July 15, 2024 (the “Effective Date”), including the Prospectus, and such amendments and
supplements thereto as may have been required to the date of this Agreement. The Registration Statement is effective under the Securities
Act and no stop order preventing or suspending the effectiveness of the Registration Statement or suspending or preventing the use of
the Prospectus has been issued by the Commission and no proceedings for that purpose have been instituted or, to the knowledge of the
Company, are threatened by the Commission. The Company, if required by the rules and regulations of the Commission, shall file
the Prospectus Supplement with the Commission pursuant to Rule 424(b). At the time the Registration Statement and any amendments
thereto became effective, at the date of this Agreement and at the Closing Date, the Registration Statement and any amendments thereto
conformed and will conform in all material respects to the requirements of the Securities Act and did not and will not contain any untrue
statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein
not misleading; and the Prospectus, Prospectus Supplement and any amendments or supplements thereto, at the time the Prospectus, Prospectus
Supplement or any amendment or supplement thereto was issued and at the Closing Date, conformed and will conform in all material respects
to the requirements of the Securities Act and did not and will not contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(g) Capitalization.
The capitalization of the Company as of the date hereof is as set forth on Schedule 3.1(g), which Schedule 3.1(g) shall
also include the number of shares of Common Stock owned beneficially, and of record, by Affiliates of the Company as of the date hereof.
The Company has not issued any capital stock since its most recently filed Form 10-K, other than (i) pursuant to the exercise
of employee stock options under the Company’s stock option plans, (ii) pursuant to the issuance of Common Stock to employees
pursuant to the Company’s employee stock purchase plans disclosed Schedule 3.1(g), (iii) pursuant to the conversion and/or
exercise of Common Stock Equivalents outstanding as of the date of the most recently filed Form 10-K, and (iv) in connection
with the public offering of 13,210,000 shares of Common Stock which closed on May 15, 2024. 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 set forth on Schedule 3.1(g) and except as a result of the purchase and sale of the Securities, there are no outstanding
options, warrants, scrip rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities, rights
or obligations convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire, any 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 Common Stock or Common Stock Equivalents or capital stock of any Subsidiary. The issuance
and sale of the Securities will not obligate the Company or any Subsidiary to issue Common Stock or other securities to any Person (other
than the Purchasers). 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.
No further approval or authorization of any stockholder, the Board of Directors, or others is required for the issuance and sale of the
Securities. Except as set forth on Schedule 3.1(g), 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.
(h) SEC
Reports; Financial Statements. The Company has filed all reports, schedules, forms, statements and other documents required to be
filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof,
for the two years preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such material)
(the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, together with the Prospectus
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 Company has never been an issuer subject to Rule 144(i) under the Securities Act.
The financial statements of the Company included in the SEC Reports comply in all material respects with applicable accounting requirements
and the rules and regulations of the Commission with respect thereto as in effect at the time of filing, or the amendments thereto.
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.
(i) Material
Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest audited financial statements included within
the SEC Reports, except as set forth on Schedule 3.1(i), (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 and (v) the Company has not issued any equity securities to any
officer, director or Affiliate, except pursuant to existing Company stock option plans. The Company does not have pending before the
Commission any request for confidential treatment of information. Except for the issuance of the Securities contemplated by this Agreement
or as set forth on Schedule 3.1(i), 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 Trading Day prior to the
date that this representation is made.
(j) Litigation.
Except as set forth on Schedule 3.1(j), 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”). None of the Actions set forth on Schedule 3.1(j) (i) adversely affects
or challenges the legality, validity or enforceability of any of the Transaction Documents or the Securities or (ii) could, if
there were an unfavorable decision, have or reasonably be expected to result in a Material Adverse Effect. Neither the Company nor any
Subsidiary, nor any director or officer thereof, is or has been the subject of any Action involving a claim of violation of or liability
under federal or state securities laws or a claim of breach of fiduciary duty. There has not been, and to the knowledge of the Company,
there is not pending or contemplated or threatened, 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.
(k) 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.
(l) 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.
(m) 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.
(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 (“Material
Permits”), and neither the Company nor any Subsidiary has received any notice of proceedings relating to the revocation or
modification of any Material Permit.
(o) Title
to Assets. The Company and the Subsidiaries have good and marketable title in fee simple to all real property owned by them and good
and marketable title in all personal property owned by them that is material to the business of the Company and the Subsidiaries, in
each case free and clear of all Liens, except for (i) Liens as do not materially affect the value of such property and do not materially
interfere with the use made and proposed to be made of such property by the Company and the Subsidiaries and (ii) Liens for the
payment of federal, state or other taxes, for which appropriate reserves have been made therefor in accordance with GAAP and, the payment
of which is neither delinquent nor subject to penalties. Any real property and facilities held under lease by the Company and the Subsidiaries
are held by them under valid, subsisting and enforceable leases with which the Company and the Subsidiaries are in compliance.
(p) Intellectual
Property. The Company and the Subsidiaries have, 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
so have 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, except as could not have or reasonably be expected to not have a Material Adverse Effect. 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 of $5 million. 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. 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. The Company and the Subsidiaries maintain
a system of internal accounting controls sufficient to provide reasonable assurance that: (i) transactions are executed in accordance
with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with GAAP and to maintain asset accountability, (iii) access to assets is permitted only in
accordance with management’s general or specific authorization, and (iv) the recorded accountability for assets is compared
with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Company and the
Subsidiaries have established disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e))
for the Company and the Subsidiaries and designed such disclosure controls and procedures to ensure that information required to be disclosed
by the Company in the reports it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the
time periods specified in the Commission’s rules and forms. The Company’s certifying officers have evaluated the effectiveness
of the disclosure controls and procedures of the Company and the Subsidiaries as of the end of the period covered by the most recently
filed periodic report under the Exchange Act (such date, the “Evaluation Date”). The Company presented in its most
recently filed periodic report under the Exchange Act the conclusions of the certifying officers about the effectiveness of the disclosure
controls and procedures based on their evaluations as of the Evaluation Date. Since the Evaluation Date, there have been no changes in
the internal control over financial 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 Supplement, no brokerage or finder’s fees or commissions are or will be payable
by the Company or any Subsidiary 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. The Purchasers shall have no obligation with
respect to any fees or with respect to any claims made by or on behalf of other Persons for fees of a type contemplated in this Section that
may be due in connection with the transactions contemplated by the Transaction Documents.
(u) Investment
Company. The Company is not, and is not an Affiliate of, and immediately after receipt of payment for the Securities, will not be
or be an Affiliate of, an “investment company” within the meaning of the Investment Company Act of 1940, as amended. The
Company shall conduct its business in a manner so that it will not become an “investment company” subject to registration
under the Investment Company Act of 1940, as amended.
(v) Registration
Rights. No Person has any right to cause the Company or any Subsidiary to effect the registration under the Securities Act of any
securities of the Company or any Subsidiary.
(w) Listing
and Maintenance Requirements. The Common Stock is registered pursuant to Section 12(b) of the Exchange Act, and the Company
has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration of the Common
Stock under the Exchange Act, nor has the Company received any notification that the Commission is contemplating terminating such registration.
The Company has not, except as discussed below, 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. On July 11, 2024, the Company received a letter from the Listing Qualifications Department
of The Nasdaq Stock Market LLC, notifying the Company that, for the last 30 consecutive business days, the closing bid price for the
Common Stock was below $1.00 per share, which is the minimum closing bid price required for continued listing on The Nasdaq Capital Market
pursuant to Nasdaq Listing Rule 5550(a)(2). The letter also specifies that the Company is provided a compliance period of 180 calendar
days (under certain circumstances, an additional 180 calendar days period may be provided) to regain compliance with the minimum closing
bid price requirement. If the Company fails to regain compliance during the specified compliance period(s), the Common Stock will be
subject to delisting. 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 to 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 articles of incorporation (or similar charter documents) or the laws of its state of
incorporation that is or could become applicable to the Purchasers as a result of the Purchasers and the Company fulfilling their obligations
or exercising their rights under the Transaction Documents, including without limitation as a result of the Company’s issuance
of the Securities and the Purchasers’ ownership of the Securities.
(y) Disclosure.
Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents, the Company confirms
that neither it nor any other Person acting on its behalf has provided any of the Purchasers or their agents or counsel with any information
that it believes constitutes or might constitute material, non-public information which is not otherwise disclosed in the Prospectus
Supplement. The Company understands and confirms that the Purchasers will rely on the foregoing representation in effecting transactions
in securities of the Company. All of the disclosure furnished by or on behalf of the Company to the Purchasers regarding the Company
and its Subsidiaries, their respective businesses and the transactions contemplated hereby, including the Disclosure Schedules to this
Agreement, is true and correct and does not contain any untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. 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 the light of the circumstances under which they were made and when made, not misleading. The Company acknowledges
and agrees that no Purchaser makes or has made any representations or warranties with respect to the transactions contemplated hereby
other than those specifically set forth in Section 3.2 hereof.
(z) No
Integrated Offering. Assuming the accuracy of the Purchasers’ representations and warranties set forth in Section 3.2,
neither the Company, nor any of its Affiliates, nor any Person acting on its or their behalf has, directly or indirectly, made any offers
or sales of any security or solicited any offers to buy any security, under circumstances that would cause this offering of the Securities
to be integrated with prior offerings by the Company for purposes of any applicable shareholder approval provisions of any Trading Market
on which any of the securities of the Company are listed or designated.
(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 Securities hereunder, (i) the fair saleable value of the Company’s assets exceeds the
amount that will be required to be paid on or in respect of the Company’s existing debts and other liabilities (including known
contingent liabilities) as they mature, (ii) the Company’s assets do not constitute unreasonably small capital to carry on
its business as now conducted and as proposed to be conducted including its capital needs taking into account the particular capital
requirements of the business conducted by the Company, consolidated and projected capital requirements and capital availability thereof,
and (iii) the current cash flow of the Company, together with the proceeds the Company would receive, were it to liquidate all
of its assets, after taking into account all anticipated uses of the cash, would be sufficient to pay all amounts on or in respect of
its liabilities when such amounts are required to be paid. The Company does not intend to incur debts beyond its ability to pay such
debts as they mature (taking into account the timing and amounts of cash to be payable on or in respect of its debt). The Company has
no knowledge of any facts or circumstances which lead it to believe that it will file for reorganization or liquidation under the bankruptcy
or reorganization laws of any jurisdiction within one year from the Closing Date. The SEC Reports set forth as of the date hereof all
outstanding secured and unsecured Indebtedness of the Company or any Subsidiary, or for which the Company or any Subsidiary has commitments.
For the purposes of this Agreement, “Indebtedness” means (x) 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), (y) 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 (z) the present value of any lease payments in excess of $50,000
due under leases required to be capitalized in accordance with GAAP. 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.
(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.
(dd) Accountants.
The Company’s accounting firm is set forth on Schedule 3.1(dd) of the Disclosure Schedules. To the knowledge and belief
of the Company, such accounting firm (i) is a 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, 2024.
(ee) Acknowledgment
Regarding Purchasers’ Purchase of Securities. The Company acknowledges and agrees that each of the Purchasers is acting solely
in the capacity of an arm’s length purchaser with respect to the Transaction Documents and the transactions contemplated thereby.
The Company further acknowledges that no Purchaser is acting as a financial advisor or fiduciary of the Company (or in any similar capacity)
with respect to the Transaction Documents and the transactions contemplated thereby and any advice given by any Purchaser or any of their
respective representatives or agents in connection with the Transaction Documents and the transactions contemplated thereby is merely
incidental to the Purchasers’ purchase of the Securities. The Company further represents to each Purchaser that the Company’s
decision to enter into this Agreement and the other Transaction Documents has been based solely on the independent evaluation of the
transactions contemplated hereby by the Company and its representatives.
(ff) Acknowledgment
Regarding Purchaser’s Trading Activity. Anything in this Agreement or elsewhere herein to the contrary notwithstanding (except
for Sections 3.2(f) and 4.14 hereof), it is understood and acknowledged by the Company that: (i) none of the Purchasers has
been asked by the Company to agree, nor has any Purchaser agreed, to desist from purchasing or selling, long and/or short, securities
of the Company, or “derivative” securities based on securities issued by the Company or to hold the Securities for any specified
term; (ii) past or future open market or other transactions by any Purchaser, specifically including, without limitation, Short
Sales or “derivative” transactions, before or after the closing of this or future private placement transactions, may negatively
impact the market price of the Company’s publicly-traded securities; (iii) any Purchaser, and counter-parties in “derivative”
transactions to which any such Purchaser is a party, directly or indirectly, presently may have a “short” position in the
Common Stock, and (iv) each Purchaser shall not be deemed to have any affiliation with or control over any arm’s length counter-party
in any “derivative” transaction. The Company further understands and acknowledges that (y) one or more Purchasers may
engage in hedging activities at various times during the period that the Securities are outstanding, and (z) such hedging activities
(if any) could reduce the value of the existing stockholders’ equity interests in the Company at and after the time that the hedging
activities are being conducted. The Company acknowledges that such aforementioned hedging activities do not constitute a breach of any
of the Transaction Documents.
(gg) Regulation
M Compliance. The Company has not, and to its knowledge no one acting on its behalf has, (i) taken, directly or indirectly,
any action designed to cause or to result in the stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of any of the Securities, (ii) sold, bid for, purchased, or, paid any compensation for soliciting purchases
of, any of the Securities, or (iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase any
other securities of the Company, other than, in the case of clauses (ii) and (iii), compensation paid to the Company’s placement
agent in connection with the placement of the Securities.
(hh) Cybersecurity.
(i)(x) 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.
(ii) Compliance
with Data Privacy Laws. (i) The Company and the Subsidiaries are, and at all times during the last three (3) years were,
in compliance with all applicable state, federal and foreign data privacy and security laws and regulations, including, without
limitation, the European Union General Data Protection Regulation (“GDPR”) (EU 2016/679) (collectively, “Privacy
Laws”); (ii) the Company and the Subsidiaries have in place, comply with, and take appropriate steps reasonably designed
to ensure compliance with their policies and procedures relating to data privacy and security and the collection, storage, use, disclosure,
handling and analysis of Personal Data (as defined below) (the “Policies”); (iii) the Company provides accurate
notice of its applicable Policies to its customers, employees, third party vendors and representatives as required by the Privacy Laws;
and (iv) applicable Policies provide accurate and sufficient notice of the Company’s then-current privacy practices relating
to its subject matter, and do not contain any material omissions of the Company’s then-current privacy practices, as required by
Privacy Laws. “Personal Data” means (i) a natural person’s name, street address, telephone number,
email address, photograph, social security number, bank information, or customer or account number; (ii) any information which
would qualify as “personally identifying information” under the Federal Trade Commission Act, as amended; (iii) “personal
data” as defined by GDPR; and (iv) any other piece of information that allows the identification of such natural person,
or his or her family, or permits the collection or analysis of any identifiable data related to an identified person’s health or
sexual orientation. (i) None of such disclosures made or contained in any of the Policies have been inaccurate, misleading, or
deceptive in violation of any Privacy Laws and (ii) the execution, delivery and performance of the Transaction Documents will not
result in a breach of any Privacy Laws or Policies. Neither the Company nor the Subsidiaries (i) to the knowledge of the
Company, has received written notice of any actual or potential liability of the Company or the Subsidiaries under, or actual or potential
violation by the Company or the Subsidiaries of, any of the Privacy Laws; (ii) is currently conducting or paying for, in whole
or in part, any investigation, remediation or other corrective action pursuant to any regulatory request or demand pursuant to any Privacy
Law; or (iii) is a party to any order, decree, or agreement by or with any court or arbitrator or governmental or regulatory authority
that imposed any obligation or liability under any Privacy Law.
(jj) Stock
Equity Plans. Each stock option or equity award granted by the Company under the Company’s equity award plans was granted (i) in
accordance with the terms of the Company’s stockholder approved equity award plan(s) and (ii) with an exercise price
at least equal to the fair market value of the Common Stock on the date such option or equity award would be considered granted under
GAAP and applicable law. No stock option or equity award granted under the Company’s or equity award plan(s) has been backdated.
The Company has not knowingly granted, and there is no and has been no Company policy or practice to knowingly grant, options prior to,
or otherwise knowingly coordinate the grant of stock options with, the release or other public announcement of material information regarding
the Company or its Subsidiaries or their financial results or prospects.
(kk) 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 (“OFAC”).
(ll) 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 Purchaser’s request.
(mm) 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 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.
(nn) 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.
(oo) Smaller
Reporting Company. The Company is a “smaller reporting company,” as defined in Rule 12b-2 of the Exchange Act Regulations.
3.2 Representations
and Warranties of the Purchasers. Each Purchaser, for itself and for no other Purchaser, hereby represents and warrants as of the
date hereof and as of the Closing Date to the Company as follows (unless as of a specific date therein, in which case they shall be accurate
as of such date):
(a) Organization;
Authority. Such Purchaser is either an individual or an entity duly incorporated or formed, validly existing and in good standing
under the laws of the jurisdiction of its incorporation or formation with full right, corporate, partnership, limited liability company
or similar power and authority to enter into and to consummate the transactions contemplated by the Transaction Documents and otherwise
to carry out its obligations hereunder and thereunder. The execution and delivery of the Transaction Documents and performance by such
Purchaser of the transactions contemplated by the Transaction Documents have been duly authorized by all necessary corporate, partnership,
limited liability company or similar action, as applicable, on the part of such Purchaser. Each Transaction Document to which it is a
party has been duly executed by such Purchaser, and when delivered by such Purchaser in accordance with the terms hereof, will constitute
the valid and legally binding obligation of such Purchaser, enforceable against it 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.
(b) Understandings
or Arrangements. Such Purchaser is acquiring the Securities as principal for its own account and has no direct or indirect arrangement
or understandings with any other persons to distribute or regarding the distribution of such Securities (this representation and warranty
not limiting such Purchaser’s right to sell the Securities pursuant to the Registration Statement or otherwise in compliance with
applicable federal and state securities laws). Such Purchaser is acquiring the Securities hereunder in the ordinary course of its business.
(c) Purchaser
Status. At the time such Purchaser was offered the Securities, it was, and as of the date hereof it is, an “accredited investor”
as defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) under the Securities Act.
(d) Experience
of Such Purchaser. Such Purchaser, either alone or together with its representatives, has such knowledge, sophistication and experience
in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in the Securities,
and has so evaluated the merits and risks of such investment. Such Purchaser is able to bear the economic risk of an investment in the
Securities and, at the present time, is able to afford a complete loss of such investment.
(e) Access
to Information. Such Purchaser acknowledges that it has had the opportunity to review the Transaction Documents (including all exhibits
and schedules thereto) and the SEC Reports and has been afforded, (i) the opportunity to ask such questions as it has deemed necessary
of, and to receive answers from, representatives of the Company concerning the terms and conditions of the offering of the Securities
and the merits and risks of investing in the Securities; (ii) access to information about the Company and its financial condition,
results of operations, business, properties, management and prospects sufficient to enable it to evaluate its investment; and (iii) the
opportunity to obtain such additional information that the Company possesses or can acquire without unreasonable effort or expense that
is necessary to make an informed investment decision with respect to the investment. Such Purchaser acknowledges and agrees that neither
the Placement Agent nor any Affiliate of the Placement Agent has provided such Purchaser with any information or advice with respect
to the Securities nor is such information or advice necessary or desired. Neither the Placement Agent nor any Affiliate has made or makes
any representation as to the Company or the quality of the Securities and the Placement Agent and any Affiliate may have acquired non-public
information with respect to the Company which such Purchaser agrees need not be provided to it. In connection with the issuance of the
Securities to such Purchaser, neither the Placement Agent nor any of its Affiliates has acted as a financial advisor or fiduciary to
such Purchaser.
(f) Certain
Transactions and Confidentiality. Other than consummating the transactions contemplated hereunder, such Purchaser has not, nor has
any Person acting on behalf of or pursuant to any understanding with such Purchaser, directly or indirectly executed any purchases or
sales, including Short Sales, of the securities of the Company during the period commencing as of the time that such Purchaser first
received a term sheet (written or oral) from the Company or any other Person representing the Company setting forth the material terms
of the transactions contemplated hereunder and ending immediately prior to the execution hereof. Notwithstanding the foregoing, in the
case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s
assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other
portions of such Purchaser’s assets, the representation set forth above shall only apply with respect to the portion of assets
managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement. Other than to
other Persons party to this Agreement or to such Purchaser’s representatives, including, without limitation, its officers, directors,
partners, legal and other advisors, employees, agents and Affiliates, such Purchaser has maintained the confidentiality of all disclosures
made to it in connection with this transaction (including the existence and terms of this transaction). Notwithstanding the foregoing,
for the avoidance of doubt, nothing contained herein shall constitute a representation or warranty, or preclude any actions, with respect
to locating or borrowing shares in order to effect Short Sales or similar transactions in the future.
The
Company acknowledges and agrees that the representations contained in this Section 3.2 shall not modify, amend or affect
such Purchaser’s right to rely on the Company’s representations and warranties contained in this Agreement or any representations
and warranties contained in any other Transaction Document or any other document or instrument executed and/or delivered in connection
with this Agreement or the consummation of the transactions contemplated hereby. Notwithstanding the foregoing, for the avoidance of
doubt, nothing contained herein shall constitute a representation or warranty, or preclude any actions, with respect to locating or borrowing
shares in order to effect Short Sales or similar transactions in the future.
ARTICLE IV.
OTHER AGREEMENTS OF THE PARTIES
4.1 Reserved.
4.2 Furnishing
of Information. Until the earliest of the time that no Purchaser owns Securities, the Company covenants to timely file (or obtain
extensions in respect thereof and file within the applicable grace period) all reports required to be filed by the Company after the
date hereof pursuant to the Exchange Act even if the Company is not then subject to the reporting requirements of the Exchange Act.
4.3 Integration.
The Company shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in
Section 2 of the Securities Act) that would be integrated with the offer or sale of the Securities for purposes of the rules and
regulations of any Trading Market such that it would require shareholder approval prior to the closing of such other transaction unless
shareholder approval is obtained before the closing of such subsequent transaction.
4.4 Securities
Laws Disclosure; Publicity. The Company shall (a) by the Disclosure Time, issue a press release disclosing the material terms
of the transactions contemplated hereby, and (b) file a Current Report on Form 8-K, including the Transaction Documents as
exhibits thereto, with the Commission within the time required by the Exchange Act. From and after the issuance of such press release,
the Company represents to the Purchasers that it shall have publicly disclosed all material, non-public information delivered to any
of the Purchasers by the Company or any of its Subsidiaries, or any of their respective officers, directors, employees or agents in connection
with the transactions contemplated by the Transaction Documents. In addition, effective upon the issuance of such press release, the
Company acknowledges and agrees that any and all confidentiality or similar obligations under any agreement, whether written or oral,
between the Company, any of its Subsidiaries or any of their respective officers, directors, agents, employees or Affiliates on the one
hand, and any of the Purchasers or any of their Affiliates on the other hand, shall terminate. The Company understands and confirms that
each Purchaser shall be relying on the foregoing covenant in effecting transactions in securities of the Company. The Company and each
Purchaser shall consult with each other in issuing any other press releases with respect to the transactions contemplated hereby, and
neither the Company nor any Purchaser 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 any Purchaser, or without the prior consent of each Purchaser, 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.
Notwithstanding the foregoing, the Company shall not publicly disclose the name of any Purchaser, or include the name of any Purchaser
in any filing with the Commission or any regulatory agency or Trading Market, without the prior written consent of such Purchaser, except
to the extent such disclosure is required by law or Trading Market regulations, in which case the Company shall provide the Purchasers
with prior notice of such disclosure permitted pursuant to this sentence.
4.5 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 Purchaser
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 Purchaser
could be deemed to trigger the provisions of any such plan or arrangement, by virtue of receiving Securities under the Transaction Documents
or under any other agreement between the Company and the Purchasers.
4.6 Non-Public
Information. Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents,
which shall be disclosed pursuant to Section 4.4, the Company covenants and agrees that neither it, nor any other Person acting
on its behalf will provide any Purchaser or its agents or counsel with any information that constitutes, or the Company reasonably believes
constitutes, material non-public information, unless prior thereto such Purchaser shall have consented to the receipt of such information
and agreed with the Company to keep such information confidential. The Company understands and confirms that each Purchaser shall be
relying on the foregoing covenant in effecting transactions in securities of the Company. To the extent that the Company, any of its
Subsidiaries, or any of their respective officers, directors, agents, employees or Affiliates delivers any material, non-public information
to a Purchaser without such Purchaser’s consent, the Company hereby covenants and agrees that such Purchaser shall not have any
duty of confidentiality to the Company, any of its Subsidiaries, or any of their respective officers, directors, agents, employees or
Affiliates, or a duty to the Company, any of its Subsidiaries or any of their respective officers, directors, agents, employees or Affiliates
not to trade on the basis of, such material, non-public information, provided that the Purchaser shall remain subject to applicable law.
To the extent that any notice provided pursuant to any Transaction Document constitutes, or contains, material, non-public information
regarding the Company or any Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Current
Report on Form 8-K. The Company understands and confirms that each Purchaser shall be relying on the foregoing covenant in effecting
transactions in securities of the Company.
4.7 Use
of Proceeds. The Company shall use the net proceeds from the sale of the Securities hereunder for working capital purposes and shall
not use such proceeds: (a) for the satisfaction of any portion of the Company’s debt (other than payment of trade payables
in the ordinary course of the Company’s business and prior practices), (b) for the redemption of any Common Stock or Common
Stock Equivalents, (c) for the settlement of any outstanding litigation or (d) in violation of FCPA or OFAC regulations.
4.8 Indemnification
of Purchasers. The Company will indemnify and hold each Purchaser and its directors, officers, shareholders, members, partners, employees
and agents (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such
title or any other title), each Person who controls such Purchaser (within the meaning of Section 15 of the Securities Act and
Section 20 of the Exchange Act), and the directors, officers, shareholders, agents, members, partners or employees (and any other
Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title)
of such controlling persons (each, a “Purchaser Party”) harmless from any and all losses, liabilities, obligations,
claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable
attorneys’ fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any
breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction
Documents or (b) any action instituted against the Purchaser Parties in any capacity (including a Purchaser Party’s status
as an investor), or any of them or their respective Affiliates, by the Company or any stockholder of the Company who is not an Affiliate
of such Purchaser Party, arising out of or relating to any of the transactions contemplated by the Transaction Documents. For the avoidance
of doubt, the indemnification provided herein is intended to, and shall also cover, direct claims brought by the Company against the
Purchaser Parties; provided, however, that such indemnification shall not cover any loss, claim, damage or liability to the extent it
is finally judicially determined to be attributable to any Purchaser Party’s breach of any of the representations, warranties,
covenants or agreements made by such Purchaser Party in any Transaction Document or any conduct by a Purchaser Party which is finally
judicially determined to constitute fraud, gross negligence or willful misconduct. If any action shall be brought against any Purchaser
Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company
in writing, and, except with respect to direct claims brought by the Company, the Company shall have the right to assume the defense
thereof with counsel of its own choosing reasonably acceptable to the Purchaser Party. Any Purchaser Party shall have the right to employ
separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the
expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company
in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in
such action there is, in the reasonable opinion of counsel to the applicable Purchaser Party (which may be internal counsel), a material
conflict on any material issue between the position of the Company and the position of such Purchaser Party, in which case the Company
shall be responsible for the reasonable fees and expenses of no more than one such separate counsel. The Company will not be liable to
any Purchaser Party under this Agreement for any settlement by a Purchaser Party effected without the Company’s prior written consent,
which shall not be unreasonably withheld or delayed. In addition, if any Purchaser Party takes actions to collect amounts due under any
Transaction Documents or to enforce the provisions of any Transaction Documents, then the Company shall pay the costs incurred by such
Purchaser Party for such collection, enforcement or action, including, but not limited to, attorneys’ fees and disbursements. The
indemnification and other payment obligations required by this Section 4.8 shall be made by periodic payments of the amount thereof
during the course of the investigation, defense, collection, enforcement or action, as and when bills are received or are incurred; provided,
that if any Purchaser Party is finally judicially determined not to be entitled to indemnification or payment under this Section 4.8
such Purchaser Party shall promptly reimburse the Company for any payments that are advanced under this sentence. The indemnity agreements
contained herein shall be in addition to any cause of action or similar right of any Purchaser Party against the Company or others and
any liabilities the Company may be subject to pursuant to law.
4.9 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
Shares pursuant to this Agreement.
4.10 Participation
in Future Financing.
(a) From
the date hereof until the date that is the four (4) month anniversary of the Closing Date, upon any issuance by the Company
or any of its Subsidiaries of Common Stock or Common Stock Equivalents for cash consideration, Indebtedness or a combination of
units thereof (a “Subsequent Financing”), each Purchaser shall have the right to participate in, the aggregate amount
of which shall be up to an amount of the Subsequent Financing equal to 30% of the Subsequent Financing (the “Participation Maximum”)
on the same terms, conditions and price provided for in the Subsequent Financing.
(b) Between
the time period of 4:00 pm (New York City time) and 6:00 pm (New York City time) on the Trading Day immediately prior to the Trading
Day of the expected announcement of the Subsequent Financing (or, if the Trading Day of the expected announcement of the Subsequent Financing
is the first Trading Day following a holiday or a weekend (including a holiday weekend), between the time period of 4:00 pm (New York
City time) on the Trading Day immediately prior to such holiday or weekend and 2:00 pm (New York City time) on the day immediately prior
to the Trading Day of the expected announcement of the Subsequent Financing), the Company shall deliver to each Purchaser a written notice
of the Company’s intention to effect a Subsequent Financing (a “Subsequent Financing Notice”), which notice
shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder
and the Person or Persons through or with whom such Subsequent Financing is proposed to be effected and shall include a term sheet and
transaction documents relating thereto as an attachment.
(c) Any
Purchaser desiring to participate in such Subsequent Financing must provide written notice to the Company by 6:30 am (New York City time)
on the Trading Day following the date on which the Subsequent Financing Notice is delivered to such Purchaser (the “Notice Termination
Time”) that such Purchaser is willing to participate in the Subsequent Financing, the amount of such Purchaser’s participation,
and representing and warranting that such Purchaser has such funds ready, willing, and available for investment on the terms set forth
in the Subsequent Financing Notice. If the Company receives no such notice from a Purchaser as of such Notice Termination Time, such
Purchaser shall be deemed to have notified the Company that it does not elect to participate in such Subsequent Financing.
(d) If,
by the Notice Termination Time, notifications by the Purchasers of their willingness to participate in the Subsequent Financing (or to
cause their designees to participate) is, in the aggregate, less than the total amount of the Subsequent Financing, then the Company
may effect the remaining portion of such Subsequent Financing on the terms and with the Persons set forth in the Subsequent Financing
Notice.
(e) If,
by the Notice Termination Time, the Company receives responses to a Subsequent Financing Notice from Purchasers seeking to purchase more
than the Participation Maximum, each such Purchaser shall have the right to purchase its Pro Rata Portion (as defined below) of the Participation
Maximum. “Pro Rata Portion” means the ratio of (x) the Subscription Amount of Securities purchased on
the Closing Date by a Purchaser participating under this Section 4.10 and (y) the sum of the aggregate Subscription Amounts
of Securities purchased on the Closing Date by all Purchasers participating under this Section 4.10.
(f) The
Company must provide the Purchasers with a second Subsequent Financing Notice, and the Purchasers will again have the right of participation
set forth above in this Section 4.10, if the definitive agreement related to the initial Subsequent Financing Notice is
not entered into for any reason on the terms set forth in such Subsequent Financing Notice within two (2) Trading Days after the
date of delivery of the initial Subsequent Financing Notice.
(g) The
Company and each Purchaser agree that, if any Purchaser elects to participate in the Subsequent Financing, the transaction documents
related to the Subsequent Financing shall not include any term or provision that, directly or indirectly, will, or is intended to, exclude
one or more of the Purchasers from participating in a Subsequent Financing, including, but not limited to, provisions whereby such Purchaser
shall be required to agree to any restrictions on trading as to any the securities of the Company or be required to consent to any amendment
to or termination of, or grant any waiver, release or the like under or in connection with, this Agreement, without the prior written
consent of such Purchaser. In addition, the Company and each Purchaser agree that, in connection with a Subsequent Financing, the transaction
documents related to the Subsequent Financing shall include a requirement for the Company to issue a widely disseminated press release
by 9:30 am (New York City time) on the Trading Day of execution of the transaction documents in such Subsequent Financing (or, if the
date of execution is not a Trading Day, on the immediately following Trading Day) that discloses the material terms of the transactions
contemplated by the transaction documents in such Subsequent Financing.
(h) Notwithstanding
anything to the contrary in this Section 4.10 and unless otherwise agreed to by such Purchaser, the Company shall either
confirm in writing to such Purchaser that the transaction with respect to the Subsequent Financing has been abandoned or shall publicly
disclose its intention to issue the securities in the Subsequent Financing, in either case in such a manner such that such Purchaser
will not be in possession of any material, non-public information, by 9:30 am (New York City time) on the second (2nd) Trading Day following
date of delivery of the Subsequent Financing Notice. If by 9:30 am (New York City time) on such second (2nd) Trading Day, no public disclosure
regarding a transaction with respect to the Subsequent Financing has been made, and no notice regarding the abandonment of such transaction
has been received by such Purchaser, such transaction shall be deemed to have been abandoned and such Purchaser shall not be deemed to
be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries.
(i) Notwithstanding
anything to the contrary pursuant to a Purchaser’s (and its Affiliates) rights to its Participation Maximum pursuant to this Section 4.10,
if the number of shares of Common Stock issuable to a Purchaser (and its Affiliates) pursuant to any proposed Subsequent Financing, when
aggregated with all other shares of Common Stock beneficially owned by such Purchaser (and its Affiliates) at such time of such Subsequent
Financing, would result in such Purchaser (and its Affiliates) beneficially owning (as determined in accordance with Section 13(d) of
the Exchange Act) in excess of 4.99% (or 9.99% at the election of the Purchaser) of the then issued and outstanding Common Stock outstanding
at the closing of the Subsequent Financing (the “ROP Beneficial Ownership Maximum”), then in lieu of receiving shares
of Common Stock in a Subsequent Financing that would result in such Purchaser (and its Affiliates) exceeding the ROP Beneficial Ownership
Maximum, such Purchaser (and its Affiliates) shall receive Common Stock Equivalents (such as pre-funded Common Stock purchase warrants)
with a beneficial ownership blocker in the form of Section 2(e) of the Warrants, mutatis mutandis, in order for such Purchaser
(and its Affiliates) to maintain a beneficial ownership at or below the ROP Beneficial Ownership Maximum.
(j) Notwithstanding
the foregoing, this Section 4.10 shall not apply in respect of an Exempt Issuance.
4.11 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 prior to the Closing, the Company shall apply to list or quote all of the Shares on such
Trading Market and promptly secure the listing of all of the 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 Shares, and
will take such other action as is necessary to cause all of the 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.
4.12 Subsequent
Equity Sales.
(a) From
the date hereof until 90 days after the Closing Date, neither the Company nor any Subsidiary shall issue, enter into any agreement to
issue or announce the issuance or proposed issuance of any Common Stock or Common Stock Equivalents (each, a “Subsequent Placement”);
provided, however, that beginning 30 days after the Closing Date the Company shall have the right to file a Registration Statement on
Form S-3 with the Commission, and cause any amendment, correspondence, or other documents, as may be required from time to time,
to be prepared, executed, and filed to cause such Form S-3 to become effective under the Securities Act.
(b) From
the date hereof until 180 days after the Closing Date, the Company shall be prohibited from effecting or entering into an agreement to
effect any issuance by the Company or any of its Subsidiaries of Common Stock or Common Stock Equivalents (or a combination of units
thereof) involving a Variable Rate Transaction. “Variable Rate Transaction” means a transaction in which the Company
(i) issues or sells any debt or equity securities that are convertible into, exchangeable or exercisable for, or include the right
to receive additional shares of Common Stock either (A) at a conversion price, exercise price or exchange rate or other price that
is based upon and/or varies with the trading prices of or quotations for the shares of Common Stock at any time after the initial issuance
of such debt or equity securities, or (B) with a conversion, exercise or exchange price that is subject to being reset at some
future date after the initial issuance of such debt or equity security or upon the occurrence of specified or contingent events directly
or indirectly related to the business of the Company or the market for the Common Stock or ii) enters into, or effects a transaction
under, any agreement, including, but not limited to, an equity line of credit, whereby the Company may issue securities at a future determined
price regardless of whether shares pursuant to such agreement have actually been issued and regardless of whether such agreement is subsequently
canceled. Any Purchaser shall be entitled to obtain injunctive relief against the Company to preclude any such issuance, which remedy
shall be in addition to any right to collect damages.
(c) Notwithstanding
the foregoing, this Section 4.12 shall not apply in respect of an Exempt Issuance, except that no Variable Rate Transaction shall
be an Exempt Issuance.
4.13 Equal
Treatment of Purchasers. No consideration (including any modification of any Transaction Document) shall be offered or paid to any
Person to amend or consent to a waiver or modification of any provision of the Transaction Documents unless the same consideration is
also offered to all of the parties to the Transaction Documents. For clarification purposes, this provision constitutes a separate right
granted to each Purchaser by the Company and negotiated separately by each Purchaser, and is intended for the Company to treat the Purchasers
as a class and shall not in any way be construed as the Purchasers acting in concert or as a group with respect to the purchase, disposition
or voting of Securities or otherwise.
4.14 Certain
Transactions and Confidentiality. Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither it
nor any Affiliate acting on its behalf or pursuant to any understanding with it will execute any purchases or sales, including Short
Sales of any of the Company’s securities during the period commencing with the execution of this Agreement and ending at such time
that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release as described
in Section 4.4. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions
contemplated by this Agreement are publicly disclosed by the Company pursuant to the initial press release as described in Section 4.4,
such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Disclosure
Schedules. Notwithstanding the foregoing and notwithstanding anything contained in this Agreement to the contrary, the Company expressly
acknowledges and agrees that (i) no Purchaser makes any representation, warranty or covenant hereby that it will not engage in
effecting transactions in any securities of the Company after the time that the transactions contemplated by this Agreement are first
publicly announced pursuant to the initial press release as described in Section 4.4, (ii) no Purchaser shall be restricted
or prohibited from effecting any transactions in any securities of the Company in accordance with applicable securities laws from and
after the time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release
as described in Section 4.4 and (iii) no Purchaser shall have any duty of confidentiality or duty not to trade in the securities
of the Company to the Company or its Subsidiaries after the issuance of the initial press release as described in Section 4.4.
Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers
manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions
made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant set forth above shall only apply
with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered
by this Agreement.
4.15 Acknowledgment
of Dilution. The Company acknowledges that the issuance of the Securities may result in dilution of the outstanding Common Stock,
which dilution may be substantial under certain market conditions. The Company further acknowledges that its obligations under the Transaction
Documents, including, without limitation, its obligation to issue the Shares pursuant to the Transaction Documents, are unconditional
and absolute and not subject to any right of set off, counterclaim, delay or reduction, regardless of the effect of any such dilution
or any claim the Company may have against any Purchaser and regardless of the dilutive effect that such issuance may have on the ownership
of the other stockholders of the Company.
4.16 No
Waiver of Lockup Agreement. The Company shall not amend, waive, modify or fail to use best efforts to enforce any provision of the
Lockup Agreement. For the avoidance of doubt, no Purchaser shall be a third-party beneficiary of any Lockup Agreement.
ARTICLE V.
MISCELLANEOUS
5.1 Termination.
This Agreement may be terminated by any Purchaser, as to such Purchaser’s obligations hereunder only and without any effect whatsoever
on the obligations between the Company and the other Purchasers, by written notice to the other parties, if the Closing has not been
consummated on or before the fifth (5th) Trading Day following the date hereof; provided, however, that no such
termination will affect the right of any party to sue for any breach by any other party (or parties).
5.2 Fees
and Expenses. Except as expressly set forth in the Transaction Documents to the contrary, each party shall pay the fees and expenses
of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident to the negotiation,
preparation, execution, delivery and performance of this Agreement. The Company shall pay all Transfer Agent fees (including, without
limitation, any fees required for same-day processing of any instruction letter delivered by the Company and any exercise notice delivered
by a Purchaser), stamp taxes and other taxes and duties levied in connection with the delivery of any Securities to the Purchasers. In
addition to the Transaction Expenses, the Company shall be responsible for the payment of any placement agent’s fees, financial
advisory fees, transfer agent fees, Depositary Fees (including without limitation any ongoing fees charged by the Depositary for Shares
issued hereunder and held by Purchaser in the future), DTC fees or broker’s commissions (other than for Persons engaged by any
Purchaser) relating to or arising out of the transactions contemplated hereby (including, without limitation, (x) any fees or commissions
payable to the Placement Agent, who is the Company’s sole placement agent in connection with the transactions contemplated by this
Agreement and (y) any fees required for same-day processing of any instruction letter delivered by the Company and any exercise
notice delivered by a Purchaser), and any stamp taxes and other taxes and duties levied in connection with the delivery of any Securities
to the Purchasers. The Company shall pay the legal expenses of one legal counsel to the Purchasers, in an aggregate maximum amount of
$30,000. The Company shall hold each Purchaser harmless against, any liability, loss or expense (including, without limitation, reasonable
attorneys’ fees and out-of-pocket expenses) arising in connection with any claim relating to any such payment. Except as otherwise
set forth in the Transaction Documents, each party to this Agreement shall bear its own expenses in connection with the sale of the Securities
to the Purchasers.
5.3 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.
5.4 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
email attachment at the email address as 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 date of transmission, if such notice or communication is delivered
via email attachment at the email 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. To the extent that any notice provided pursuant to any Transaction Document constitutes, or contains, material, non-public information
regarding the Company or any Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Current
Report on Form 8-K.
5.5 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 Purchasers which purchased (a) if on or prior to the Closing Date, 100% or (b) if
after the Closing Date, at least 50.1%, as applicable, in interest of the Shares based on the initial Subscription Amounts hereunder
or, in the case of a waiver, by the party against whom enforcement of any such waived provision is sought, provided that if any amendment,
modification or waiver disproportionately and adversely impacts a Purchaser (or group of Purchasers), the consent of such disproportionately
impacted Purchaser (or group of Purchasers) shall also be required. 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. Any proposed amendment or waiver that disproportionately, materially and adversely
affects the rights and obligations of any Purchaser relative to the comparable rights and obligations of the other Purchasers shall require
the prior written consent of such adversely affected Purchaser. Any amendment effected in accordance with this Section 5.5 shall
be binding upon each Purchaser and holder of Securities and the Company.
5.6 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.
5.7 Successors
and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns.
The Company may not assign this Agreement or any rights or obligations hereunder without the prior written consent of each Purchaser
(other than by merger). Any Purchaser may assign any or all of its rights under this Agreement to any Person to whom such Purchaser assigns
or transfers any Securities, provided that such transferee agrees in writing to be bound, with respect to the transferred Securities,
by the provisions of the Transaction Documents that apply to the “Purchasers.”
5.8 No
Third-Party Beneficiaries. The Placement Agent shall be the third party beneficiary of the representations and warranties of the
Company in Section 3.1 and the representations and warranties of the Purchasers in Section 3.2. This Agreement is intended
for the benefit of the parties hereto and their respective successors and permitted assigns and is not for the benefit of, nor may any
provision hereof be enforced by, any other Person, except as otherwise set forth in Section 4.8 and this Section 5.8.
5.9 Governing
Law. All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents shall be governed
by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts
of law thereof. Each party agrees that all legal Proceedings concerning the interpretations, enforcement and defense of the transactions
contemplated by this Agreement and any other Transaction Documents (whether brought against a party hereto or its respective affiliates,
directors, officers, shareholders, partners, members, employees or agents) shall be commenced exclusively in the state and federal courts
sitting in the City of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts
sitting in the City of New York, Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with
any transaction contemplated hereby or discussed herein (including with respect to the enforcement of any of the Transaction Documents),
and hereby irrevocably waives, and agrees not to assert in any Action or Proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such Action or Proceeding is improper or is an inconvenient venue for such Proceeding. Each party
hereby irrevocably waives personal service of process and consents to process being served in any such Action or 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 any 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 Section 4.8, the prevailing party in such Action or Proceeding shall be reimbursed by the non-prevailing
party for its reasonable attorneys’ fees and other costs and expenses incurred with the investigation, preparation and prosecution
of such Action or Proceeding.
5.10 Survival.
The representations and warranties contained herein shall survive the Closing and the delivery of the Securities.
5.11 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.
5.12 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.
5.13 Rescission
and Withdrawal Right. Notwithstanding anything to the contrary contained in (and without limiting any similar provisions of) any
of the other Transaction Documents, whenever any Purchaser exercises a right, election, demand or option under a Transaction Document
and the Company does not timely perform its related obligations within the periods therein provided, then such Purchaser may rescind
or withdraw, in its sole discretion from time to time upon written notice to the Company, any relevant notice, demand or election in
whole or in part without prejudice to its future actions and rights.
5.14 Replacement
of Securities. If any certificate or instrument evidencing any Securities is mutilated, lost, stolen or destroyed, the Company shall
issue or cause to be issued in exchange and substitution for and upon cancellation thereof (in the case of mutilation), or in lieu of
and substitution therefor, a new certificate or instrument, but only upon receipt of evidence reasonably satisfactory to the Company
of such loss, theft or destruction. The applicant for a new certificate or instrument under such circumstances shall also pay any reasonable
third-party costs (including customary indemnity) associated with the issuance of such replacement Securities.
5.15 Remedies.
In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, each of the Purchasers
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.
5.16 Payment
Set Aside. To the extent that the Company makes a payment or payments to any Purchaser pursuant to any Transaction Document or a
Purchaser enforces or exercises its rights thereunder, and such payment or payments or the proceeds of such enforcement or exercise or
any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside, recovered from, disgorged by or
are required to be refunded, repaid or otherwise restored to the Company, a trustee, receiver or any other Person under any law (including,
without limitation, any bankruptcy law, state or federal law, common law or equitable cause of action), then to the extent of any such
restoration the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such enforcement or setoff had not occurred.
5.17 Independent
Nature of Purchasers’ Obligations and Rights. The obligations of each Purchaser under any Transaction Document are several
and not joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way for the performance or non-performance
of the obligations of any other Purchaser under any Transaction Document. Nothing contained herein or in any other Transaction Document,
and no action taken by any Purchaser pursuant hereto or thereto, shall be deemed to constitute the Purchasers as a partnership, an association,
a joint venture or any other kind of entity, or create a presumption that the Purchasers are in any way acting in concert or as a group
with respect to such obligations or the transactions contemplated by the Transaction Documents. Each Purchaser shall be entitled to independently
protect and enforce its rights including, without limitation, the rights arising out of this Agreement or out of the other Transaction
Documents, and it shall not be necessary for any other Purchaser to be joined as an additional party in any Proceeding for such purpose.
Each Purchaser has been represented by its own separate legal counsel in its review and negotiation of the Transaction Documents. The
Company has elected to provide all Purchasers with the same terms and Transaction Documents for the convenience of the Company and not
because it was required or requested to do so by any of the Purchasers. It is expressly understood and agreed that each provision contained
in this Agreement and in each other Transaction Document is between the Company and a Purchaser, solely, and not between the Company
and the Purchasers collectively and not between and among the Purchasers.
5.18 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.
5.19 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 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.
5.20 Sales
During Pre-Settlement Period. Notwithstanding anything herein to the contrary, if at any time on or after the time of execution of
this Agreement by the Company and an applicable Purchaser, through and including the time immediately prior to the Closing (the “Pre-Settlement
Period”), such Purchaser sells to any Person all, or any portion, of any Shares to be issued hereunder to such Purchaser at
the Closing (collectively, the “Pre-Settlement Shares”), such Purchaser shall, automatically hereunder (without any
additional required actions by such Purchaser or the Company), be deemed to be unconditionally bound to purchase, and the Company shall
be deemed unconditionally bound to sell, such Pre-Settlement Shares to such Purchaser at the Closing; provided, that the Company shall
not be required to deliver any Pre-Settlement Shares to such Purchaser prior to the Company's receipt of the purchase price of such Pre-Settlement
Shares hereunder; and provided further that the Company hereby acknowledges and agrees that the forgoing shall not constitute a representation
or covenant by such Purchaser as to whether or not during the Pre-Settlement Period such Purchaser shall sell any Shares to any Person
and that any such decision to sell any Shares by such Purchaser shall be made, in the sole discretion of such Purchaser, at the time
such Purchaser elects to effect any such sale, if any.
5.21 WAIVER
OF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY, THE PARTIES EACH
KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY
AND EXPRESSLY WAIVES FOREVER TRIAL BY JURY.
(Signature Pages Follow)
IN WITNESS WHEREOF, the parties
hereto have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first
indicated above.
Cheetah
Net Supply Chain Service Inc. |
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[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE FOR PURCHASER FOLLOWS]
[PURCHASER SIGNATURE PAGES TO CHEETAH NET SUPPLY
CHAIN SERVICE INC.
SECURITIES PURCHASE AGREEMENT]
IN WITNESS WHEREOF, the undersigned
have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated
above.
Name of Purchaser: ________________________________________________________
Signature
of Authorized Signatory of Purchaser: _________________________________
Name of Authorized Signatory: _______________________________________________
Title of Authorized Signatory: ________________________________________________
Email Address of Authorized Signatory:_________________________________________
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address
for notice):
Subscription Amount: $_________________
Shares: _________________
EIN Number: _______________________
¨ Notwithstanding anything contained in this Agreement
to the contrary, by checking this box (i) the obligations of the above-signed to purchase the securities set forth in this Agreement
to be purchased from the Company by the above-signed, and the obligations of the Company to sell such securities to the above-signed,
shall be unconditional and all conditions to Closing shall be disregarded, (ii) the Closing shall occur on the second (2nd)
Trading Day following the date of this Agreement and (iii) any condition to Closing contemplated by this Agreement (but prior to
being disregarded by clause (i) above) that required delivery by the Company or the above-signed of any agreement, instrument,
certificate or the like or purchase price (as applicable) shall no longer be a condition and shall instead be an unconditional obligation
of the Company or the above-signed (as applicable) to deliver such agreement, instrument, certificate or the like or purchase price (as
applicable) to such other party on the Closing Date.
Exhibit A
Lock-Up Agreement
Exhibit 99.1
Cheetah Net Supply Chain Service Inc. Announces
Pricing of $1.49 Million Follow-on Public Offering
CHARLOTTE, N.C., July 25, 2024 (GLOBE NEWSWIRE)
-- Cheetah Net Supply Chain Service Inc. (“Cheetah Net” or the “Company”) (NASDAQ: CTNT), a provider of warehousing
and logistics services, historically in connection with the sale of parallel-import vehicles sourced in the U.S. to be sold in the PRC
market, and more recently for the transportation of other goods between the U.S. and the PRC, today announced that it has entered into
a securities purchase agreement with certain investors for a follow-on offering of 6,479,663 shares of Class A common stock, at a price
of $0.23 per share, for gross proceeds of approximately $1.49 million, before deducting offering related fees and expenses.
Cheetah Net intends to use the net proceeds received
from the offering for working capital and general corporate purposes. The offering is expected to close on or about July 26, 2024, subject
to satisfaction of customary closing conditions.
FT Global Capital, Inc. is acting as the exclusive
placement agent in connection with the offering.
The securities described above are being offered
by the Company pursuant to a registration statement on Form S-1 (File No. 333-280743) filed with the U.S. Securities and Exchange Commission
(the “SEC”), which was declared effective on July 15, 2024. A final prospectus relating to the offering will be filed with
the SEC and will be available on the SEC’s website at http://www.sec.gov. The offering is being made only by means of a prospectus
forming part of the effective registration statement. Electronic copies of the prospectus relating to this offering, when available, may
be obtained from FT Global Capital, Inc., 1688 Meridian Avenue, Ste. 700, Miami Beach, FL 33139. Before investing in this offering, interested
parties should read in its entirety the registration statement that the Company has filed with the SEC, which provides additional information
about the Company and this offering.
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
an offer, solicitation, or sale would be unlawful prior to registration or qualification under the securities laws of any such state or
jurisdiction.
About Cheetah Net Supply Chain Service Inc.
Cheetah Net is a provider of logistics and warehouse
services, as well as a facilitator of supply chain financing, historically known for supplying parallel-import vehicles. It purchased
automobiles, primarily luxury brands such as Mercedes, BMW, Porsche, Lexus, and Bentley, from the U.S. market and resold them to its customers,
including both U.S. and PRC parallel-import car dealers. The Company now focuses on facilitating non-vehicle trade, providing storage
services, logistics services, freight forwarding services, and inventory financing services to its clients. For more information, visit
the Company’s corporate website at: https://cheetah-net.com.
Forward-Looking Statements
This press release contains certain forward-looking
statements, including statements that are predictive in nature. Forward-looking statements are based on the Company’s current expectations
and assumptions. The Private Securities Litigation Reform Act of 1995 provides a safe harbor for forward-looking statements. These statements
may be identified by the use of forward-looking expressions, including, but not limited to, “anticipate,” “believe,”
“continue,” “estimate,” “expect,” “future,” “intend,” “may,” “outlook,”
“plan,” “potential,” “predict,” “project,” “should,” “will,” “would,”
and similar expressions that predict or indicate future events or trends or that are not statements of historical matters, but the absence
of these words does not mean that a statement is not forward-looking. The Company undertakes no obligation to publicly update any forward-looking
statement, whether as a result of new information, future events or otherwise. Important factors that could cause actual results to differ
materially from those in the forward-looking statements are set forth in the Company’s filings with the U.S. Securities and Exchange
Commission, including its registration statement on Form S-1, as amended, under the caption “Risk Factors.”
For more information, please contact:
Cheetah Net Supply Chain Service Inc.
Investor Relations
(704) 826-7280
ir@cheetah-net.com
Exhibit 99.2
Cheetah Net Supply Chain Service Inc. Announces
Closing of $1.49 Million Follow-on Public Offering
CHARLOTTE, N.C., July 26, 2024 (GLOBE NEWSWIRE)
-- Cheetah Net Supply Chain Service Inc. (“Cheetah Net” or the “Company”) (NASDAQ: CTNT), a provider of warehousing
and logistics services, historically in connection with the sale of parallel-import vehicles sourced in the U.S. to be sold in the PRC
market, and more recently for the transportation of other goods between the U.S. and the PRC, today announced the closing of its follow-on
offering of 6,479,663 shares of Class A common stock of approximately $1.49 million in gross proceeds, before deducting offering related
fees and expenses, as previously announced on July 25, 2024.
Cheetah Net intends to use the net proceeds received
from the offering for working capital and general corporate purposes.
FT Global Capital, Inc. acted as the exclusive
placement agent in connection with the offering. Hunter Taubman Fischer & Li LLC acted as counsel to the Company and ArentFox Schiff
LLP acted as counsel to the placement agent in connection with the transactions.
The securities described above were offered by
the Company pursuant to a registration statement on Form S-1 (File No. 333-280743) filed with the U.S. Securities and Exchange Commission
(the “SEC”), which was declared effective on July 15, 2024. A final prospectus relating to the offering was filed on July
26, 2024 with the SEC and is available on the SEC’s website at http://www.sec.gov. The offering was made only by means of a prospectus
forming part of the effective registration statements. Electronic copies of the prospectus relating to this offering may be obtained from
FT Global Capital, Inc., 1688 Meridian Avenue, Ste. 700, Miami Beach, FL 33139.
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
an offer, solicitation, or sale would be unlawful prior to registration or qualification under the securities laws of any such state or
jurisdiction.
About Cheetah Net Supply Chain Service Inc.
Cheetah Net is a provider of logistics and warehouse
services, as well as a facilitator of supply chain financing, historically known for supplying parallel-import vehicles. It purchased
automobiles, primarily luxury brands such as Mercedes, BMW, Porsche, Lexus, and Bentley, from the U.S. market and resold them to its customers,
including both U.S. and PRC parallel-import car dealers. The Company now focuses on facilitating non-vehicle trade, providing storage
services, logistics services, freight forwarding services, and inventory financing services to its clients. For more information, visit
the Company’s corporate website at: https://cheetah-net.com.
Forward-Looking Statements
This press release contains certain forward-looking
statements, including statements that are predictive in nature. Forward-looking statements are based on the Company’s current expectations
and assumptions. The Private Securities Litigation Reform Act of 1995 provides a safe harbor for forward-looking statements. These statements
may be identified by the use of forward-looking expressions, including, but not limited to, “anticipate,” “believe,”
“continue,” “estimate,” “expect,” “future,” “intend,” “may,” “outlook,”
“plan,” “potential,” “predict,” “project,” “should,” “will,” “would,”
and similar expressions that predict or indicate future events or trends or that are not statements of historical matters, but the absence
of these words does not mean that a statement is not forward-looking. The Company undertakes no obligation to publicly update any forward-looking
statement, whether as a result of new information, future events or otherwise. Important factors that could cause actual results to differ
materially from those in the forward-looking statements are set forth in the Company’s filings with the U.S. Securities and Exchange
Commission, including its registration statement on Form S-1, as amended, under the caption “Risk Factors.”
For more information, please contact:
Cheetah Net Supply Chain Service Inc.
Investor Relations
(704) 826-7280
ir@cheetah-net.com
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